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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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SELECTION  OF  CASES 


AND 


OTHER  AUTHORITIES 


UPON 


CRIMINAL    LAW 


BY 
JOSEPH  HENRY  BEALE,  Jr., 

BC«8ET    HROFKSSOR    OF    LAW    IN    HARVARD    VNIVERSITY. 


SECOND   EDITION. 


CAMBRIDGE: 

HARVARD  LAW   REVIEW  PUBLISHING  ASSOCIATION. 
1907. 


Copyright,  1907, 
By  Joseph  Henry  Beale,  Jr. 


^itibetsttg  Press : 
John  Wilson  and  Son,  Cambridge,  U.  S.  A. 


sj  PREFACE 

«x  TO   THE   SECOND   EDITION, 


It  has  seemed  desirable,  in  preparing  a  second  edition  of 
these  cases,  to  add  certain  elementary  topics  and  largely  to 
expand  other  general  topics  of  the  law.  As  a  result,  the  num- 
ber of  pages  devoted  to  the  more  general  principles  of  the 
subject  has  been  increased  from  less  than  350  to  more  than 
600.  In  order  to  keep  the  collection  within  the  limits  of  a 
single  volume,  it  was  deemed  best  to  omit  all  cases  upon 
criminal  pleading  and  procedure.  The  chapters  of  the  first 
edition  entitled  Criminal  Procedure,  The  Indictment,  Former 
Conviction  or  Acquittal,  Contempt  and  Disbarment,  Terri- 
torialJurisdiction,  and  Extradition  have  therefore  been  omitted 
from  this  edition,  and  will  be  published  in  a  separate  volume. 

Tlie  chapters  which  deal  with  the  general  principles  have 
not  only  been  much  enlarged ;  they  have  also  been  entirely 
rearranged,  as  a  result  of  sixteen  years'  experience  in  teaching 
tlie  subject.  In  this  rearrangement,  the  desire  has  been  to 
develop  clearly  the  analysis  of  the  subject  into  three  parts : 
the  nature  of  a  crime,  responsibility  for  crime,  and  justification. 

All  the  cases  which  were  printed  in  the  first  edition  have 
been  retained,  except  a  few  which  experience  has  shown  to  be 
absolutely  useless  for  the  purpose  of  instruction.  It  is  im- 
possible to  study  carefully  during  the  time  ordinarily  devoted 
to  this  topic  all  the  cases,  old  and  new,  in  the  book ;  but  it 
seemed  on  the  whole  better  to  print  them  all,  leaving  the 
instructor  to  select  the  cases  desired  for  discussion  in  class, 
and  enabling  the  student  to  read  and  study  for  himself  the 
omitted  cases. 

Joseph  IIenuy  Beale,  Jr, 

Camubiuue,  September  1,  1907. 


e^i 0^7 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

Microsoft  Corporation 


http://www.archive.org/details/bealeselectionofOObeal 


PREFACE. 


This  collectiou  of  cases  is  chiefly  intended  for  the  use  of 
classes  in  the  schools.  That  students  may  get  the  benefit  to 
be  derived  from  studying  cases,  it  is  necessary  to  omit  head- 
notes.  In  order,  however,  that  the  collection  may  be  useful  to 
the  lawyer  in  practice,  an  index  has  been  added,  which  is 
intended  to  enable  one  quickly  to  find  the  authorities  upon  any 
subject  herein  contained. 

Experience  shows  that  a  class  studying  such  a  collection  of 
eases  under  the  superintendence  of  an  instructor  is  by  no  means 
inclined  to  give  too  much  weight  to  the  mere  decision  of  a  case. 
But  those  who  may  study  this  book  without  the  help  of  a  teacher 
must  be  warned  not  to  regard  as  law  the  decision  of  every  case 
here  printed.  The  course  of  study  to  be  pursued  involves  a 
determination  of  the  point  decided,  a  careful  consideration  of 
the  reasons  which  led  the  court  to  its  decision,  a  comparison 
of  these  reasons  with  those  which  were  urged,  or  might  have 
been  urged,  on  the  opposite  side,  and  an  independent  solution  of 
the  question  by  the  student.  The  object  of  study  is  not  only  to 
gain  familiarity  with  the  legal  principles  usually  involved  in 
criminal  cases,  but  also  to  build  up  a  legal  mind  —  to  acquire 
the  science  of  legal  reasoning,  and  the  faculty  of  sound  legal 
common-sense. 

One  or  two  of  the  cases  are  now  for  the  first  time  printed. 
They  are  taken  from  a  contemporary  manuscript,  in  the  library 
of  the  Harvard  Law  School,  entitled  "  Anonymous  Reports 
temp.   Eliz.  and  Jac,  vol.  II."     The  manuscript  is  one  of  two 


Vi  PREFACE. 

presented  to  the  library  in  1835,  by  J.  J.  Wilkinson,  Esq., 
of  the  Temple,  London,  through  Judge  Story,  then  Dane  Pro- 
fessor. It  contains,  among  other  reports,  cases  in  the  King's 
Bench  during  the  first  ten  years  of  James  I.  The  reports  for 
the  first  five  terms  are  identical  with  those  at  the  beginning  of 
Croke's  James  ;  the  remainder  of  them  have  never  been  printed. 
Upon  a  comparison  of  these  reports  with  other  reports  which 
have  been  printed  of  some  of  the  cases,  the  reporter  seems  to 
have  been  careful  and  accurate,  and  fuller  and  more  graphic 
than  his  contemporaries.  The  reports  appear  to  have  been  re- 
garded with  favor;  another  manuscript  copy,  covering  some  of 
the  years,  is  in  the  Social  Law  Library,  Boston. 

JOSEPH  HENRY  BEALE,  Jr. 

Cambridge,  September  1,  1894. 


TABLE  OF  CONTENTS. 


ChAPTEB  I.      iNTBODrCTOBT.  ^^^^' 

Section     I.     Sources  of  Criminal  Law 1 

Section  IL     Nature  of  Crime 40 

Cg^£IEft  n.    The  Offence:    Kinds  of  Offence. 

Section      L     Felonies       51 

Section    II.     Misdemeanors 57 

Section  III.     Public  Torts 99 

Section  IV.     Incomplete  OfTences 120 

Chapteb  III.    The  Offence:    Elements  or  the  Oftence. 

Section     I.     Necessity  of  an  Act 151 

Section    II.     Omission  as  an  Act IC4 

Section  III.     A  Specific  Intent  as  Part  of  an  Act 183 

Section  IV.     Jurisdiction  over  Act 202 

Chapteb  IV.    The  Oftence:   Modiftino  Cikcvmstances. 

Section     I.     Participation  of  a  Public  Officer 231 

Section    II.     Acquiescence  of  the  Injured  Party 23G 

Section  HI.     Consent  of  the  Injured  Party 240 

Section  I\'.     Fault  of  the  Injured  Party 270 

Section    V.     Negligence  of  the  Injured  Party 280 

Section  VL     Condonation 283 

Chapteb  V.    Responsibiuty:  Causation. 

Section     I.     Means  of  Commission 291 

Section    II.     Remotenes3 3qO 

Section  III.     Contributing  Acts 330 

CnAPTEB  \1.    Responsibilitt:    Culp ability. 

Section     I.     What  Crimes  Require  a  Guilty  Mind 35G 

Section    II.     The  mens  rca:   Intent 394 

Section  III.     Tlie  vicns  rca:    Negligence 422 

Cpapteh  ^^I.    Responsibility:   Effect  of  Mental  Limitation. 

Section      I.     Insanity ^^q 

Section    II.     Intoxication 4^4 

Section  III.     Coercion      475 

Section  IV.     Infancy:  Incorporation 479 

Section    V.     Ignorance  or  Mistake 482 


Viii  TABLE   OF  CONTENTS. 

Pages. 

Chaftee  viii.    Affibmative  Defence:   Justification. 

Section     I.     Public  Authority 492 

Section    II.     Domestic  Authority 496 

Section  III.     Warrant 500 

Section  IV.     Prevention  of  Crime 502 

Section    V.     Necessity 520 

Section  VI.     Public  Benefit 524 

Chapter  IX.    Affiemative  Defence:   Excuse. 

Section     I.     Self-Defence 532 

Section   II.     Defence  of  Other  Persons 566 

Section  III.     Defence  of  Property 569 

Section  IV.     Compulsion 579 

Section    V.     Extreme  Benefit 586 

Section  VI.     Custom    •    •    •    • 594 

Chapter  X.     Parties  in  Crime. 

Section      I.     Who  are  Parties 601 

Section    II.     Innocent  Agents 621 

Section  III.     Joint  Principals 624 

Section  IV.     Principals  in  the  Second  Degree 627 

Section    V.     Accessories 632 

Section  VI.     Acts  done  in  pursuance  of  a  common  design 637 

Chapter  XI.    Crimes  against  the  Person. 

Section     I.     General  Principles 654 

Section    II.     Assault  and  Battery 656 

Section  III.     Rape 661 

Section  IV.     Murder 665 

Section    V.     Degrees  of  Murder 679 

Section  VI.     Manslaughter 681 

Chapter  XII.     Larceny. 

Section     I.     What  Property  is  the  Subject  of  Larceny 696 

Section    II.     Possession. 

(a)  The  Act  of  Assuming  Possession 716 

(6)   Distinction  between  Possession  and  Custody 731 

(c)  Possession  in  case  of  Finding '66 

(d)  Tortious  Possession 801 

Section  III.     Taking  after  Delivery. 

(a.)   Larceny  by  Bailee 835 

( b )  Larceny  by  Breaking  Bulk,  etc 842 

Section  IV.     Taking  by  Consent. 

(a)   What  constitutes  Consent 852 

(6)   Larceny  by  Trick 859 

(c)  Delivery  by  Mistake 868 

Section     V.     Transfer  of  Title 884 

Section    VI.     Aninvus   Furandi 905 

Section  VII.     Aggravated  Larceny. 

(a)  Robbery  and  Larceny  from  the  Person 943 

(b)  Larceny  from  a  Building 945 


TABLE   OP   CONTENTS. 


IX 


Chapter  XIII.     Embezzlement 9^5q 

Chapter  XIV.     Obtaining  Property  by  False  Pretences. 

Section     I.     The  Question  of  Title 9g2 

Section    II.     Property *  ggg 

Section  III.     The  Pretence '.    !    !  969 

Chapter  XV.    Receiving  Stolen  Property. 

Section     I.     The  Receiving jQOg 

Section    II.     Stolen  Property 2qj3 

Section  III.     Guilty   Knowledge !    !  1025 

Chapter  XVI.     Crimes  against  the  Dwelling-House. 

Section      I.     Burglary jQ2g 

Section    II.     Arson      ....  m.- 
104i) 

Chapter  XVII.    Fobgery     jQ^g 

Chapter  XVIII.     Criminal  Conspiracy 

Section     I.     Under  Ancient  Statutes 2064 

Section    II.     Conspiracy  in  General 1067 

Section  III.     Conspiracy  and  other  Offences  against  Trade     ....  1077 

^^^^^^^ 1103 


TABLE  OF  CASES. 


Acers  v.  U.  S. 

Adams  v.  S. 

C.  V. 

R.  V.  (22  Q.  B.  D.  66) 
R.V.  (R.  &  R.  225) 
R.v.  (1  F.  &F.  86) 
Ah  Fat,  S.  V. 
Aldrich  v.  P. 
Allen,  S.  V. 
Anderson  v.  S. 
Anon.  (Comb.  46) 
(1  Cox,  250) 
(Dyer,  99  a) 
( Fost.  439 ) 
(Kel.  31) 
(Kel.  35) 
(Kel.  58) 
(2  Leon.  12) 
(3  Mod.  97) 
(8  Mod.  165) 
(12  Mod.  342) 
(Moore,  660) 
(Y.  B.  2  &  3  Ed.  II.  120) 
(Y.  B.  1  Ed.  III.  18) 
(Y.  B.  11  &  12  Edw.  III. 
(Lib.  Assis.  137) 
(Lib.  Assis.  137) 
(Lib.  Assis.  287) 
(Y.  B.  7  Hen.  IV.  43) 
(Y.  B.  4  Hen.  VU.  5) 
(Y.  B.  II  Hen.  VII.  1) 
(Y.  B.  13  Hen.  VII.  10) 
(Y.  B.  13  Hen.  VII.  14) 
(Y.  B.  21  Hen.  VII.  39) 
(Y.  B.  19  Hen.  VIII.  2) 
Armstrong,  R.  v. 
Arp  V.  S. 

Articles  of  Inquest 
Asher,  S.  v. 
Ashton's  Case 
Ashwell,  R.  V. 
Ateheson  v.  Everitt 
Atkinson,  R.  v. 


B. 


Pages. 
559 
010 
411 
90 
964 
1025 
340 
728 
639 
179 
71 
271 
1029 
486 
476 
732 
537 
594 
71 
601 
117 
1030 
94 
70 
640)  696 
475 
731 
151 
819 
820 
1045 
627 
408 
569 
698 
204 
580 
1078 
161 
637 
785 
42 
886 


Pages. 

Bailey,  R.  v. 

483 

Baker  v.  S. 

112 

Baldwin,  C.  v. 

1058 

S.  V. 

45 

Bamber,  R.  v. 

520 

Bancroft  v.  Mitchell 

43 

Bank  of  New  South  Wales  v.  Pip< 

-T  382 

Banks,  R.  v. 

836 

Bankus  v.  S. 

596 

Bannen,  R.  v. 

622 

Barker  v.  P. 

20 

Barnard,  R.  v. 

971 

Barnes,  R.  v. 

954 

Barrow,  R.  v. 

261 

Barry,  C.  v. 

719 

Bass,  R.  V. 

750 

Bazeley's  Case 

742 

Beard  v.  U.  S. 

555 

Beattie  v.  S. 

181 

Beatty  v.  Gillbanka 

305 

Beecham,  R.  v. 

928 

Belk  V.  P. 

298 

Bennett,  R.  v. 

294 

Berry,  C.  v. 

958 

Bingley,  R.  v. 

624 

Birney  v.  S. 

387 

Black,  S.  V. 

967 

Blackham,  R.  v. 

409 

Blake,  R.  v. 

82 

Botkin,  P.  V. 

229 

Boyce,  R.  v. 

184 

Boynton,  C.  v. 

390 

Bradford,  R.  v. 

41 

Bradlaugh,  R.  v. 

105 

Bradshaw,  R.  v. 

266 

Branworth,  R.  v. 

111 

Breese  v.  S. 

631 

Brig  William  Gray,  The 

520 

Brocheshevet  v.  Maren 

56 

Brooks,  C.  V. 

522 

Brown,  R.  v.  (3  Salk.  189) 

40 

R.  V.  (14  Cox,  144) 

634 

Bruce,  R.  v. 

409 

Xll 


TABLE   OF   CASES. 


Pages. 

Pages 

Bryan,  R.  v. 

973 

Detroit  White  Lead  Works,  P. 

V.     529 

Buekmaster,  R.  v. 

889 

Dickinson,  R.  v. 

915 

Bimce,  R.  v. 

862 

Dobbs's  Case 

183 

Burke,  C.  v. 

661 

Dolan,  R.  v. 

1013 

Burnett,  R.  v. 

118 

Donahue,  C.  v. 

576 

Bush  V.  C. 

342 

Donaldson,  S.  v. 

1089 

Button,  P.  V. 

546 

Donnelly,  S.  v. 

553 

R.  V. 

1003 

Doody,  R.  V. 

464 

Downes,  R.  v. 

171 

C. 

Drew,  C.  v. 

988 

Drum,  C.  v. 

552 

Cabbage,  R.  v. 

913 

Dudley,  R.  v. 

587 

Callaghan,  C.  v. 

64 

Dugdale  v.  R. 

155 

Campbell,  C.  v. 

350 

Dykes,  R.  v. 

477 

Carr,  R.  v. 

1022 

Carrier's  Case 

842 

E. 

Carter,  S.  v. 

218 

Car\'er,  S.  v. 

79 

Eckert,  C.  v. 

99 

Case,  R.  v. 

246 

Edmonds  v.  S. 

722 

Castell  V.  Bambridge 

291 

Edwards,  R.  v.  (13  Cox,  384) 

853 

Chamberlain,  R.  v. 

424 

R.  V.   (8  Mod.  320) 

1067 

Chapman,  C.  v. 

6 

Egan,  R.  v. 

439 

Cheafor.  R.  v. 

700 

Eggingto»-'s  Case 

238 

Chicago  M.  &  S.  P.  Ry.,  S.  v. 

392 

Elder,  P.  v. 

651 

Chisholm  v.  Doulton 

375 

Esop,  R.  V. 

485 

Chissers,  R.  v. 

732 

Evans,  S.  v. 

561 

Choice  V.  S. 

472 

Churchill,  C.  v. 

34 

F. 

Clarence,  R.  v. 

250 

Clark,  U.  S.  v. 

504 

Fabian  v.  Grodfrey 

55 

Clayton,  R.  v. 

633 

Faulkner,  R.  r?. 

194 

Cleary  v.  Booth 

497 

Fidling,  R.  v. 

1031 

Closs,  R.  V. 

1049 

Finlayson,  R.  v. 

784 

Collberg,  C.  V. 

268 

Flanagan  v.  P. 

450 

Collins,  R.  V. 

121 

Fleener  v.  S. 

284 

Colvin  V.  S. 

1060 

Flowers,  R.  v. 

793 

Compton,  R.  v. 

500 

Foley,  R.  v. 

805 

Conde,  R.  v. 

167 

Foster,  C.  v. 

959 

Coney,  R.  v. 

605 

Francis,  R.  v. 

943 

Cook,  P.  V. 

341,  568 

Franklin,  R.  v. 

410 

R.  V. 

57 

Fray's  Case 

685 

Coombs,  S.  V. 

817 

Fretwell,  R,  v. 

162 

Cooper's  Case 

570 

Friend,  R.  v. 

165 

Creighton,  C.  v. 

562 

Cross,  R.  V. 

116 

G. 

Crouther's  Case 

63 

Crump  V.  C. 

1094 

Gamlen,  R.  v. 

465 

R.  V. 

916 

Gardner,  P.  v. 

822 

Crutchley,  R.  v. 

579 

R.  V. 

917 

Cullum,  R.  V. 

951 

Gay  V.  S. 

349 

Gessert,  S.  v. 

203 

D. 

Gibney,  C.  v. 

83 

Gill,  R.  V. 

151 

Dadson,  R.  v. 

502 

Glover  t;.  C. 

136 

Daley,  C.  v. 

478 

Goodenow,  S.  v. 

490 

Dalloway,  R.  v. 

281 

Goodhall,  R.  v. 

969 

Davies,  R.  v. 

1033 

Gore's  Case 

190 

Davis,  R.  V.  (15  Cox,  174) 

333 

Goss,  R.  V.        V 

981 

n.  V.  (14  Cox,  568) 

465 

Gray,  R.  v. 

1032 

U.  S.  V. 

202 

Green,  C.  i'. 

123 

Delaval,  R.  v. 

110 

Greenwood,  R.  v. 

295 

DeMamy,  R.  v. 

313 

Grej'^8  Case 

667 

TABLE   OF   CASES. 


xm 


Pages. 

Pages. 

Griffin,  R.  i). 

496 

James,  C.  v. 

849 

Grimm  v.  U.  S. 

232 

Jennison,  R.  v. 

986 

Johnson  v.  S. 

434 

H. 

S.v. 

473 

Johnson's  Case 

1033 

Hackett,  C.  v. 

329 

Jones,  R.  V.  (2  Ld.  Raym.  1013) 

41 

Hadley  v.  S. 
C.  V. 

677 
610 

R.v.  (2  Str.  1146) 

U.  S.  V. 

61 

585 

Haines,  R.  v. 

332 

Journeyman-Tailors,  R.  v. 

1081 

Halfin  V.  S. 

37 

Hall,  R.  V.  (3  C.  &P.  409) 

484 

K. 

R.V.  (3  Cox,  245) 

927 

Hall's  Case 

116 

Kanavan's  Case 

107 

Halliday,  R.  v. 

316 

Keaton  v.  S. 

354 

Hands,  R.  v. 

855 

Keefer,  P.  v. 

643 

Hanks  v.  S. 

208 

Keenan,  S.  v. 

49 

Hannon,  R.  v. 

94 

Kelly,  R.  v. 

184 

Harkins,  C.  v. 

996 

Kennedy,  C.  v.  (170  Mass.  18) 

137 

Harmon,  U.  S.  v. 

407 

C.  V.  (IGOMass.  312) 

284 

Hartnett,  C.  v. 

945 

Kennel  v.  Church 

51 

Hathaway,  R.  v. 

91 

Kew,  R.  r. 

281 

Hawkins,  S.  v. 

642 

Kilham,  R.  v. 

962 

Haynes,  R.  v. 

443 

King  V.  P. 

113 

Hays,  C.  v. 

955 

C.  V. 

102 

Headge,  R.  v. 

950 

Knapp,  C.  V. 

628 

Heath,  R.  v. 

154 

Knight,  R.  v. 

201 

Hehir,  R.  v. 

796 

S.v. 

207 

Hendrickson  v.  C. 

319 

Knoxville,  S.  v. 

494 

Hendry  v.  S. 

599 

Kostenbauder,  C.  v. 

618 

Henry,  C.  v. 

1062 

Herthale,  R.  v. 

532 

L. 

Hewlett,  R.  v. 

537 

Hildebrand  v.  P. 

736 

Lafferty,  Ohio  v. 

11 

Holder,  C.  v. 

822 

Langbridge's  Case 

1 

Holland,  R.  v. 

280 

Lannan,  C  v. 

738 

Holloway,  R.  v. 

923 

Larner,  R.  v. 

1001 

Holmes's  Case 

1045 

Lascelles  v.  S. 

1062 

Holt,  S.  V. 

78 

Latimer,  R.  v. 

198 

Hormed  v.  Hacon 

52 

Lavender,  R.  v. 

751 

Horton,  S.  v. 

413 

Ledgerwood  v.  S. 

23 

Hudson,  R.  v. 

272 

Lee  Kong,  P.  v. 

126 

U.  S.  V. 

18 

Leigh's  Case 

836 

Huggett's  Case 

682 

Leigh  ton,  P.  v. 

680 

Hugh,  R.  V.  (Abbr.  Plac.  19) 

56 

Le  Mott's  Case 

1031 

R.v.  (Y.  B.  30&31Ed.  I. 

529)   52 

Leonard,  R.  i;. 

1026 

Hunt,  C.  V. 

1082 

Lesley,  R.  v. 

492 

S.v. 

727 

Lester,  C.  v. 

949 

Hurley,  S.  v. 

148 

Levett's  Case 

482 

Hurst,  P.  V. 

960 

Lewis,  P.  V. 

345 

In  re 

287 

I. 

Lewis,  Prior  of,  v.  Bishop  of  Ely        1 

Lindsey  i\  S. 

216 

Instan,  R.  v. 

174 

Linkhaw,  S.  v. 

105 

Isaac's  Case 

1047 

Little,  R.  V. 

883 

Ivens,  R.  v. 

61 

Livingston  v.  C. 

336 

Ives,  R.  V. 

1023 

Lombard's  Case 

1079 

Lovell,  R.  v. 

853 

J. 

Lowe,  R.  V. 

166 

Lowrey,  C.  v. 

626 

Jackson  v.  C. 

205 

Lucas,  S.  V. 

641 

S.  V. 

58 

Lynn,  R.  v. 

106 

Jaffe,  P.  V. 

130 

Lyons,  R.  v. 

1032 

XIV 


TABLE   OF   CASES. 


Pages. 

Pages. 

M. 

Norton,  C.  v. 
Nerval,  R.  v. 

994 
754 

McAfee,  C.  v. 

499 

Note  (Dyer  5  a) 

741 

McCarty,  Resp.  v. 
McCord  V.  P, 

580 
276 

(Fitz.  Abr.  Coron. 
(Y.  B.  21Edw.  III. 

361) 

17) 

532 
532 

McDaniel,  R.  v. 

292 

(Y.  B.  43  Lib.  Assis 

.  31) 

533 

McDaniel's  Case 

236 

(Y.  B.  3  Hen.  Vll. 

12) 

740 

McDonald,  C.  v. 

125 

(Y.  B.  21  Hen.  VII 

.14) 

741 

M'Growther's  Case 

476 

Macloon,  C.  v. 

220 

0. 

M'Naghten's  Case 

440 

Madox,  R.  V. 

845 

O'Brien,  S.  v. 

322 

Maher  v.  P. 

690 

O'Malley,  C.  v. 

735 

Malin,  Resp.  v. 
ilanney's  Case 

129 

70 

P. 

' 

Marshall,  C.  v. 

33 

Martin,  R.  v.  (R.  &  R.  196) 

231 

Pardenton,  R.  v. 

119 

R.  V.  (2  Moo.  123) 

265 

Parks,  P.  V. 

614 

R.V.  (8Q.  B.  D.  54) 

302 

Parsons  v.  S. 

451 

Mash,  C.  V. 

388 

Patterson,  S.  v.  (66  Kan.  447) 

277 

Mason  v.  P. 

1036 

S.  V.  (45  Vt.  308) 

571 

Maud,  R.  V. 

93 

Pear,  R.  v. 

859 

Memorandum  (Fitz.  Abr.  Coron. 

Pearson's  Case 

464 

261) 

533 

Peaslee,  0.  v. 

140 

(Kel.  52) 

621 

Pembliton,  R.  v. 

191 

(Y.  B.  43  Edw.  III.  33) 

164 

Phillips,  C.  V. 

634 

(Y.  B.  4  Hen.  VII.  2) 

534 

Pierce,  C.  v. 

429 

Merry  v.  Green 

767 

Pigot,  R.  V. 

41 

Meyer,  P.  v. 

725 

Pitts,  R.  V. 

301 

Middleton,  R.  v. 

868 

Pittwood,  R.  V. 

177 

Miller,  C.  v. 

527 

Pocock,  R.  V. 

325 

R.V. 

1007 

Poulterer's  Case 

1064 

Mills,  P.  V. 

234 

Powers,  R.  v. 

821 

R.  V. 

971 

Poyser,  R.  v. 

847 

Mink,  C,  V. 

420 

Pratt,  R.  V. 

839 

Mitchell  V.  S. 

16 

Preston,  R.  v. 

776 

R.  V. 

300 

Prince,  R.  v.  (L.  R.  2  C. 

C.  154) 

395 

Mitchum  t>.  S. 

857 

R.  V.  (L.  R.  1  C.  C. 

150) 

886 

Moore,  P.  v. 

658 

Prius,  C.  V. 

1073 

-R.V. 

884 

Prowes,  R.  v. 

821 

S.  V. 

158 

Pywell,  R.  V. 

1070 

Morby,  R.  v. 

326 

Morfit,  R.  V. 

914 

Q. 

Morly's  Case 
Morrill,  C.  v. 

681 

274 

Quinn  v.  P. 

1037 

Morris  Run  Coal  Co.  v.  Barclay 

R. 

Coal  Co. 

1100 

Morrison,  R.  v. 

713 

Ragg,  R.  V. 

981 

Morse  v.  S. 

157 

Randall,  R.  v. 

524 

P.    V. 

933 

Randolph,  C.  v. 

145 

Mucklow,  R.  V. 

766 

Raven,  R.  v. 

835 

Mullaly  V.  P. 

710 

Ray,  C.  V. 

1056 

Murphy,  R.  v. 

503 

Reed,  R.  v.  ( 12  Cox,  1 ) 

594 

Myers  v.  S. 

386 

R.  V.  (6  Cox.  284) 
Renshaw,  R.  v. 

755 
656 

N. 

Resolution  (And.  114) 
Reynolds  v.  U.  S. 

1030 
406 

Nelson  v.  Rex 

930 

Richards,  Tl.  v. 

100 

New  Bedford  Bridge,  C.  v. 

480 

S.  V. 

447 

Nicholls,  R.  V. 

427 

Richardson,  R.  v.  (Leach,  387) 

601 

Norris,  R.  v. 

300 

R.  V.  (6  C.  &P.  335) 

1006 

Norris  v.  Buttingham 

55 

Riddle,  U.  S.  v. 

156 

TABLE    OF    CASES. 


Riley,  R.  v. 
Ritson,  R.  V. 
Robins,  R.  v. 
Robinson,  R.  v. 
Roderick,  R.  v. 
Rogers,  C.  v. 

P.   V. 
Ronkett,  R.  v. 
Rose,  R.  V. 
Roth  well,  R.  V. 
Rowe,  R.  V. 
Rubin,  C.  v. 
Ruggles,  P.  V. 
Rulofr  V.  P. 
Riiperes  v.  Ashby 
Russett,  R.  V. 
Ryan,  C.  v. 


St.  John,  C.  V. 
Salmon,  R.  v. 
Scates,  S.  v. 
Schmidt,  R.  v. 
Searing,  R.  v. 
Selway.  R.  v. 
Serng,  R.  v. 
Seymour,  R.  v. 
Sharpe,  R.  v. 
Sharpless,  C.  v. 

n.v. 

Shaw,  C.  V. 

Sheppard,  R.  v. 

Sherman,  S.  v. 

Sherras  v.  De  Rutzen 

Shickle,  R.  v. 

Shorter  v.  P. 

Silsbee,  C.  v. 

Skerrit,  R.  v. 

Slattery,  C.  v. 

Slowly,  R.  V. 

Smith  V.  P.   (53  N.  Y.  HI) 

(25  111.  17) 

C.v.  (6Cush.  80) 

(111  Mass.  429) 

H.  V.   (1  Stra.  704) 

(11  Cox,  210) 

(Dears.  559) 

(1  Cox,  260) 

( 1  Russ.  C.  &  M.  458 ) 

(Dears.  494) 

S.  V. 

U.  S.  V. 
Solomons,  R.  v. 
Spies  V.  P. 
Spurgeon,  R.  v. 
Squire,  R.  v. 
Stanley  v.  S. 
Starin  v.  P. 
Stearns,  S.  v. 
Stedman,  R.  v. 


Pages. 

Pages. 

815 

Steimling,  C.  v. 

812 

1052 

Stephens,  R.  r. 

372 

748 

U.  S.  L-. 

133 

965 

Stephenson,  C.    -. 

1035 

120 

R.v. 

72 

444 

Stevens  v.  Dimond 

38 

467 

Steward,  C.  v. 

1034 

526 

Stolfer  V.  S. 

542 

566 

Stonehouse,  R.  v. 

40 

689 

Storey  v.  S. 

511 

781 

Stratton,  C.  v. 

263 

866 

R.  V. 

270 

103 

Sutton,  R.  V. 

152 

637 

Swindall,  R.  v. 

602 

57 

897 

T. 

762 

Taylor,  C.  v. 

87 

S.  V.  (70  Vt.  1)     , 

187,  653 

(3  Dutch.   117) 

706 

Taylor's  Case 

09 

286 

Teischer,  R.  v. 

85 

426 

Tliomas  v.  Kinkead 

515 

338 

Thomas,  P.  v. 

•966 

1017 

Thompson  v.  S. 

724 

699 

C.  V. 

489 

944 

R.  V. 

685 

669 

Thristle,  R.  v. 

S37 

67 

Thurborn,  R.  v. 

770 

394 

Tibbits,  R.  v. 

74 

108 

Tideswell,  R.  v. 

900 

852 

Tinkler,  R.  v. 

487 

709 

Titus,  C.  V. 

782 

189 

Tollett,  R.  V. 

752 

564 

Tolson,  R.  V. 

356 

379 

Tomson,  R.  v. 

666 

704 

Toplewski  v.  S. 

240 

538 

Towers,  R.  v. 

295 

59 

Townley,  R.  v. 

mi 

627 

Towse,  R.  V. 

488 

283 

Trebilcock,  R.  v. 

919 

733 

Tucker,  C.  v. 

1048 

864 

Tunnard's  Case 

844 

1074 

Turner,  R.  v. 

106S 

113 

Tyrrell,  R.  v. 

615 

947 

115 

V. 

167 

185 

Vandine,  Pet. 

28 

479 

Vick  V.  S. 

598 

502 
1008 

W. 

672 

17 

Wade,  R.  v. 

1006 

894 

Wakeling,  R.  v. 

970 

644 

Walker  v.  S. 

1042 

916 

F.v. 

474 

164 

Walsh  V.  P. 

143 

829 

R.v. 

716 

635 

Warburton,  R.  v. 

1071 

47 

Ward  V.  P. 

819 

685 

Waters,  R.  v. 

323 

XVI 


TABLE   0¥   CASES. 


Watson.  R.  v. 
Watts,  R.  V. 
Webster,  C.  v. 

R.  V. 
Welsh,  R.  V. 
West,  R.  V. 
Wheatly,  R.  v. 
Whitcomb,  C.  v. 
White,  C.  V. 

R.  V.  (L.  R.  1  C.  C.  311) 

(6  Cox,  213) 

(1  F.  &  F.  665) 
Wild's  Case 
Wilkinson,  R.  v. 
Willard.  C.  v. 
Williams  v.  East  India  Co. 


751 
701 
673 
907 
687 
780 
95 
995 
657 
168 
717 
1026 
570 
905 
616 
119 


Williams,  R.  v. 
Wiltberger,  U.  S.  v. 
Wing,  C.  V. 
Wise  V.  Dunning 
Wispington  v.  Edlington 
Wody,  R.  V- 
Wolfstein  v.  P. 
Wood,  S.  V. 
Woodward,  R.  v. 
Wray,  S.  v. 
Wright's  Case 
Wyckoff,  S.  V. 


Yong's  Case 


186 

31 

91 

308 

51 

697 

880 

344 

1011 

525 

263 

211 


666 


"  Nothing  is  more  common  than  to  hear  those  who  have  taken 
only  a  superficial  view  of  the  Crown  Law  charge  it  with  number- 
less hardships  and  undistinguishing  rigor;  whereas  those  who 
have  more  fully  examined  it  agree  that  it  wants  nothing  to  make 
it  admired  for  clemency  and  equity,  as  well  as  justice,  but  to  be 
understood.  It  is  so  agreeable  to  reason,  that  even  those  who 
suffer  by  it  cannot  charge  it  with  injustice  ;  so  adapted  to  the 
common  good  as  to  suffer  no  folly  to  go  unpunished,  which  that 
requires  to  be  restrained  ;  and  yet  so  tender  of  the  infirmities  of 
human  nature,  as  never  to  refuse  an  indulgence  where  the  safety 
of  the  public  will  bear  it.  It  gives  the  Prince  no  power,  but  of 
doing  good  ;  and  restrains  the  people  from  no  liberty,  but  of 
doing  evil."  —  Preface  to  Hawkins'  Pleas  of  the  Crown. 


CASES  ON  CRIMINAL  LAW. 


CHAPTER   I. 


^        \\' 


INTRODUCTORY. 

SECTION   I. 

Sources  of  Criminal  Law. 

\ 
t  ■ 

PRIOR   OF   LEWIS    v.  BISHOP  OF   ELY. 

Common  Bench.     1304. 

[Reported  Year  Book  32  Edw.  I.  3L] 

This  was  a  suit  brought  against  tiie  defendant  to  test  the  right  of 
appointment  b}'  the  bishop  to  a  living  which  was  within  tlie  gift  of  the 
prioi'.  Tlie  prior  alleged  that  he  had  presented  a  suitable  pei'son  for 
the  living  but  the  bishop  refused  him,  and  appointed  another  person. 

Touthehy  for  the  defendant  alleged  that  the  person  presented  was  an 
unsuitable  person  for  three  reasons  stated  b}'  him.^ 

Herle  for  the  plaintiff.  He  presented  a  suitable  person  ready  &c. 
where  and  when  &c.  But  consider  whether  he  shall  be  received  to 
aver  these  three  causes ;  for  the  judgment  to  be  by  3-ou  now  given  will 
be  hereafter  an  authority  in  every  Quare  non  admislt  in  England. 


LANGBRIDGE'S   CASE. 

Common  Bench.     1345. 

[Reported  Year  Book  19  Edio.  III.  375.] 

This  was  a  suit  to  recover  land.  The  party  defendant  (called  the 
tenant)  made  default ;  whereupon  Langbridge  prayed  that  he  might  be 
admitted  to  defend,  because  the  tenant  had  only  a  life  estate,  and  the 
remainder  was  in  himself.^ 

^  The  statement  of  the  case  has  been  simplified,  and  only  such  portions  of  the  case 
are  given  as  bear  on  the  sources  of  law.  —  Ed. 

1 


t 


X? 


2 


LANGBRIDGE  S   CASE. 


[chap.  I. 


V 


Huse  (for  the  petitioner)  produced  a  deed  showing  the  gift. 

B.  Thorpe  (for  the  demandant).  You  see  plainly  that  his  right  is  not 
proved  by  record  or  by  fine,  and  we  cannot  have  any  answer  to  this 
deed  nor  is  it  an  issue  to  say  tliat  he  has  nothing  in  remainder;  and 
since  we  cannot  have  an  answer  to  his  statement,  we  pray  seisin. 

Sharshulle,  J.  One  has  heard  speak  of  that  which  Bereford  and 
Herle  [former  judges]  did  in  such  a  case,  that  is  to  say,  when  a  remain- 
der was  limited  in  fee  simple  by  fine  they  admitted  the  person  in  re- 
mainder to  defend,  and  it  was  said  by  them  that  it  would  be  otherwise 
if  the  limitation  were  by  deed  injyais;  but  nevertheless,  no  precedent  is 
of  such  force  as  that  which  is  right.^  .   .   . 

Hillary,  J.  Demandant,  will  you  say  anything  else  to  oust  him  from 
being  admitted? 

R.  Thoiye.  If  it  so  seems  to  you,  we  are  ready  to  say  what  is  suffi- 
cient ;  and  I  think  you  will  do  as  others  have  done  in  the  same  case,  or 
'  else  we  do  not  know  what  the  law  is. 

Hillary,  J.     It  is  the  will  of  the  Justices. 

Stonore,  C.  J.     No ;  law  is  that  which  is  right. ^ 


^ 


ri 


Blackstones'  Commentaries,  Book  I,  pp.  68-73. 

Some  have  divided  the  common  law  into  two  principal  grounds  or 
foundations:  1.  Established  customs;  such  as  that,  where  there  are 
r^XwQQ  brothers,  the  eldest  brother  sliall  be  heir  to  the  second,  in  cxclu- 
T^sion  of  the  youngest :  and  2.  Established  rules  and  maxims;  as,  "  that 
the  king  can  do  no  wrong,  that  no  man  shall  be  bound  to  accuse  him- 
self," and  the  like.  But  I  take  these  to  be  one  and  the  same  thing. 
For  the  authority  of  these  maxims  rests  entirel}'  upon  general  reception 
and  usage :  and  the  only  method  of  proving  that  this  or  that  maxim  is 
a  rule  of  the  common  law,  is  by  showing  that  it  hath  been  always  the 
custom  to  observe  it. 

But  here  a  verv  natural,  and  vciy  material,  question  arises :  how  are 
these  customs  and  maxims  to  be  known,  and  b}-  whom  is  their  validity 
to  be  determined  ?  The  answer  is,  by  the  judges  in  the  several  courts 
of  justice.  The}'  are  the  depositaries  of  the  laws ;  the  living  oracles 
who  must  decide  in  all  cases  of  doubt,  and  who  are  bound  by  an  oath 
to  decide  according  to  the  law  of  the  land.  The  knowledge  of  that  law 
is  derived  from  experience  and  study  ;  from  the  ''  viffinti  aimorum  lucu- 
hmtiones"  which  Fortescue  mentions  ;  and  from  being  long  personally 
accustomed  to  the  judicial  decisions  of  their  predecessors.  And  indeed 
these  judicial  decisions  are  the  principal  and  most  authoritative  evi- 
dence that  can  be  given,  of  the  existence  of  such  a  custom  as  shall 
form  a  part  of  the  common  law.  Tlie  judgment  itself,  and  all  the  pro- 
ceedings previous  thereto,  are  carefully  registered  and  preserved,  under 

^  Come  resonn. 

2  Nanyl;  ley  est  resoun. 


SECT,  I.] 


langbkidge's  case. 


the  name  of  records,  in  public  repositories  set  apart  for  tliat  particular 
purpose  ;  and  to  them  frequent  recourse  is  had  when  any  critical  ques- 
tion arises  in  the  determination  of  which  former  precedents  may  give 
light  or  assistance.  And  therefore,  even  so  earl}'  as  the  conquest,  we 
find  the  ^'' prcBteritorum  memoria  eventoruni "  reckoned  up  as  one  of  the 
chief  qualifications  of  those,  who  were  held  to  be  "  legihus  patrioe  optime 
insfitud."  For  it  is  an  established  rule  to  abide  by  former  precedents, 
wliere  the  same  points  come  again  in  litigation  :  as  well  to  keep  the 
scale  of  justice  even  and  stead}',  and  not  liable  to  waver  with  everv  new 
judge's  opinion  ;  as  also  because  the  law  in  that  case  being  solemnly 
declared  and  determined,  what  before  was  uncertain,  and  perhaps  indif- 
ferent, is  now  become  a  permanent  rule,  which  it  is  not  in  the  breast  of 
an}'  subsequent  judge  to  alter  or  var}'  from,  according  to  his  private 
sentiments :  he  being  sworn  to  determine,  not  according  to  his  own 
private  judgment,  but  according  to  the  known  laws  and  customs  of  the 
land  ;  not  delegated  to  pronounce  a  new  law,  but  to  maintain  and  ex- 
pound the  old  one.  Yet  this  rule  admits  of  exception,  where  the  former 
determination  is  most  evidently  contrarj'^  to  reason  ;  much  more  if  it  be 
clearh'  contrary  to  the  divine  law.  But  even  in  such  cases  the  subse- 
quent judges  do  not  pretend  to  make  a  new  law,  but  to  vindicate  the 
old  one  from  misrepresentation.  For  if  it  be  found  that  the  former 
decision  is  manifestly  absurd  or  unjust,  it  is  declared,  not  that  such  a 
sentence  was  bad  laio^  but  that  it  was  not  laxo  ;  that  is,  that  it  is  not 
the  established  custom  of  the  realm,  as  has  been  erroneously  deter- 
mined. And  hence  it  is  that  our  lawyers  are  with  justice  so  copious 
in  their  encomiums  on  the  reason  of  the  common  law ;  that  the}'  tell  us 
that  the  law  is  the  perfection  of  reason,  that  it  always  intends  to  con- 
form thereto,  and  that  what  is  not  reason  is  not  law.  Not  that  the  par- 
ticular reason  of  every  rule  in  the  law  can  at  this  distance  of  time  be 
always  precisely  assigned  ;  but  it  is  sufficient  that  there  be  nothing  in 
the  rule  flatly  contradictory  to  reason,  and  then  the  law  will  presume 
it  to  be  well  founded.  And  it  bath  been  an  ancient  observation  in  the 
laws  of  England,  that  whenever  a  standing  rule  of  law,  of  which  the 
reason  perhaps  could  not  be  remembered  or  discerned,  hath  been 
wantonly  broken  in  upon  by  statutes  or  new  resolutions,  the  wisdom  of 
the  rule  hath  in  the  end  appeared  from  the  inconveniences  that  have 
followed  the  innovation. 

The  doctrine  of  the  law  then  is  this :  that  precedents  and  rules  must 
be  followed,  unless  flatly  absurd  or  unjust :  for  though  their  reason  be 
not  obvious  at  first  view,  yet  we  owe  such  a  deference  to  former  times 
as  not  to  suppose  that  they  acted  wholly  without  consideration.  To 
illustrate  this  doctrine  by  examples.  It  has  been  determined,  time  out 
of  mind,  that  a  brother  of  the  half  blood  shall  never  succeed  as  heir  to 
the  estate  of  his  half  brother,  but  it  shall  rather  escheat  to  the  king, 
or  other  superior  lord.  Now  this  is  a  positive  law,  fixed  and  estab-  ^ 
lished  by  custom,  which  custom  is  evidenced  by  judicial  decisions;  and  W 
therefore  can  never  be  departed  from  by  any  modei-n  judge  without  a  5/    P 


^ 


LANGBKIBGES   CASE. 


[chap.  L 


breach  of  his  oath  and  the  law.  For  herein  there  is  nothing  repugnant 
to  natural  justice;  though  the  artificial  reason  of  it,  drawn  from  the 
feodal  law,  may  not  be  quite  obvious  to  everybody.  And  therefore, 
though  a  modern  judge,  on  account  of  a  supposed  hardship  upon  the 
half  brother,  mfght  wish  it  had  otherwise  l)een  settled,  yet  it  is  not  in 
his  power  to  alter  it.  But  if  any  court  were  now  to  determine,  that  an 
elder  brother  of  the  half  blood  might  enter  upon  and  seize  any  lands 
that  were  purchased  by  his  younger  brother,  no  subsequent  judges 
would  scruple  to  declare  that  such  prior  determination  was  unjust,  was 
unreasonable,  and  therefore  was  not  law.  So  that  the  law^  and  the 
opinion  of  the  judge^  are  not  always  convertible  terras,  or  one  and 
the  same  thing ;  since  it  sometimes  may  happen  that  the  judge  may 
mistake  the  law.  Upon  the  wliole,  however,  we  may  take  it  as  a  gen- 
eral rule,  "that  the  decisions  of  courts  of  justice  are  the  evidence  of 
what  is  common  law :  "  in  the  same  manner  as,  in  the  civil  law,  what 
the  emperor  had  once  determined  was  to  serve  for  a  guide  for  the 
future. 

The  decisions  therefore  of  courts  are  held  in  the  highest  regard,  and  are 
not  only  preserved  as  authentic  records  in  tlie  treasuries  of  the  several 
courts,  but  are  handed  out  to  public  view  in  tlie  numerous  volumes  of 
reports  which  furnish  tlie  lawyer's  library.  These  reports  arc  histories 
of  the  several  cases,  with  a  short  summary  of  the  proceedings,  which 
are  preserved  at  large  in  the  record  ;  the  arguments  on  both  sides  and 
the  reasons  the  courts  gave  for  this  judgment ;  taken  down  in  short 
notes  by  persons  present  at  the  determination.  And  these  serve  as 
indexes  to,  and  also  to  explain,  the  records,  which  always,  in  matters 
of  consequence  and  nicet}',  the  judges  direct  to  be  searched.  The 
reports  are  extant  in  a  regular  series  from  the  reign  of  King  Edward 
the  Second  inclusive  ;  and,  from  his  time  to  that  of  Henry  the  Eigiith, 
were  taken  b}'  the  prothonotaries,  or  chief  scribes  of  the  court,  at  the 
expense  of  the  crown,  and  published  annnalhj.,  whence  the}"  are  known 
under  the  denomination  of  the  year  books.  And  it  is  much  to  be 
wished  that  this  beneficial  custom  had,  under  proper  regulations,  been 
continued  to  this  day:  for,  though  King  James  the  First,  at  the  instance 
of  Lord  Bacon,  appointed  two  reporters  with  a  handsome  stipend  for 
this  purpose,  yet  tliat  wise  institution  was  soon  neglected,  and  from 
the  reign  of  Henry  the  Eighth  to  the  present  time  this  task  has  been 
executed  b}'  many  private  and  contemporary  hands;  who  sometimes 
through  haste  and  inaccuracy,  sometimes  through  mistake  and  want  of 
skill,  have  published  very  crude  and  imperfect  (perhaps  contradictory) 
accounts  of  one  and  the  same  determination.  Some  of  the  most  valu- 
able of  the  ancient  rei)orts  are  those  published  by  Lord  Chief-Justice 
Coke;  a  man  of  infinite  learning  in  his  profession,  though  not  a  little 
infected  with  the  pedantry  and  quaintness  of  the  times  he  lived  in, 
which  appear  strongly  in  all  his  works.  However,  his  writings  are  so 
hi;4hly  esteemed,  that  they  are  generally  cited  without  the  author's 
name. 


Besides  these  reporters,  there  are  also  other  authors,  to  whom  greatV\,,jn 


veneration  and  respect  is  i)aid  bj'  the  students  of  the  common  law-juC^^        **    ^^^-^J^^ 
Such  are  Glanvil  and  Bracton,  Britton  and  Fleta,  Hengham  and  Little- 
ton, Statham,  Brooke,  Fitzherbert,  and  Staundtbrde,  with  some  otlit 
of  ancient  date  ;  whose  treatises  are  cited  as  authority',  and  are 

dence    that  cases    have   formerl}'  happened   in  which  such  and   such  ^^Aj^  Vtl       ^'^  ^^c? 
points  were  determined,  which  are  now  become  settled  and  first  princi-  ^>\a  -■^^N^^^^'^C*"^ 
l)les.    One  of  the  last  of  these  methodical  writers  in  point  of  time,  whose  -~  "^ 
works  are  of  any  intrinsic  authority  in  the  courts  of  justice,  and  do  not  <i-j-->.rTr^-* 
entirely  depend  on  the  strength  of  their  quotations  from  older  authors,  -v^^^^^~~«-_  -    — 
is  the  same  learned  judge  we  have  just  mentioned,  Sir  Edward  Coke  ;  ^^^-Mrx  ^i^*^^^*^*^-'^ 


who  hath  written  four  volumes  of  institutes,  as  he  is  pleased  to 
them,  though  they  have  little  of  the  institutional  method  to  warra 
such  a  title.  The  first  volume  is  a  ver}'  extensive  comment  upon  a 
little  excellent  treatise  of  tenures,  compiled  by  Judge  Littleton  in  the 
reign  of  Edward  the  Fourth.  This  comment  is  a  rich  mine  of  valuable 
common  law  learning,  collected  and  heaped  together  from  the  ancient 
reports  and  year  books,  but  greatly  defective  in  metliod.  The  second 
volume  is  a  comment  upon  many  old  acts  of  parliament,  without  anv 
systematical  order  ;  the  third  a  more  methodical  treatise  of  the  pleas  of 
the  crown  ;  and  the  fourth  an  account  of  the  several  species  of  courts. 


a^-^-d?^ 


^  Parke,  J.,  in  IMirehouse  v.  Rennell,  1  CI.  &  F.  527,  546.^  The  pre 
cise  facts  stated  by  your  Lordships  have  never,  as  far  as  we  can  learn 
been  adjudicated  upon  in  any  Court;  nor  is  there  to  be  found  any 
opinion  upon  them  of  any  of  our  Judges,  or  of  those  ancient  text  writers 
to  whom  we  look  up  as  authorities.  The  case,  therefore,  is  in  some 
sense  new,  as  many  others  are  which  continually  occur ;  but  we  have 
no  right  to  consider  it,  because  it  is  new,  as  one  for  which  the  law  has 
not  provided  at  all ;  and  because  it  lias  not  yet  been  decided,  to  decide 
it  for  ourselves,  according  to  our  own  judgment  of  what  is  just  and 
expedient.  Our  common-law  system  consists  in  the  applying  to  new 
combinations  of  circumstances  those  rules  of  law  which  we  derive  from 
legal  principles  and  judicial  precedents;  and  for  the  sake  of  attaining 
uniformity,  consistency,  and  certainty,  we  must  apply  those  rules,  where 
they  are  not  plainly  unreasonable  and  inconvenient,  to  all  cases  which 
arise;  and  we  are  not  at  liberty  to  reject  them,  and  to  abandon  all 
analogy  to  them,  in  those  to  which  they  have  not  yet  been  judicially 
applied,  because  we  think  that  the  rules  are  not  as  convenient  and 
reasonable  as  we  ourselves  could  have  devised.  It  appears  to  me  to 
be  of  great  importance  to  keep  this  principle  of  decision  steadily  in 
view,  not  merely  for  the  determination  of  the  particular  case,  but  for 
the  interests  of  law  as  a  science. 


1  Cited  ill  Wambaugh,  Study  of  Cases,  §  77  :  and  see  §§  73-79.  —  Ed. 


6  COMMONWEALTH    V.    CHAPMAN.  [CHAP.    I. 

COMMONWEALTH  v.    CHAPMAN. 

Supreme  Judicial  Court  of  Massachusetts.      1848, 

[Reported  13  Metcalf,  68.] 

Shaw  C.  J.  Tliis  was  an  indictment  against  the  defendants  for  a 
false  and  malicious  libel,  tried  before  the  Court  of  Common  Pleas,  and, 
upon  a  conviction  tliere,  the  case  is  brought  before  this  court,  upon  an 
exception  which  has  been  most  elaborately  argued  by  the  learned 
counsel  for  the  defendants,  and  which,  if  sustained,  must  go  to  the 
foundation  of  the  prosecution ;  namely,  that  there  is  no  law  of  this 
Commonwealth  by  wliich  the  writing  and  publishing  of  a  malicious  libel 
can  be  prosecuted  by  indictment,  and  punished  as  an  offence.  The 
proposition  struck  us  with  great  surprise,  as  a  most  startling  one  ;  but 
as  it  was  seriously  presented  and  earnestly  urged  in  argument,  we  felt 
bound  to  listen,  and  give  it  the  most  careful  consideration;  but  after 
the  fullest  deliberation,  we  are  constrained  to  say,  that  we  can  enter- 
tain no  more  doubt  upon  the  point  than  we  did  when  it  was  (irst 
offered. 

It  is  true  that  there  is  no  statute  of  the  Commonwealth  declaring  the 
writing  or  publisiiing  of  a  written  libel,  or  a  malicious  libel,  by  signs 
and  pictures,  a  punishable  offence.  But  this  goes  little  way  towards 
settling  the  question.  A  great  part  of  tlie  municipal  law  of  Massa- 
chusetts, both  civil  and  criminal,  is  an  unwritten  and  traditionary  law. 
It  has  been  common  to  denominate  this  "the  common  law  of  Eng- 
land," because  it  is  no  doubt  true  that  a  large  portion  of  it  has  been 
derived  from  the  laws  of  England,  either  the  common  law  of  England, 
or  those  English  statutes  passed  before  the  emigration  of  our  ancestors, 
and  constituting  a  part  of  that  law,  by  which,  as  English  subjects,  they 
were  governed  when  they  emigrated  ;  or  statutes  made  afterwards,  of  a 
general  nature,  in  amendment  or  modification  of  the  common  law, 
which  were  adopted  in  the  colony  or  province  b}'  general  consent. 

In  addition  to  these  sources  of  unwritten  law,  some  usages,  growing 
out  of  the  peculiar  situation  and  exigencies  of  the  earlier  settlers  of 
Massachusetts,  not  traceable  to  any  written  statute  or  ordinance,  but 
adopted  by  general  consent,  have  long  had  the  force  of  law  ;  as,  for 
instance,  the  convenient  practice,  b}^  which,  if  a  married  woman  join 
with  her  husband  in  a  deed  conveying  land  of  which  she  is  seized  in 
her  own  right,  and  simpl}'  acknowledge  it  before  a  magistrate,  it  shall 
he  valid  to  pass  her  land,  without  the  more  expensive  process  of  a  fine, 
required  b}'  the  common  law.  Indeed,  considering  all  these  sources  of 
unwritten  and  traditionary  law,  it  is  now  more  accurate,  instead  of  the 
common  law  of  England,  which  constitutes  a  part  of  it,  to  call  it  col- 
lectively the  common  law  of  Massachusetts. 

To  a  very  great  extent,  the  unwritten  law  constitutes  tlie  basis  of  our 
junsprudence,  and  furnishes  the  rules  by  which  public  and  private  riglits 


SECT.     I.] 


COMMONWEALTH   V.   CHAPMAN. 


are  established  and  secured,  the  social  relations  of  all  persons  regulated, 
their  rights,  duties,  and  obligations  determined,  and  all  violations  of 
duty  redressed  and  punished.  Without  its  aid,  the  written  law,  em- 
bracing the  constitution  and  statute  laws,  would  constitute  but  a  lame, 
partial,  and  impracticable  system.  Even  in  many  cases,  where 
statutes  have  been  made  in  respect  to  particular  subjects,  they  could 
not  be  carried  into  effect,  and  must  remain  a  dead  letter,  without  the 
aid  of  the  common  law.  In  cases  of  murder  and  manslaughter,  the 
statute  declares  the  punishment ;  but  what  acts  shall  constitute  murder, 
wliat  manslaughter,  or  what  justitiable  or  excusable  homicide,  are  left 
to  be  decided  by  the  rules  and  principles  of  the  common  law.  So,  if 
an  act  is  made  criminal,  but  no  mode  of  prosecution  is  directed,  or  no 
punishment  provided,  the  common  law  furnishes  its  ready  aid,  pre- 
scribing the  mode  of  prosecution  by  indictment,  the  common  law 
punishment  of  fine  and  imprisonment.  Indeed,  it  seems  to  be  too 
obvious  to  require  argument,  that  without  the  common  law,  our  legis- 
lation and  jurisprudence  would  be  impotent,  and  wholly  deficient  in 
completeness  and  symmetry,  as  a  system  of  municipal  law. 

It  will  not  be  necessary  here  to  consider  at  large  the  sources  of  ihei 
unwritten  law,  its  authority  as  a  binding  rule,  derived  from  long  and 
gciicral  acquiescence,  its  provisions,  limits,  qualifications,  and  excep- 
tions, as  established  by  well  authenticated  usage  and  tradition.  It  is 
sufficient  to  refer  to  1  Bl.  Com.  Go  ct  seq. 

If  it  be  asked,  "How  are  these  customs  or  maxims,  constituting  the 
common  law  to  be  known,  and  by  whom  is  their  validity  to  be  deter- 
mined?" Blackstone  furnishes  the  answer;  "by  the  judges  in  the 
several  courts  of  justice.  The}'  are  the  depositaries  of  the  laws,  the 
living  oracles,  who  must  decide  in  all  cases  of  doubt,  and  who  are 
bound  b}'  oath  to  decide  according  to  the  law  of  the  land.  Their 
knowledge  of  that  law  is  derived  from  experience  and  study,"  "  and 
from  being  long  personally'  accustomed  to  the  judicial  decisions  of 
their  predecessors."     1  Bl.  Com.  69. 

Of  course,  in  coming  to  any  such  decision,  judges  are  bound  to 
resort  to  the  best  sources  of  instruction,  such  as  the  records  of  courts 
of  justice,  well  authenticated  histories  of  trials,  and  books  of  reports, 
digests,  and  brief  statements  of  such  decisions,  prepared  by  suitable 
persons,  and  the  treatises  of  sages  of  the  profession,  whose  works  have 
an  established  reputation  for  correctness. 

That  there  is  such  a  thing  as  a  common  or  unwritten  law  of  Massa- 
chusetts, and  that,  when  it  can  be  authenticall}^  established  and  sus- 
tained, it  is  of  equal  anthorit}'  and  binding  force  with  the  statute  law, 
seems  not  seriously  contested  in  the  argument  before  us.  But  it  is 
urged  that,  in  the  range  and  scope  of  this  unwritten  law,  there  is  no 
provision  which  renders  the  writing  or  publishing  of  a  malicious  libel 
punishable  as  a  criminal  offence. 

The  stress  of  the  argument  of  the  learned  counsel  is  derived  from  a 
supposed  qualification  of  the  general  proposition  in  the  constitution  of 


'J>^^ 


^ 


^ 


8  COMMONWEALTH   V.    CHAPMAN.  [CHAP.    I. 

Massachusetts,  usuallj'  relied  on  in  proof  of  the  continuance  in  force 
of  the  rules  and  principles  of  the  common  law,  as  Xhey  existed  before 
the  adoption  of  the  constitution.  The  clause  is  this:  Chap.  6,  Art.  1, 
Sect.  6  :  "  All  the  laws  which  have  been  adopted,  used,  and  approved  in 
the  province,  colony,  or  state  of  Massachusetts  Bay  and  usually  prac- 
tised on  in  the  courts  of  law,  shall  still  remain  and  be  in  full  force 
until  altered  or  repealed  by  the  legislature ;  such  parts  only  excepted 
as  are  repugnant  to  the  rights  and  liberties  contained  in  this 
constitution." 

It  is  then  argued,  that  it  is  in  virtue  of  this  clause  of  the  constitu- 
tion that  the  common  law  of  England,  and  all  other  laws  existing 
before  the  revolution,  remain  in  force,  and  that  this  clause  so  far 
modifies  the  general  proposition,  that  no  laws  are  saved,  but  those 
which  have  been  actually  applied  to  cases  in  judgment  in  a  court  of 
legal  proceeding ;  and  unless  it  can  be  shown  affirmatively  that  some 
judgment  has  been  rendered,  at  some  time  before  the  adoption  of  the 
constitution,  affirmative  of  any  particular  rule  or  principle  of  the 
common  law,  such  rule  is  not  brought  within  the  saving  power  of  this 
clause,  and  cannot  therefore  be  shown  to  exist.  We  doubt  the  sound- 
ness of  this  proposition,  and  the  correctness  of  the  conclusion  drawn 
from  it. 

We  do  not  accede  to  the  proposition,  that  the  present  existence  and 
effect  of  the  whole  body  of  law,  which  existed  before  the  constitution, 
depends  solely  upon  this  provision  of  it.  We  taivc  it  to  be  a  well- 
settled  principle,  acknowledged  by  all  civilized  states  governed  by 
law,  that  by  means  of  a  political  revolution,  by  which  the  political 
organization  is  changed,  tlie  municipal  laws,  regulating  their  social 
relations,  duties,  and  rights,  arc  not  necessarily  abrogated.  Thev 
remain  in  force,  except  so  far  as  they  are  repealed  or  modified  by  the 
new  sovereign  authority.  Indeed,  the  existence  of  this  body  of  laws, 
and  the  social  and  personal  rights  dependent  upon  them,  from  1776, 
when  the  Declaration  of  Independence  was  made,  and  our  political 
revolution  took  place,  to  1780,  when  this  constitution  was  adopted, 
depend  on  this  principle.  Tlie  clause  in  the  constitution,  therefore, 
though  highly  proper  and  expedient  to  remove  doubts,  and  give 
greater  assurance  to  the  cautious  and  timid,  was  not  necessary  to 
preserve  all  prior  laws  in  force,  and  was  rather  declaratory  of  an 
existiug  rule,  than  the  enactment  of  a  new  one.  We  think,  therefore, 
it  should  have  such  a  construction  as  best  to  carry  into  effect  the 
great  principle  it  was  intended  to  establish. 

But  further;  we  think  the  argument  is  unsound  in  assuming  that  no 
rule  of  the  common  law  can  be  established  under  this  clause  of  the 
constitution,  without  showing  affirmatively,  that  in  some  judicial  pro- 
ceeding, such  rule  of  law  has  been  drawn  in  question  and  affirmed, 
previously  to  the  adoption  of  the  constitution.  During  that  time  there 
were  no  published  report  of  judicial  proceedings.  The  records  of 
courts  were  very  imperfectly  kept,  and  afford  but  little  information  in 


SECT.     I.]  COMMONWEALTH   V.   CHAPMAN.  9 

regard  to  the  rules  of  law  discussed  and  adopted  in  them.  And  who 
has  examined  all  the  records  of  all  the  criminal  courts  of  Massachu- 
setts, and  can  declare  that  no  records  of  such  prosecutions  can  be 
found?  But  so  far  as  it  regards  libel,  as  a  criminal  offence,  we  think 
it  does  appear,  from  the  very  full  and  careful  examination  of  the  late 
Judge  Thacher  (^Commonwealth  v.  Whitmarsh,  Thacher's  Crim. 
Cases,  441),  that  many  prosecutions  for  libel  were  instituted  in  the 
criminal  courts  before  the  Revolution,  and  none  were  ever  quashed  or 
otherwise  disposed  of,  on  the  ground  that  there  was  no  law  rendering 
libels  punishable.  In  the  case  of  the  indictments  returned  against 
Governor  Gage  and  others,  very  much  against  the  will  of  the  judges, 
those  indictments  were  received  and  filed,  and  remained,  until  non 
prossed  by  the  king's  attorney-general.  This  investigation  of  the 
history  of  the  common  law  of  Massachusetts  is  so  thorough,  complete, 
and  satisfactory-,  that  it  is  sufficient  to  refer  to  it,  as  a  clear  elucidation 
of  the  subject. 

But  we  think  there  is  another  species  of  evidence  to  prove  the 
existence  of  the  common  law,  making  libel  an  offence  punishable  by 
law,  clear,  satis  factor}',  and  decisive;  and  that  is,  these  rules  of  law, 
with  some  modification,  caused  b}^  the  provisions  of  the  constitution, 
have  been  aflii-med,  declared,  and  ratified  by  the  judiciary  and  the 
legislative  departments  of  the  existing  government  of  Massachusetts, 
by  those  whose  appropriate  province  and  constitutional  duty  it  was 
to  act  and  decide  upon  them;  so  that  they  now  stand  upon  a  basis  of 
authority  which  cannot  be  shaken,  and  must  so  stand  until  altered  or 
modified  b}'  the  legislature. 

When  our  ancestors  first  settled  this  country,  they  came  here  as 
English  subjects  ;  they  settled  on  the  land  as  English  territory',  con- 
stituting part  of  the  realm  of  England,  and  of  course  governed  b}'  its 
laws  ;  they  accepted  charters  from  the  English  government,  conferring 
both  political  powers  and  civil  privileges  ;  and  they  never  ceased  to 
acknowledge  themselves  English  subjects,  and  never  ceased  to  claim 
the  rights  and  privileges  of  English  sul)jects,  till  the  Revolution.  It  is 
not  therefore,  perhaps,  so  accurate  to  saj'  that  they  established  the 
laws  of  England  here,  as  to  say,  that  the}'  were  subject  to  the  laws  of 
England.  When  they  left  one  portion  of  its  territory,  they  were  alike 
subject,  on  their  transit  and  when  the}'  arrived  at  anotlier  portion  of 
the  English  territory  ;  and  therefore  always,  till  the  Declaration  of 
Independence,  they  were  governed  and  protected  by  the  laws  of  Eng- 
land, so  far  as  those  laws  were  applicable  to  their  state  and  condition. 
Under  this  category  must  come  all  municipal  laws  regulating  and 
securing  the  rights  of  real  and  personal  property,  of  person  and  per- 
sonal liberty,  of  habitation,  of  reputation  and  character,  and  of  peace. 
The  laws  designed  for  the  protection  of  reputation  and  character,  and 
to  prevent  private  quarrels,  affrays,  and  breaches  of  peace,  by  punish- 
ing malicious  libel,  were  as  important  and  as  applical)le  to  the  state 
and  condition  of  the  colonists  as  the  law  punishing  violations  of  the 


10 


COMMONWEALTH   V.   CHAPMAN. 


[chap.  I. 


rights  of  property,  of  person,  or  of  habitation;  that  is,  as  laws  for 
pimisliing  larceny,  assault  and  battery,  or  burglary.  Being  part  of  the 
common  law  of  England,  applicable  to  the  state  and  condition  of  the 
colonists,  they  necessanly  applied  to  all  English  subjects  and  terri- 
tories, as  well  in  America  as  in  Great  Britain,  and  so  continued  applic- 
able till  the  Declaration  of  Independence. 

This,  tlierefore,  would  be  evidence,  a  ^rriori,  that  tliey  were  in  force, 
and  were  adopted  by  the  clause  cited  from  the  constitution,  except  so 
far  as  modified  by  the  excepting  clause. 

That  the  law  of  libel  existed,  at  tlie  first  migration  of  our  ancestors, 
and  dui'ing  the  whole  period  of  the  colonial  and  provincial  governments, 
is  proved  by  a  series  of  unquestionable  authorities.^ 

JExceiMons  overruled.- 


1  The  learned  Chief  Justice  proceeded  to  show  that  these  authorities  had  been 
followed  in  Massachusetts  since  the  adoptiou  of  the  constitution.  —  Ed. 

2  See  to  the  same  effect  State  v.  Cawood,  2  Stew.  (Ala.)  360  ;  State  v.  Danforth,  3 
Conn.  112  ;  State  v.  Davis,  2  Penne.  (Del.)  139;  State  v.  Buchanan,  5  H.  &  J.  (Md.) 
817  ;  Smith  v.  People,  25  111.  17  ;  State  v.  PuUe,  12  Minn.  164  ;  Terr.  v.  Ye  Wan,  2 
Mont.  478  ;  State  v.  Rollins,  8  N.  H.  550  ;  Com.  v.  McHale,  97  Pa.  397  ;  State  v. 
Williams,  2  Overt.  (Tenn.)  108  ;  State  v.  La  Forrest,  71  Vt.  311  ;  Houston  v.  Com., 
87  Va.  257  ;  Nicholls  v.  State,  68  Wis.  416. 

In  State  v.  Danforth,  supra,  HosMEii,  C.  J.,  said  :  "It  is  indispensably  necessary 
that  there  should  exist  a  common  law,  on  the  broad  principles  of  public  convenience 
and  necessity,  defining  crimes  and  prescribing  adequate  punishments.  To  determine, 
by  statute,  every  offence  and  direct  the  punishment  which  shall  be  inflicted,  has  not, 
so  far  as  I  know,  ever  been  attempted,  and  would  he  nearly  impracticable.  The  com- 
munity must,  at  least,  be  left  exposed  to  injuries  the  most  atrocious  ;  and  the  evils 
resulting  would  be  much  greater,  than  any  mind  will  anticipate,  frou)  the  exercise  of 
a  sound  discretion,  in  the  application  of  principles  and  analogies  which  the  common 
law  supplies."  —  Ed. 


v^r/^ 


^    5V:> 


ir 


SECT.  I.]  OHIO   V.    LAFFEUTY.  11 

^. 

OHIO  V.  LAFFERTY. 
Court  of  Common  Plkas,  Ohio.     1817. 

[Reported  Tappan,  81. J 

Lafferty  was  convicted,  on  three  several  indictments,  for  selling 
unwholesome  provisions. 

Wright,  for  the  defendant,  moved,  in  arrest  of  judgment  "  for  that 
tiiere  is  no  law  of  this  state  against  selling  unwholesome  provisions." 
He  observed,  that  the  indictment  was  bottomed  upon  the  common  law 
of  England,  which  was  not  in  force  in  this  state,  it  never  having  been 
adopted  by  our  constitution,  or  recognized  by  our  laws  or  judicial  de- 
cisions ;  that  the  4th  section  of  the  3d  article  of  the  constitution  lim- 
ited and  confined  the  jurisdiction  of  the  court  to  offences  declared  such 
by  the  statute  laws.  He  admitted  that  the  offence  charged  was  an 
offence  against  the  public,  which  at  common  law  was  indictable  and 
punishable  where  the  common  law  was  in  force;  but  that,  in  this  state, 
as  the  common  law  was  not  in  force,  and  no  statute  had  declared  it 
criminal,  it  was  not  an  act  wliich  could  be  prosecuted  criminally. 

Beehee,  contra.  That  the  section  of  the  constitution  quoted  and 
relied  upon  by  Wright,  as  limiting  the  jurisdiction  of  the  court  to  stat- 
utory offences,  was  not  fairly  construed.  It  should  be  considered  as 
referring  the  courts  to  the  statute  law  for  the  extent  of  their  several 
jurisdictions  in  criminal  cases;  and  so  considered,  the  statute  law 
which  gave  to  tlie  Supreme  Court  jurisdiction  in  all  capital  cases,  and 
to  tlie  courts  of  common  pleas  jurisdiction  in  all  cases  not  capital, 
without  any  specification  of  indictable  offences,  did  point  out  the  man- 
ner and  tlie  cases  in  which  this  section  of  the  constitution  intended  the 
duties  of  the  courts  should  be  divided,  and  that  it  did  not  exclude  a 
common-law  jurisdiction. 

Tappan,  President.  The  question  raised  on  this  motion,  whether 
the  common  law  is  a  rule  of  decision  in  this  state?  is  one  of  very  great 
interest  and  importance,  and  one  upon  which  contradictory  opinions 
have  been  liolden  both  at  the  bar  and  upon  the  bench. 

No  just  government  ever  did,  nor  probably  ever  can,  exist  without 
an  unwritten  or  common  law.  By  the  common  law  is  meant  those 
maxims,  principles,  and  forms  of  judicial  proceeding  which  have  no 
written  law  to  prescribe  or  warrant  them,  but  which,  founded  on  tlie 
laws  of  nature  and  the  dictates  of  reason,  have,  by  usage  and  custom, 
become  interwoven  with  the  written  laws,  and,  by  such  incorporation, 
form  a  part  of  the  municipal  code  of  each  state  or  nation  which  has 
emerged  from  the  loose  and  erratic  habits  of  savage  life  to  civilization, 
order,  and  a  government  of  laws. 

For  the  forms  of  process,  indictment,  and  trial,  we  have  no  statute 
law  directing  us  ;  and  for  almost  the  whole  law  of  evidence,  in  criminal 
as  well  as  in  civil  proceedings,  we  must  look  to  the  common  law,  for 


Q^ 


\[p 


"e 

) . 


12 


OHIO    V.    LAFfERTY. 


CHAP.  I. 


^ 


we  have  no  other  guide.  Can  it  be  said,  then,  that  the  common  law  is 
not  in  force  when,  without  its  aid  and  sanction,  justice  cannot  be  ad- 
ministered ;  when  even  the  written  laws  cannot  be  construed,  explained, 
and  enforced  without  the  common  law,  which  furnishes  the  rules  and 
principles  of  such  construction? 

We  may  go  further,  and  sa\'  tliat  not  only  is  tlie  common  law  neces- 
sarily in  force  here,  but  that  its  authority  is  superior  to  that  of  the 
written  laws  ;  for  it  not  only  furnishes  the  rules  and  principles  by 
which  the  statute  laws  are  construed,  but  it  ascertains  and  determines 
the  validity  and  authority  of  them.  It  is,  therefore,  that  Lord  Hobart 
said  that  a  statute  law  against  reason,  as  to  make  a  man  a  judge  in  his 
own  cause,  was  void. 

As  the  laws  of  nature  and  reason  are  necessarily  iu  force  in  every 
community  of  civilized  men  (because  nature  is  the  common  parent,  and 
reason  the  common  guardian  of  man),  so  with  communities  as  with 
individuals,  the  right  of  self-preservation  is  a  right  paramount  to  the 
institution  of  written  law  ;  and  hence  the  .naxim,  the  safety  of  the 
^''■iople  is  the  supreme  laiv,  needs  not  the  sanction  of  a  constitution  or 
statute  to  give  it  validity  and  force.  But  it  cannot  have  validity  and 
force,  as  law,  unless  the  judicial  tribunals  have  power  to  punish  all 
such  actions  as  directly  tend  to  jeopardize  that  safety  :  unless,  indeed, 
the  judicial  tribunals  are  tlie  guardians  of  pul)lic  morals,  and  the  con- 
servators of  the  public  peace  and  order.  Whatever  acts,  then,  are 
wicked  and  immoral  in  themselves,  and  directly  tend  to  injure  the 
community,  are  crimes  against  the  community,  which  not  onl}'  maf/, 
but  must,  be  repressed  and  punished,  or  government  and  social  order 
cannot  be  preserved.  It  is  this  salutary  principle  of  the  common  law 
which  spreads  its  shield  over  society  to  protect  it  from  the  incessant 
activity  and  novel  inventions  of  the  profligate  and  unprincipled.  — 
inventions  which  the  most  perfect  legislation  could  not  alwa3-s  foresee 
and  guard  against. 

But  although  the  common  law  in  all  countries  has  its  foundation  in 
reason  and  the  laws  of  nature,  and  therefore  is  similar  in  its  general 
principles,  yet  in  its  application  it  has  been  modified  and  adapted  to 
various  forms  of  government;  as  the  different  orders  of  architecture, 
having  their  foundation  in  utilitv  and  graceful  proportion,  rise  in  vari- 
ous forms  of  symmetry  and  beanty,  in  accordance  with  the  taste  and 
judgment  of  the  builder.  It  is  also  a  law  of  liberty  ;  and  hence  we 
find  that  when  North  America  was  colonized  by  emigrants  who  fled 
from  the  pressure  of  monarchy  and  priestcraft  in  the  old  world  to  enjo}* 
freedom  in  the  new,  they  brought  with  them  the  common  law  of  Eng- 
land (their  mother  countrv),  claiming  it  as  their  birthright  and  inher- 
itance. In  their  charters  from  the  crown  they  were  careful  to  have  it 
recognized  as  the  foundation  on  which  they  were  to  erect  their  laws 
and  governments;  not  more  anxious  was  apneas  to  secure  from  the 
burning  ruins  of  Troy  his  household  gods,  than  were  these  first  settlers 
of  America  to  secure  to  themselves  and  their  children  the  benefits  of 


SECT.  I.] 


OHIO   V.    LAFFERTY. 


13 


the  common  Ian-  of  England.  From  tlience,  through  every  stage  of  tlie 
colonial  governments,  the  common  law  was  in  force  so  far  as  it  was  found 
necessarj-  or  useful.  When  the  revolution  commenced,  and  independ- 
ent state  governments  were  formed;  in  the  midst  of  hostile  collisions 
with  the  mother  countrv,  when  the  passions  of  men  were  inflamed,  and 
a  deep  and  general  abliorrence  of  the  tyranny  of  the  British  govern- 
ment was  felt,  the  sages  and  patriots  who  commenced  that  revolution, 
and  founded  those  state  governments,  recognized  in  the  common  law  a 
guardian  of  liberty  and  social  order.  The  common  law  of  England  has 
tiius  alwavs  been  the  common  law  of  the  colonies  and  states  of  North 
America;  not,  indeed,  in  its  full  extent,  supporting  a  monarchv,  aris- 
tocracy, and  hierarchy,  but  so  far  as  it  was  applicable  to  our  more  free 
and  happy  habits  of  government. 

Has  society  been  formed  and  government  instituted  in  Ohio  on  dif- 
ferent principles  from  the  other  states  in  this  respect?  The  answer 
to  this  question  will  be  found  in  our  written  laws. 

The  ordinance  passed  by  the  congress  of  the  United  States  on  the 
13th  of  July,  1787,  "  for  the  government  of  the  territory  of  the  United 
States  North  West  of  the  river  Ohio,"'  is  the  earliest  of  our  written 
laws.  Possessing  the  Northwestern  Territory  in  absolute  sovereio-ntv. 
the  United  States,  by  that  instrument,  provide  for  the  temporary  o-qv- 
ernment  of  the  people  who  may  settle  there  ;  and,  to  use  the  language 
of  that  instrument,  "  for  extending  the  fundamental  principles  of  civil 
and  religious  liberty,  which  form  the  basis  whereon  these  republics, 
their  laws  and  constitutions,  are  erected  ;  to  Hx  and  establish  those 
principles  as  the  basis  of  all  laws,  constitutions  and  governments, 
which  forever  hereafter  shall  be  formed  in  the  said  territory  ;  to  pro- 
vide also  for  the  establishment  of  states  and  permanent  government 
therein;  and  for  their  admission  to  a  share  in  the  federal  councils,  on 
an  equal  footing  with  the  original  states,  at  as  early  periods  as  may  be 
consistent  with  the  general  interest,"  it  was  ordained  and  declared. 
"  that  the  inhabitants  of  the  said  territory  shall  ahcaijs  be  entitled  to 
the  benefits  of  the  writ  of  habeas  corpus,  and  of  the  trial  bv  jurj- ;  of  a 
proportionate  representation  of  the  people  in  the  legislature,  and  of 

judicial  jjroceedhigs  according  to  the  course  of  the  comvion  law^^'' as 

one  of  the  articles  of  compact  between  the  original  states,  and  the 
people  and  states  in  the  said  territorv,  to  remain  forever  unalterable 
unless  by  common  consent.  Under  this  ordinance  we  purchased  lands 
and  made  settlements  in  this  then  Northwestern  Territory  ;  we  be- 
came voluntary  parties  to  this  contract,  and  made  it,  by  our  own  act. 
what  it  was  intended  to  be,  "  the  basis  of  all  our  laws,  constitutions 
and  gavernmen^" — and  thus  the  common  law  became  here,  as  it  had 
become  in  th3  earliest  colonies,  the  foundation  of  our  whole  svstem 
of  jurisprudence. 

That  these  articles  of  compact  were  of  perpetual  obligation  upon  the 
people  and  states  to  be  formed  in  the  territory,  unless  altered  bv  the 
mutual  consent  of  such  states  and  of  the  original  slates,  is  a  position 


y^ 


Y 


I? 


J? 


^t^.^^^ 


[chap.  I. 


OHIO   V.    LAFFERTY. 


^' 


^ 


cTwhlch  I  have  never  heard  controverted ;  yet  it  may  not  be  useless  to 
advert  to  express  recognitions  of  it  by  both  the  contracting  parties. 
First,  the  United  States,  by  the  act  of  congress  entitled  "an  act  to 
enable  the  people  of  the  eastern  division  of  the  territory  Nortli  West  of 
the  river  Ohio,  to  form  a  constitution  and  state  government,  and  for 
the  admission  of  such  state  into  the  Union,  on  an  equal  footing  with  the 
original  states,  and  for  other  purposes,"  under  the  authority  of  which 
OhTo  became  an  independent  state,  authorized  the  people  of  said  divis- 
ion to  form  a  constitution  and  state  government,  "  provided  the  same 
shall  be  republican,  and  not  repugnant  to  the  ordinance  of  the  13th  of 
July,  1787,  between  the  original  states  and  the  people  and  states  of 
the  territory  North  West  of  the  river  Ohio."  Section  5th.  Second, 
the  people  of  Ohio,  by  the  preamble  to  their  state  constitution,  declare, 
that  they  ordain  and  establish  that  constitution,  "  consistent  with  the 
constitution  of  the  United  States,  the  ordinance  of  congress  of  1787, 
and  the  law  of  congress." 

The  common  law  being  a  part  of  the  existing  system  of  jurisprudence 
6    at  the  time  when  the  state  government  was  formed,  and  its  continuance 
being  expressly  provided  for  by  the  4th  section  of  the  last  article  or 
.4     schedule  to  this  constitution,  which  declares  that  "all  laws  and  parts 
"^      of  laws  now  in  force  in  this  territory,  not  inconsistent  with  this  consti- 
tution, shall  continue  and  remain  in  full  effect  until  repealed  by  the 
legislature."     We  will  next  examine  the  power  of  this  court  to  en- 
force it. 

The  1st  section  of  the  3d  article  of  the  constitution  declares  that 
"  the  judicial  power  of  the  state,  both  as  to  matters  of  law  and  equity, 
shall  be  vested  in  a  supreme  court,  in  courts  of  common  pleas  for  each 
county,"  etc.  The  2d  section  declares  that  the  supreme  court  "shall 
have  original  and  appellate  jurisdiction,  both  in  common  law  and 
chancery,  in  such  cases  as  shall  be  directed  by  law  ;  "  and  the  3d 
section,  that  "the  court  of  common  pleas  shall  have  common  law  and 
chancer}-  jurisdiction  in  all  such  cases  as  shall  be  directed  b}'  law." 
These  sections  refer  to  future  legislative  provision  to  mark  the  bound- 
aries of  jurisdiction  between  the  court  of  common  pleas  and  the 
supreme  court,  and  to  fix  their  extent;  but  they  do  not  refer  to  such 
provision  to  point  out  the  particular  wrongs  which  may  be  redressed 
by  petition  in  equity,  by  private  suit,  or  by  criminal  prosecution.  Such 
has  been  the  uniform  construction  of  these  sections  by  the  legislature 
since  the  constitution  was  formed,  as  must  be  evident  from  the  fact 
that  no  statute  law  has  ever  been  made  or  projected  to  detail  those 
wrongs,  private  or  public,  which  the  judicial  tribunals  were  to  redress 
by  virtue  of  their  chancery  powers,  or  "  according  to  the  course  of  the 
common  law."  Such  a  statute  would  indeed  be  a  phenomenon,  the 
result  of  a  more  perfect  legislation  than  man  has  3'et  attained  to. 

But  it  has  been  urged  that  the  4th  section  of  the  3d  article  is  the 
onl}'  part  of  the  constitution  which  gives  this  court  jurisdiction  in 
criminal  cases,  and  that  it  expressly  refers  to  future  statutory  provls- 


Jlj-Aj^  =<iUj^    ^-JCr-eSLa,    u^  aIZJ^^^x.  ViloD:^^ 


SECT.  I.] 


OHIO    V.    LAFFERTY. 


15 


ion,  to  point  ont  the  cases  in  which  such  jurisdiction  may  be  exercised. 
The  language  of  this  section  is:  "The  judges  of  the  supreme  court 
and  courts  of  common  pleas  shall  have  complete  criminal  jurisdiction 
in  such  cases,  and  in  such  manner  as  may  be  pointed  out  by  law." 

The  laws  in  existence  at  the  time  when  the  constitution  was  formed, 
November  29,  1802,  and  the  state  government  commenced  (beside 
those  of  the  United  States),  were  the  common  law,  the  statutes  of 
other  states  adopted  by  the  governor  and  judges  of  the  territory,  and 
the  acts  of  the  territorial  legislatures, — all  which  were  continued  in 
force  by  the  constitution.  This  section  of  the  constitution,  by  giving 
jurisdiction  in  matters  of  crime,  "  w  such  cases  and  in  such  manner  as 
may  he  pointed  out  by  law,"  must  mean,  in  such  cases  and  in  such 
manner  as  may  be  now  or  hereafter  pointed  out  by  law ;  for  it  must 
either  intend  to  give  the  court  jurisdiction  according  to  the  then  ex- 
isting laws,  or  to  require  of  the  legislature  an  immediate  and  perfect  C\ 
criminal  code,  and  so  operate  as  a  repeal  of  the  former.  It  could  not  \ 
intend  the  latter,  because  neither  a  convention  or  legislature  can  ever 
be  construed  to  have  exceeded  their  power,  unless  such  intent  is  clearly 
and  positively  expressed  ;  and  so  far  is  such  intent  from  being  ex- 
pressed, by  the  section  referred  to,  that  the  utmost  latitude  of  con- 
struction leaves  the  intent  that  way  ambiguous.  It  must  intend  the 
former:  1.  Because  the  convention  who  framed  the  constitution  were 
limited  in  their  powers  by  the  ordinance  and  law  of  congress;  they  had 
not  power  to  deprive  the  people  of  Ohio  of  the  benefit  of  judicial  pro- 
ceedings according  to  the  course  of  the  common  law.  2.  Because  the 
convention  intended  the  constitution  to  be  consistent  with  the  ordi- 
nance and  law.  3.  Because  the  constitution  expressly  continues  in 
force  all  existing  laws. 

Such  seems  ever  to  have  been  the  opinion  of  the  legislature  of  this 
state  ;  for  the  first  general  assembly  which  sat  under  the  constitution 
passed  an  act  to  fix  the  extent  of  jurisdiction  in  the  courts,  and  gave 
to  the  common  pleas  "  cognizance  of  all  crimes,  offences,  and  misde- 
meanors, the  punishment  whereof  is  not  capital."  Stat.  Laws,  vol.  i,  40. 
But  neither  the  first  or  second  general  assembly  deemed  it  necessary 
to  make  any  material  alteration  in  the  criminal  code  they  had  received 
from  the  territorial  government ;  nor  had  the  state  any  other  criminal 
laws  until  the  first  of  August,  1805.  And  when  the  state  courts  super- 
seded the  territorial,  they  were  required,  "  agreeable  to  their  respective 
jurisdictions,"  to  "take  cognizance  of  all  judgments,  causes,  and  mat- 
ters whatsoever,  whether  civil  or  criminal,  that  are  now  pending,  unde- 
termined or  unsatisfied,"  in  the  territorial  courts ;  and  they  were 
"authorized  and  required  to  hear  and  decide  upon  the  said  matters." 
Stat.  Laws,  vol.  i,  50.  In  prosecutions  at  common  law,  then  depending 
in  the  territorial  courts,  the  state  courts  were  thus  directed  to  take  cog- 
nizance, to  hear  and  decide  upon  them,  "  according  to  the  course  of  the 
common  law." 

But  suppose  that  the  position  is  a  correct  one,  that  the  principles  of 


MITCHELL   V.    STATE. 


[chap.  I. 


'€ 


the  common  law  have  no  force  or  authority  in  this  state,  and  what  are 
the  consequences?  They  are  these:  that  there  are  no  legal  forms  of 
process,  of  indictments,  or  trial;  there  is  no  law  of  evidence,  and  the 
statute  laws  cannot  be  enforced,  but  must  remain  inoperative  from  the 
uncertain  signification  of  the  terms  used  in  defining  criminal  off"ences. 
Beside,  the  constitution  gives  jurisdiction  to  this  court  in  criminal 
matters,  "  in  such  cases  and  in  such  manner  as  may  he  pointed  out  by 
law  • "  and  as  we  have  no  statute  pointing  out  the  manner  in  wliich 
such  jurisdiction  shall  be  exercised,  the  consequence  follows  that  it 
cannot  be  lawfully  exercised  in  any  manner  whatever. 

On  the  whole,  therefore,  it  may  be  concluded  that,  were  the  written 
laws  wholly  silent  on  the  subject,  the  principles  and  maxims  of  the 
<joramon  law  must,  of  necessity,  be  the  rule  and  guide  of  judicial  decis- 
ion in  criminal  as  well  as  in  civil  cases;  to  supply  the  defects  of  a 
necessarily  imperfect  legislation,  and  to  prevent  "  the  will  of  the  judge, 
that  law  of  tyrants,"   being  substituted  in  the  room  of  known  and 

ettled  rules  of  law  in  the  administration  of  justice. 
And  that  by  the  ordinance  of  congress,  the  constitution  and  laws  of 

he  state,  a  common-law  jurisdiction  in  criminal  cases  is  established  and 
vested  in  this  court.     The  motion  in  arrest  is,  therefore,  overruled. 
The  defendant  was  fined  fifty  dollars  in  each  case,  with  costs. 


^.I'r 


3 


MITCHELL  ?• 


STATE. 


i 


Supreme  Court  of  Ohio.     1881. 


[Reported  42  Ohio  State,  383.] 


d'-i 


Q? 


<d(     Oket,  J.^    The  following  positions  are  shown  by  the  authorities  to 
,-^be  impregnable. 

1.  In  Ohio,  as  under  the  federal  government  (U.  S.  v.  Hudson,  7  Cr. 
32  ;  U.  S.  V.  Coolidge,  1  Wheat.  415 ;  U.  S.  v.  Britton,  108  U.  S. 
197)  we  have  no  common-law  offences.  No  act,  however  atrocious, 
can  be  punished  criminally,  except  in  pursuance  of  a  statute  or  ordi- 
nance lawfully  enacted.  This  proposition  was  not  established  without 
prolonged  discussion.  In  Ohio  v.  Laflferty,  Tappan,  81  (1817),  it  was 
held  in  an  able  opinion  by  Judge  Tappan,  that  common-law  crimes  are 
punishable  in  Ohio ;  but  Judge  Goodenow,  a  member  of  this  court 
under  the  former  constitution,  in  his  work  entitled  "  Historical  Sketches 
of  the  Principles  and  Maxims  of  American  Jurisprudence,  in  Contrast 
with  the  Doctrines  of  the  English  Common  Law,  on  the  Subject  of 
Crimes  and  Punishments,"  (1819),  completely  refuted  the  soundness  of 

1  Only  so  much  of  the  case  as  discusses  the  province  of  the  common  law  in  Ohio  is 
given. 


SECT.  I.]  UNITED    STATES    V.    SMITH,  '  17 

tliat  view,  and  it  is  now  perfectly  well  settled  that  Ohio  v.  Laffeity  is 
not  law.  Key  v.  Vattier,  1  Ohio,  132,  144;  Winn  v.  State,  10  Ohio, 
345  ;  Vanvalkenburgh  v.  State,  11  Ohio,  404;  Allen  v.  State,  10  Ohio 
St.  287,  301 ;  Smith  v.  State,  12  Ohio  St.  466,  469  ;  Knapp  v.  Thomas, 
39  Ohio  St.  377,  385. 

2.  In  Older  that  this  statement  ma}-  not  mislead,  it  is  proper  to  say, 
that  while  the  rule  is  well  settled  that  a  statute  defining  a  crime  and 
prescribing  punishment  therefore  must  be  strictlj'  construed  (Denbow 
r.  State,  18  Ohio,  11  ;  Hall  v.  State,  20  Ohio,  1  ;  Shultz  v.  Cambridge, 
38  Ohio  St.  659)  ;  still,  where  the  legislature,  in  defining  a  crime,  adopts 
the  language  employed  b}'  writers  of  recognized  authority  in  defining 
the  crime  at  common  law,  the  presumption  is  that  it  was  intended  the 
commission  of  acts  which  at  common  law  would  constitute  such  crime, 
should  constitute  a  crime  under  the  statute,  and  the  statute  will  be  so 
construed.  Accordingly  it  was  held  in  Ducher  v.  State,  18  Ohio,  308, 
that  where  the  defendant  obtained  entrance  into  a  house  b}'  fraud,  with 
intent  to  steal,  he  entered  "forcibly;"  and,  on  the  same  principle,  it 
was  held  in  Turner  v.  State,  1  Ohio  St.  422,  that  where,  by  putting  a 
person  in  fear,  mone}'  is  taken,  not  from  his  person,  but  from  his 
presence,  the  money  being  under  his  immediate  control,  the  crime  of 
robbery  is  shown,  within  the  meaning  of  the  statute  which  punishes 
taking  money  "  from  the  person  of  another."  ^ 


6. 

UNITED   STATES   v.   SMITH. 

Circuit  Court  of  the  United  States.    1792. 

[Rejwi-t  6  Dane's  Abridgment,  718]. 

Four  indictments  at  common  law  against  the  defendants  for  counter- 
feiting bank  bills  of  the  Bank  of  the  United  States,  passing  them,  and 
having  tools  to  counterfeit,  etc.  Smith  was  found  guilty  of  passing 
bank  bills  of  the  said  bank,  counterfeited. 

1  See  to  the  same  effect,  Hartford  v.  State,  96  Ind.  461  ;  Estes  v.  Carter,  10  la,  400  ; 
Pitcher  v.  People,  16  Mich,  142  ;  Ex  parte  Meyers,  44  Mo.  279  ;  State  v.  De  Wolfe, 
67  Neb.  321  ;  State  v.  Gaunt,  13  Or.  115.  In  a  few  states  the  crime  must  not  only 
be  made  punishable  but  must  also  be  defined  by  statute  :  Williams  v.  State,  18  Ga. 
356  ;  State  v.  Young,  55  Kan.  349. 

The  criminal  law  of  England  was  adopted  by  statute  in  Texas.  Chandler  v.  State, 
2  Tex.  -305.  But  it  is  now  provided  that  no  act  shall  be  a  crime  unless  it  is  so  provided 
by  statute.     Ex  parte  Bergen,  14  Tex.  App.  52. 

In  Louisiana  the  common  law  has  also  been  adopted  by  statute  ;  but  the  legislature 
must  declare  and  define  all  crimes.     State  v.  Gaster,  48  La,  Ann.  636. —  Ed. 

2 


CJ<^ 


UNITED   STATES   V.    HUDSON. 


(  [chap.  I. 

/Parsons  moved  in  arrest  of  judgment,  because  there  was  no  federal 'y 
statute  on  the  subject ;  hence  only  an  offence  at  common  law  ;  and  the  ^ 
state  courts  exclusively  have  jurisdiction  of  these  offences.  (^ 

The  Court  held,  the  act  incorporating  the  bank  of  the  United  States 
^-^  was  a  constitutional  act,  and  that  by  the  Constitution  of  the  United 
States  the  federal  courts  had  jurisdiction  of  all  causes  or  cases  in  law 
and  equity,  arising  under  the  said  constitution  and  laws  of  the  United 
States;  that  this  was  a  case  arising  under  those  laws,  for  those  bills 
were  made  in  virtue  thereof,  though  there  was  no  statute  describing  or  t 
punishing  the  offence  of  counterfeiting  them  ;  and  therefore  to  counter-  ^ 
feit  them  was  a  contempt  of  and  misdemeanor  against  the  United 
States,  and  punishable  by  them  as  such. 


'^ 


■1 


;!> 


.5 


f^  u 


S 


UNITED   STATES   v.   HUDSON. 

Supreme  Court  op  the  United  States.     1812. 

[Reported  7  Cranch,  32.] 

This  was  a  case  certified  from  the  Circuit  Court  for  the  District  of 
Connecticut,  in  which,  upon  argument  of  a  general  demurrer  to  an  In-  L  • 
dictment  for  a  libel  on  the  President  and  Congress  of  the  United  States,  >• 
contained  in  the  "  Connecticut  Currant "  of  the  7th  of  May,  1806,  charg- 
ing them  with  having  in  secret  voted  two  millions  of  dollars  as  a  pres-  P 
eiit  to  Bonaparte  for  leave  to  make  a  treaty  with  Spain,  the  judges  of  Q 
that  court  were  divided  in  opinion  upon  the  question,  whether  the  Cir-  ,' 
cuit  Court  of  the  United  States  had  a  common-law  jurisdiction  in  cases  f 
of  libel.  (^ 

PinJaiey,   Attorney-General,   in  behalf  of  the  United   States,    and  >• 
'Dana,  for  the  defendants,  declined  arguing  the  case.  ^ 

The  Court  having  taken  time  to  consider,  the  following  opinion  was  ^ 
delivered  (on  the  last  day  of  the  term,  all  the  judges  being  present)  by 
Johnson,  J. 

The  only  question  which  this  case  presents  is,  whether  the  Circuit 
Courts  of  the  United  States  can  exercise  a  common-law  jurisdiction  in 
criminal  cases.  We  state  it  thus  broadly  because  a  decision  on  a  case 
of  libel  will  apply  to  every  case  in  which  jurisdiction  is  not  vested  in 
those  courts  by  statute. 

Although  this  question  is  brought  up  now  for  the  first  time  to  be' 
decided  by  this  court,  we  consider  it  as  having  been  long  since  settled 
in  public  opinion.  In  no  other  case  for  many  years  has  this  jurisdic- 
tion been  asserted  ;  and  the  general  acquiescence  of  legal  men  shows 
the  prevalence  of  opinion  in  favor  of  the  negative  of  the  proposition. 


^ 


SECT.  I.]  UNITED    STATES   V.    HUDSON.  19 

The  course  of  reasoning  which  leads  to  this  conclusion  is  simple, 
obvious,  and  admits  of  but  little  illustration.  The  powers  of  the  gen- 
eral government  are  made  up  of  concessions  from  the  several  States, 
—  whatever  is  not  expressl}*  given  to  the  former,  tlie  latter  expressl}^ 
reserve.  The  judicial  power  of  the  United  States  is  a  constituent  part 
of  those  concessions,  — that  power  is  to  be  exercised  bv  courts  organ- 
ized for  the  purpose,  and  brought  into  existence  b}'  an  eflbrt  of  the 
legislative  power  of  the  Union.  Of  all  the  courts  which  the  United 
States  may,  under  their  general  powers,  constitute,  one  onl}-,  the  Su- 
preme Court,  possesses  jurisdiction  derived  immediately  from  the  Con- 
stitution, and  of  which  the  legislative  power  cannot  deprive  it.  All 
other  courts  created  b}-  the  general  government  possess  no  jurisdiction 
but  what  is  given  them  by  the  power  that  creates  them,  and  can  be 
vested  with  none  but  what  the  power  ceded  to  the  general  government 
will  authorize  them  to  confer. 

It  is  not  necessary  to  inquire  whether  the  general  government,  in 
any  and  what  extent,  possesses  the  power  of  conferring  on  its  courts 
a  jurisdiction  in  cases  similar  to  the  present.  It  is  enough  that  such 
jurisdiction  has  not  been  conferred  b}'  an}'  legislative  act,  if  it  does  not 
result  to  those  courts  as  a  consequence  of  their  creation. 

And  such  is  the  opinion  of  the  majority-  of  this  court ;  for  the  power 
which  Congress  possess  to  create  courts  of  inferior  jurisdiction  neces- 
sarily implies  the  power  to  limit  the  jurisdiction  of  those  courts  to  par- 
ticular objects  ;  and  when  a  court  is  created  and  its  operations  confined 
to  certain  specific  ol)jects,  with  what  propriety  can  it  assume  to  itself 
a  jurisdiction  much  more  extended,  in  its  nature  ver}-  indefinite,  appli- 
cable to  a  great  variet}'  of  subjects,  varying  in  every  State  in  the 
Union,  and  with  regard  to  which  there  exists  no  definite  criterion  of 
distribution  between  the  district  and  Circuit  Courts  of  the  same 
district? 

The  onl}'  ground  on  which  it  has  ever  been  contended  that  this 
jurisdiction  could  be  maintained  is,  that  upon  the  formation  of  any 
political  body  an  implied  power  to  preserve  its  own  existence  and  pro- 
mote the  end  and  object  of  its  creation  necessarily  results  to  it.  But 
without  examining  how  far  this  consideration  is  applicable  to  the  pecu- 
liar character  of  our  Constitution,  it  may  be  remarked  that  it  is  a  prin- 
ciple by  no  means  peculiar  to  the  common  law.  It  is  coeval  probably 
with  the  first  formation  of  a  limited  government,  belongs  to  a  system 
of  universal  law.  and  ma}'  as  well  support  the  assumption  of  many 
other  powers  as  those  more  peculiarly  acknowledged  b}'  the  common 
law  of  England. 

,  But  if  admitted  as  applicable  to  the  state  of  things  in  this  country, 
the  consequence  would  not  result  from  it  which  is  here  contended  for. 
If  it  ma}'  communicate  certain  implied  powers  to  the  general  govern- 
ment, it  would  not  follow  that  the  courts  of  that  government  are  vested 
with  jurisdiction  over  any  particular  act  done  by  an  individual  in  sup- 
posed violation  of  the  peace  and  dignity  of  the  sovereign  power.     The 


fe 


-?  H 


^ 


BAKKER   V.    PEOPLE. 


[chap.  I. 


legislative  authority  of  the  Union  must  first  raake  an  act  a  crime,  affix 
a  punishment  to  it,  and  declare  the  court  that  shall  have  jurisdiction 
of  the  offence. 

Certain  implied  powers  must  necessarily  result  to  our  courts  of  jus- 
tice from  the  nature  of  their  institution  ;  but  jurisdiction  of  crimes 
against  the  State  is  not  among  those  powers.  To  tine  for  contempt, 
imprison  for  contumacy,  enforce  the  observance  of  order,  etc.,  are 
powers  which  cannot  be  dispensed  with  in  a  court,  because  they  are 
necessary  to  the  exercise  of  all  others  ;  and  so  far  our  courts  no  doubt 
possess  powers  not  immediately  derived  from  statute  ;  but  all  exercise 
of  criminal  jurisdiction  in  common-law  cases  we  are  of  opinion  is  not 
within  their  implied  powers.^ 


1 


.5 


c/? 


^ 


f 


BARKER   V.   PEOPLE. 
Court   of  Ekkors,  New  York.     1824. 

[Reported  3   Cowcn,  G86  ] 

Error  to  the  Supreme  Court.  In  February,  1822,  Jacob  Barker, 
the  plaintiff  in  error,  was  indicted  in  the  Court  of  General  Sessions  of 
the  Peace,  of  the  city  and  county  of  New  York,  for  sending  a  challenge 
to  David  Rogers  to  fight  a  duel.  The  indictment  contained  five  counts ; 
the  first  four  of  which  alleged  the  offence  to  have  been  con)mitted  by 
Barker  in  the  city  of  New  York,  on  various  days,  in  the  months  of 
January  and  February,  1822,  "  against  the  form  of  the  statute  in  such 
case  made  and  provided,"  being  founded  on  the  act  "  to  suppress 
duelling,"  passed  the  5th  of  November,  1816.  The  fifth  count  was  for  a 
similar  olTence  at  common  law.  The  plaintiff  in  error  was  tried  on  the 
indictment,  at  the  Court  of  General  Sessions,  held  in  the  city  of  New 
York,  in  May,  1822.  The  jury  rendered  a  general  verdict  of  guilty, 
and  the  District  Attorney  having  entered  a  nolle  prosequi  en  the  fifth 
count  (for  the  offence  at  common  law),  the  Court,  thereupon,  gave 
judgment  that  the  plaintiff  in  error,  "for  the  offence  aforesaid,  as 
charged  in  the  first,  second,  tliird,  and  fourth  counts  of  the  said  indict- 
ment, whereof  he  is  convicted,  be  incapable  of  holding,  or  being  elected 
to  any  post  of  profit,  trust,  or  emolument,  civil  or  military,  under  the 
State  of  New  Yoik." 

A  writ  of  error  was  brought,  on  tliis  judgment,  to  the  Supreme  Court, 
which,  in  January  term,  1823,  affirmed  the  judgment  of  the  General 

1  The  common  law  defines  the  terms  and  prevails  in  all  questions  except  jurisdiction 
to  punisli  for  crimes,  U.  S.  v.  Carll.     105  U.  S.  611. 

The  common  law  as  to  crime  prevails  in  the  District  of  Columbia.  Tyner  v.  U.  S. , 
2D  App.  D.  C.  324.  —  Ed. 


SECT.  I.] 


BARKER    V.    PEOPLE. 


21 


Sessions.     (Vide  20  John.  Rep.  457  S.  C,  which  contains  the  reasons 
assigned  to  this  Court  in  support  of  the  judgment.)  ^ 

Sanford,  Chancellor.  The  first  section  of  the  act  of  the  fifth  of 
November  1816,  to  suppress  duelling,  prescribes,  that  "the  person 
convicted  shall  be  incapable  of  holding  or  being  elected  to  any  post 
of  profit,  trust,  or  emolument,  civil  or  military,  under  this  state:" 
and  the  objection  now  made  is,  that  this  punishment  is  inconsistent 
with  the  constitution. 

The  constitution  of  the  United  States  provides  that  cruel  and  unusual 
punishments  shall  not  be  inflicted.  The  power  of  the  legislature  in 
tlie  punishment  of  crimes  is  not  a  special  grant,  or  a  limited  authority 
to  do  any  particular  thing,  or  to  act  in  an}'  particular  manner.  It  is  a 
part  of  "  the  legislative  power  of  this  state,"  mentioned  in  the  first 
sentence  of  the  constitution.  It  is  the  sovereign  power  of  a  state 
to  maintain  social  order  by  laws  for  the  due  punishment  of  crimes.  It 
is  a  power  to  take  life,  and  liberty,  and  all  the  rights  of  both,  when  the 
sacrifice  is  necessary  to  the  peace,  order,  and  safety  of  the  community. 
This  general  authority  is  vested  in  the  legislature,  and  it  is  one  of  the 
most  ample  of  their  powers,  its  due  exercise  is  among  the  highest  of 
their  duties.  When  an  offender  is  imprisoned,  he  is  deprived  of  the 
exercise  of  most  of  the  rights  of  a  citizen  ;  and  when  he  suffers  death, 
all  his  rights  are  extinguished.  The  legislature  have  power  to  prescribe  yO 
imprisonment  or  death  as  the  punishment  of  any  offence.  The  rights  "'- 
of  a  citizen  are  thus  subject  to  the  power  of  the  state  in  the  punishment 
of  crimes  ;  and  the  restrictions  of  the  constitution  upon  this,  as  upon  , 
all  the  general  powers  of  the  government,  are,  that  no  citizen  shall  be  CI 
deprived  of  his  rights,  unless  by  the  law  of  the  land  or  the  judgment  of 
his  peers,  and  that  no  person  shall  be  deprived  of  life,  liberty,  or 
property,  without  due  process  of  law. 

The  constitution  has,  in  one  case,  limited  punishment.  Wlien  an  officer 
of  the  state  is  convicted  upon  impeachment,  the  judgment  cannot  ex- 
tend farther  than  removal  from  office  and  disqualification  to  hold  office. 
This  provision  stands  here  a  restriction,  not  an  authority.  As  the  pun- 
ishment is  not  to  extend  farther  than  removal  and  disqualification,  the 
sense  of  the  terms,  and  the  known  course  of  proceedings  in  the  country 
from  wiiich  we  derive  the  history  and  practice  of  impeachments,  both 
show  that  this  provision  is  a  mere  limitation  of  a  greater  power,  a 
power  to  inflict  other  punishments,  as  well  as  removal  and  disqualifica- 
tion. Impeachments  of  public  officers,  a  peculiar  species  of  accusation 
made  and  tried  in  a  peculiar  manner,  are  to  extend  no  farther  in  their 
eff'ect  than  to  discharge  an  officer  from  his  trust,  and  to  render  him 
incapable  of  holding  office ;  but  if  the  cause  for  which  the  officer  is  ihus 
punished  is  a  public  off"ence,  he  may  be  also  indicted,  tried,  and  pun- 
ished according  to  law  ;  the  constitution  leaving  the  definition  of  the 
oSence  and  its  particular  punishment  in  this  case,  as  in  all  the  others. 


f 


'/ 


^  Arguments  of  counsel  and  parts  of  the  opinion  of  the  court  are  omitted.— Ed. 


r^y 


BAKKER 


PEOPLE. 


[chap.  I. 


to  the  general  power  of  the  legislature.     This  part  of  the  constitution 
concerning  judgment  on  impeachments  is  therefore  a  limitation  of  the 
power  of  the  court  for  the  trial  of  impeachments,  and  not  a  restriction 
upon  the  general  power  of  the  legislature  over  crimes. 
(        ;  The  power  of  the  state  over  crimes  is  thus  committed  to  the  legisla- 

\f^  ^  ture  without  a  definition  of  any  crime,  without  a  description  of  any 
punishment  to  be  adopted  or  to  be  rejected,  and  without  any  direction 
to  the  legislature  concerning  punishments.  It  is,  tlien,  a  power  to  pro- 
duce the  end  by  adequate  means  ;  a  power  to  establish  a  criminal  code, 
with  competent  sanctions;  a  power  to  define  crimes  and  prescribe 
punishments  by  laws  in  the  discretion  of  the  legislature. 

But  though  no  crime  is  defined  in  the  constitution,  and  no  species  of 
punishment  is  specially  forbidden  to  the  legislature,  3-et  there  are  nu- 
merous regulations  of  the  constitution  which  must  operate  as  restrictions 
upon  this  general  power.  The  whole  constitution  must  be  supported, 
and  all  its  powers  and  rules  must  be  reconciled  into  concord.  A  law 
whicli  should  declare  it  a  crime  to  exercise  aii\'  fundamental  right  of  the 
constitution,  as  the  right  of  suffrage,  or  tlie  free  exercise  of  religious 
worshii),  would  infringe  an  express  rule  of  the  system,  and  would  there- 
fore not  be  within  the  general  power  over  crimes.  Particular  punish- 
ments would  also  encroach  upon  rules  and  rights  established  by  the 
constitution.  Though  the  legislature  have  an  undoubted  power  to 
prescribe  capital  punishment  and  other  punishments  which  produce  a 
disability  to  enjoy  constitutional  rights,  yet  a  mere  deprivation  of 
rights  would,  even  as  a  punishment,  be,  in  many  cases,  repugnant  to 
rules  and  rights  expressly  established.  Many  rights  are  plainly  ex- 
pressed, and  intended  to  be  fundamental  and  inviolable  in  all  circum- 
stances. A  law  enacting  that  a  criminal  should,  as  a  punisliment  for 
his  offence,  forfeit  the  riglit  of  trial  b}-  jury,  would  contravene  the 
constitution ;  and  a  deprivation  of  this  right  could  not  be  allowed  in 
the  form  of  a  punishment.  Any  other  right  thus  secured,  as  universal 
and  inviolable,  must  equally  prevail  against  the  general  power  of  the 
legislature  to  select  and  prescribe  punishments.  These  rights  are  se- 
cured to  all;  to  criminals  as  well  as  to  others;  and  a  punishment 
consisting  solely  in  the  deprivation  of  such  a  right  would  be  an  evident 
infringement  of  the  constitution.  Any  punishment  operating  as  an 
infringement  of  some  rule  thus  expressly  established,  or  some  right 
thus  expressly  secured,  would  be  unconstitutional ;  and  all  punishments 
which  do  not  subvert  such  rules  and  rights  of  the  constitution  are 
within  the  scope  and  choice  of  the  legislative  power. 

But  while  many  rights  are  consecrated  as  universal  and  inviolable, 
the  right  of  elegibility  to  office  is  not  so  secured.  It  is  not  one  of  the 
express  rules  of  the  constitution,  and  is  not  declared  as  a  right,  or  men- 
tioned in  terms  as  a  principle,  in  any  part  of  the  instrument. 
Important  as  this  right  is,  it  stands,  as  tiie  right  to  life  itself  stands, 
subject  to  the  general  power  of  the  legislature  over  crimes  and 
punishments. 


SECT.  I.]  LEDGERWOOD   V.    STATE. 

It  has  been  strongly  urged  that  tlie  power  to  prescribe  this  species 
of  i)unishment  may  be  abused.  That  such  a  power  may  be  abused 
cannot  be  denied,  since  all  power  entrusted  to  men  is  subject  to  abuse. 
The  power  to  declare  crimes  and  prescribe  punishments  is  iiigh,  indefi- 
nite, and  discretionary,  and  therefore  affords  ample  room  for  abuse. 
Yet  the  legislature  by  their  acts,  instead  of  an}'  tendency  to  severity, 
show  a  strong  disposition  to  mildness  in  the  use  of  their  power  over 
crimes  and  punishments.  That  disqualification  to  hold  public  trusts 
will  become  a  frequent  punishment  seems  not  probable  ;  the  legis- 
lature having  hitherto  adopted  this  punishment  only  in  the  two 
cases  of  bribery  and  duels.  But  whatever  maj*  be  the  danger  of  abuse, 
the  punishment  itself  is  not  unconstitutional.  The  remedy  for  abuse  of 
the  legislative  power,  in  enacting  laws  which  may  be  unwise,  while  they 
are  not  unconstitutional,  is  not  in  tlie  courts  of  justice.  It  is  found  in 
other  parts  of  the  system,  in  frequent  elections  and  in  the  due  course 
of  the  legislative  power  itself,  which  alike  enacts  and  repeals  laws  in 
pursuance  of  pul)lic  opinion.  That  this  punishment  is  little  consonant 
to  the  genius  of  our  institutions  ;  that  there  is  an  ample  choice  of  pun- 
ishments for  crimes  without  adopting  this  ;  that  the  electors  and  the 
appointing  powers  should  enjoy  their  free  choice  for  public  stations, 
without  legal  exclusions  even  for  crimes,  are  reasons  of  great  force; 
but  they  are  reasons  upon  which  the  legislature  must  decide. 

My  opinion  upon  the  whole  case  is.  that  the  punisliment  of  incapac- 
ity to  hold  office,  prescribed  by  the  act  to  suppress  duelling,  is 
not  inconsistent  with  the  constitution;  and  that  tiiis  cause  has  been 
rightly  determined  by  the  courts  through  which  it  has  passed. 

Bowman,  Burt,  Clark,  Dudley,  Earll,  Gardiner,  Height, 
Lynde,  Mallory,  M'Call,  MTntyre,  Redfield,  Sudam,  Thorn, 
Ward,   Wooster,    and  "Wright,  Senators,  concurred. 

Ogden,  Senator,  dissented. 


LEDGERWOOD   v.   STATE. 
Supreme  Court  of  Ixdiana.     1893. 

[Bfported  134  Ind.  81]. 

McCabe,  J.  —  The  appellant  was  convicted  by  the  Circuit  Court  on 
a  plea  of  guilty  on  an  indictment  charging  him  and  Samuel  Harbin  with 
arson,  and  each  was  sentenced  to  the  State's  prison  for  the  period  of 
seventeen  years,  and  the  court  fined  each  of  them  one  hundred  dollars, 
and  rendered  judgment  accordingly.     The  appellant  alone  appeals. 

Tlie  errors  assigned  are  : 

1  and  2.  That  the  indictment  does  not  state  facts  sufficient  to  con- 
stitute a  public  offence. 

3.    That  the  court  had  no  jurisdiction  of  the  subject. 


24 


LEDGERWOOD   V.    STATE. 


[chap.  I. 


^ 


4.  That  the  court  had  no  jurisdiction  over  the  person  of  appellant. 

5.  That  there   was  error   in    overruling  appellant's   motion   to   be 

discharged. 

6.  That  there  was  error  in  permitting  the  state  to  file  counter-motions 
and  affidavits  to  appellant's  motion  for  discharge. 

7.  That  there  was  error  in  overruling  the  motion  to  strike  out  parts 
of  said  counter-affidavits. 

8.  Tliat  there  was  error  in  overruling  appellant's  motion  in  arrest  of 
judgment. 

9.  That  there  was  error  in  overruling  appellant's  motion  for  a  new 

trial. 

There  were  two  counts  in  the  indictment.  Therefore,  if  either  count 
was  sufficient,  there  was  no  error  in  overruling  the  motion  in  arrest  of 
judgment.     Bryant  v.  State,  106  Ind.  549. 

The  first  count  reads  as  follows,  omitting  the  formal  part:  "That 
Bazil  Ledgerwood  and  Samuel  Harbin,  on  the  7th  day  of  October, 
1891,  at  and  in  the  county  of  Daviess,  in  th-^  State  of  Indiana,  did 
then  and  there  unlawfully,  wilfully,  maliciously,  and  feloniously  set  on 
fire  and  attempt  to  burn  down  and  destroy  the  county  court-house, 
situate  in  the  city  of  Washington,  in  Daviess  county,  in  the  State  of 
Indiana,  which  county  court-house  was  then  and  there  the  property 
of  Daviess  county,  and  then  and  there  of  the  value  of  fifty  thousand 
dollars." 

We  think  this  count  is  sufficient  in  its  statement  of  the  facts  consti- 
tuting the  offence  defined  by  section  1927,  R.  S.  1881,  as  amended  by 
tlie  act  approved  March  9lh,  1891,  to  withstand  a  motion  in  arrest. 
Acts  1891,  p.  402. 

It  is  insisted  by  appellant's  counsel  that  the  latter  act  is  invalid, 
because  it  does  not  define  the  crime  of  arson,  and  in  support  of  that 
contention  they  cite  the  statute  which  i)rovides  that  "Crimes  and  mis- 
demeanors shall  be  defined  and  punishment  therefor  fixed  by  statutes 
of  this  State,  and  not  otherwise."     Section  237,  R.  S.  1881.     . 

Tliis  statute  was  enacted  in  1852  as  the  second  section  of  an  act 
entitled  "  An  act  declaring  the  law  governing  this  State  "  approved 
May  31st,  1852.  Section  605,  1  R.  S^  1876.  All  that  part  of  the  act 
relating  to  what  laws  were  in  force,  and  especially  that  part  adopting 
the  English  common  law,  with  certain  exceptions,  had  substantially 
been  in  force  in  this  state  before.  Indeed,  the  English  common  law, 
with  the  exceptions  mentioned,  had  been  adopted  in  this  state  as  far 
back  as  the  year  1795  by  the  Governor  and  judges  of  the  then  Terri- 
tor}-,  and  that  provision  was  substantialh'  reenacted  b}'  the  Territorial 
Legislature  in  1807,  and  has  been  substantially  reenacted  at  every 
revision  of  our  statute  since  that  time.  Stevenson  v.  Cloud,  5  Blackf. 
92.  But  in  the  act  of  1852,  above  referred  to,  the  provision  as  to  the 
definition  of  crimes  and  misdemeanors  was  added  for  the  first  time, 
it  being  the  first  provision  of  the  kind  ever  adopted  in  this  state. 

In  support  of  their  construction  of  the  statute  above  cited,  appellant's 


SECT.  I.] 


LEDGEIIWOOD   V.    STATE. 


25 


counsel  cite  Rosenbaum  v.  State,  4  Ind.  599;  Smoot  v.  State,  18  Ind. 
18  ;  State  v.  President,  etc.,  Ohio,  etc.,  R.  R.  Co.,  23  Ind.  362  ;  State  v. 
Jolinson,  G9  Ind.  85  ;  Stepliens  v.  State,  107  Ind.  185. 

We  liave  examined  these  cases,  and  find  them  not  at  all  in  point,  for 
reasons  so  obvious  that  further  comment  on  them  is  unnecessary. 

The  appellant's  attorneys  further  seek  to  support  their  contention  by 
citing  Hackney  v.  State,  8  Ind.  491;  Jennings  v.  State,  Ig  Ind.  335; 
and  Marvin  v.  State,  19  Ind.  181.  It  must  be  conceded  that  these 
cases  all  directly  support  appellant's  contention,  aud  hold  that  a 
statute  tliat  does  not  define  a  public  offence  with  some  degree  of 
minuteness  is  void  because  not  in  conformity  to  the  first  statute  above 
quoted.  But  these  cases,  and  others  like  them,  were  all  overruled  by 
this  court  in  Wall  v.  State,  23  Ind.  150.  That  case  has  been  followed 
by  an  unbroken  line  of  decisions  by  this  court  until  the  present  time. 
But  the  ground  npon  which  Frazer,  Judge,  speaidng  for  the  whole 
court,  placed  the  decision  in  that  case,  has  given  rise  to  some  confu- 
sion as  to  the  real  condition  of  our  criminal  code.  That  able  jurist  in 
that  case  said  "That  the  Legislature  can  not  in  such  a  matter  impose 
limits  or  restrictions  upon  its  own  future  action,  and  that  when  two 
statutes  are  inconsistent,  the  last  enactment  stands  as  the  law,  are  very 
plain  propositions,  which  we  presume  will  never  be  controverted.  It 
follows  that  the  act  of  May  31st,  if  in  conflict  with  the  act  of  June  10th 
(which  was  the  date  of  the  enactment  of  the  criminal  code  of  1852), 
is  so  far  repealed  by  the  latter  act.  To  hold  that  the  legislature  may, 
by  mere  exercise  of  legislative  power,  say  what  a  future  legislature 
may  or  may  not  do,  would  be  but  to  declare  that  the  whole  legis- 
lative power  of  the  government  may  be  lawfully  annihilated,  and  the 
government  summarily  brought  to  an  end  by  the  action  of  one  of  its 
departments." 

While  the  principle  thus  announced  was  correct  in  the  abstract,  yet 
it  was  not  applicable  to  the  case,  and  did  not  furnish  the  true  and  real 
reason  that  made  the  conclusion  reached  in  the  case  sound  and  good 
law.  The  court  went  on  to  hold,  that  inasmuch  as  the  statute  above 
quoted  was  enacted  before  the  criminal  statute  then  in  question  was 
enacted,  which  it  was  complained  did  not  define  the  crime  sufficiently  ; 
that  the  last  act,  the  criminal  statute,  in  so  far  as  it  conflicted  with  the 
first,  operated  as  a  repeal  of  the  statute  above  quoted. 

As  before  stated,  this  decision  has  been  followed  hy  a  large  number 
of  cases  in  which  the  same  reason  is  given  for  the  ruling,  and,  finally, 
in  Hood  v.  State,  56  Ind.  263,  and  Ardery  v.  State,  56  Ind.  328,  it  was 
held  that  the  section  of  the  statute  above  quoted  was  repealed  by  the 
act  creating  crimes  and  misdemeanors.  And  though  that  section  has 
not  since  been  reenacted  b}-  the  legislature,  and  the  decisions  of 
this  court  in  Hood  v.  State,  supra,  and  Arder^'  v.  State,  supra,  have  ^ 
not  been  overruled,  this  court  has,  in  Jones  v.  State,  59  Ind.  229,  and  P 
Stephens  v.  State,  107  Ind.  185,  said  of  this  section,  that  "  That  pro-  r 
vision  of  law  still  continues  in  force."     Other  cases,  perhaps,  make  the^  ' 


r 


o? 


cfi 


26 


LEDGEEWOOD   V.    STATE. 


[chap.  I. 


^ 


/ 
^ 


same  declaration.  How  such  a  conclusion  is  reached  neither  of  the 
learned  judges,  Howk  and  Niblack,  delivering  the  opinions,  respec- 
tively, in  those  cases,  tells  us.  The  truth  is,  the  long  line  of  cases 
culminating  in  the  two  cases  in  56  Ind.,  supra,  not  being  overruled, 
and  the  statute  therein  held  to  be  repealed,  never  having  been  reenacted, 
it  is  difficult  to  see  how  it  still  remained  in  force. 

In  the  case  in  107  Ind.,  supra,  Niblack,  J.,  cites  in  support  of  the 
opinion  Hackne\'  v.  State,  stq^ra,  which,  as  we  have  seen,  had  long 
before  been  overruled,  and,  as  we  now  hold,  correcth'  overruled.  The 
inevitable  result  is,  if  the  statute  mentioned  has  been  repealed,  as  this 
court  held  in  the  cases  in  56  Ind.,  supra,  it  makes  a  great  difference 
in  our  criminal  law.  With  that  statute  repealed,  instead  of  public 
offences  being,  as  is  generally  supposed,  of  statutory  creation  exclu- 
sivel}',  we  have  all  common-law  offences  as  well  as  those  of  statutor}' 
origin  as  parts  of  our  criminal  law. 

Such  a  result  as  that,  it  is  well  understood,  is  ver}'  undesirable  with 
the  courts,  the  legal  profession,  and  the  people.  This  undesirable 
result  has  been  brought  about  by  aosigning  a  wrong  reason  for  a  right 
decision,  in  Wall  v.  State,  snpra,  and  following  that  reason  to  its 
legitimate  result  in  the  subsequent  cases.  The  section  of  the  statute 
in  question  was  never  intended,  b}'  the  legislature  that  enacted  it,  to 
place  a  restriction  ui)on  the  action  of  future  legislatures,  or  even  upon 
itself,  as  to  the  manner  of  defining  crimes  and  misdemeanors.  This 
is  apparent  when  we  take  into  consideration  the  history  of  the  whole 
act  in  which  this  provision  is  found  and  the  evils  sought  to  be  remedied 
b}'  the  provision. 

As  we  have  already  seen,  that  part  of  the  act  adopting  the  English 
common  law,  which  was  enacted  b}'  the  Governor  and  judges  of  the 
Indiana  Territory  in  1795,  and  reenacted  in  all  the  revisions  of  our 
statutes  substantially  as  it  now  is,  until  1852,  and  then  for  the  first 
time  the  provision  in  question  was  added  to  that  act.  Prior  to  that 
time  the  common  law  as  to  crimes  and  misdemeanors  was  in  force 
because  it  was  so  enacted  b\'  adopting  the  common  law  by  the  legisla- 
tive authorit}-  of  the  state  without  exeception  of  limitation  ay  to  crimes 
and  misdemeanors.     State  v.  Bertheol,  6  Blackf.  474. 

It  was  undoubtedly  the  intention  of  the  legislature  in  1852,  by  add- 
ing the  provision  under  consideration  to  the  act  adopting  the  common 
law,  to  adopt  a  new  and  different  system  of  criminal  law  from  that 
which  had  formerly  prevailed ;  it  was  the  intention  to  modify  the  act 
adopting  the  common  law  so  as  not  to  adopt  that  part  of  it  relating 
to  crimes  and  midemeanors.  It  was  the  evil  of  the  common  law  as  to 
criminal  offences  which  were  so  great  in  number,  and  sometimes  very 
shadowy  and  unsubstantial,  imposing  upon  the  people  and  the  courts 
tlie  necessity  of  wading  through  volumes  of  abstruse  learning  to  ascer- 
tain what  acts  were  criminal  that  the  legislature  proposed  to  rid  the 
people  of.  That  could  be,  and  was,  accomplished  by  not  adopting  the 
common  law  as  to  crimes  and  misdemeanors.  It  was  desirable  and 
necessary  to  the  public  weal  to  adopt   the  common  law  as  to  other 


SECT.  I.]  LEDGERWOOD   V.   STATE.  27 

subjects.  Therefore,  the  intention  as  to  public  offences  was  made 
manifest  and  effectual  by  adding  the  provision  to  the  act  adopting 
the  common  law  that  "crimes  and  misdemeanors  shall  be  defined, 
and  punishment  therefor  fixed,  by  statutes  of  this  state  and  not 
otherwise." 

Jt  was  not  for  the  purpose  of  securing  a  more  minute  definition  of 
crimes  and  misdemeanors  than  the  common  law  afforded,  that  this  pi'o- 
vision  was  added,  but  it  was  to  get  rid  of  common-law  offences  entirely 
bj'  not  adopting  that  part  of  the  common  law.  If  the  common  law 
had  not  been  adopted  at  all,  in  whole  or  in  part,  the  provision  in  ques- 
tion would  have  had  no  significance  or  force  whatever.  Because,  if  no 
part  of  the  common  law  had  been  adopted,  the  provision  in  question 
would  have  been  the  law  without  being  enacted.  If  there  was  no 
common  law  of  any  kind  in  force,  crimes  and  misdemeanors  must, 
of  necessity,  be  defined  and  punishment  therefor  fixed  by  statutes 
of  this  state  and  not  otherwise.  Therefore,  this  provision  was  only 
made  necessary  to  secure  a  purely  statutor}-  criminal  code  because 
of  the  adoption  of  the  common  law.  This  view  of  the  provision 
relieves  it  from  the  charge  that  it  sought  to  trammel  future  legis- 
latures, requiring  of  them  any  degree  of  minuteness  in  defining  crimes  ; 
indeed,  no  act  subsequent  to  that,  however  vague  and  general  in  its 
definition  of  public  offences,  is  at  all  inconsistent  with  that  act;  on  the 
contrary,  all  such  acts  are  in  harmony  with  it.  It  has  been  held,  and 
we  think  properly  under  that  statute,  that  the  crime  may  be  designated 
by  the  statute  without  any  definition,  and  the  punishment  fixed,  and 
the  courts  would  define  the  crime  by  the  aid  of  common-law  definitions, 
and  the  general  import  of  the  language  employed.  Hedderich  v.  State, 
101  Ind.  564;  State  v.  Berdetta,  73  Ind.  185. 

We  think,  therefore,  it  was  error  to  hold  that  the  enactment  of 
criminal  statutes  without  specifically  defining  the  crimes  designated 
therein  repealed  the  provision  in  question  or  even  modified  it.  And 
while  a  proper  conclusion  was  reached  in  each  of  the  two  cases  in 
56  Ind.,  siqyra,  and  tlie  cases  leading  up  to  them,  yet  the}'  were  placed 
on  wrong  grounds,  and  so  far  as  they  hold  that  the  provision  in  ques- 
tion had  been  repealed  or  modified,  the}'  are  overruled,  and  we  ad- 
judge that  said  provision  is  still  in  force,  unrepealed  and  unmodified. 
And,  therefore,  that  we  have  no  common-law  offences  in  Indiana,  and 
that  the  statute  under  which  this  prosecution  is  waged,  which  reads 
as  follows  :  "  whoever  wilfully  and  maliciously  burns  or  attempts  to 
burn  any  dwelling-house  or  other  building,  finished  or  unfinished,  occu- 
pied or  unoccupied,  whether  the  building  be  used  or  intended  for  a 
dwelling-house  or  any  other  pui-pose  ;  "  .  .  .  "  the  property  so  burned 
or  attempted  to  be  burned,  being  of  the  value  of  twenty  dollars  or 
upwards,  and  being  the  property  of  another,  ...  is  guilty  of  arson, 
and  upon  the  conviction  thereof  shall  be  imprisoned  in  the  state  prison 
not  more  than  twenty-one  years,  nor  less  than  one  year,  and  fined  not 
exceeding  double  the  value  of  the  property  burned,  .  .  ."  is  not  invalid 
for  indefiniteness. 


5 


i 


VANDINE. 

)  O 
VANDINE,    Petitioner, 


[chap.  I. 


Supreme  Judicial  Court  of  Massachusetts.    1S28. 

[Reported  6  Pickering,  187.] 

Petition  for  a  writ  of  certiorari  to  the  Municipal  Court  of  the  city  of 
Joston.     Vaudine  was  prosecuted  upon  a  by-law  of  Boston,  passed  in 
[April  1826,  by  which  it  is  ordained,  that  no  person  shall  remove,  cart 
I  or  carry  through  any  of  the  streets,  squares,  lanes,  or  alleys  of  the  city, 
I  any  house-dirt,  refuse,  offal,  filth  or  animal  or  vegetable  substance  from 
any  of  the  dwelling-houses  or  other  places  occupied  by  the  inhabitants, 
in  any  cart,  w^igon,  truck,  hand-cart  or  other  vehicle,  unless  such  per- 
fson  so  removing,  etc.  together  with  the  cart,  etc.  shall  be  duly  licensed 
for  that  employment  and  purpose  by  the  mayor  and  aldermen,  upon 
I  such  terms  and  conditions  as  they  shall  deem  the  health,  comfort,  con- 
venience or  interest  of  the  city  require,  on  pain  of  forfeiting  a  sum  not 
less  than  three  dollars  nor  more  than  twenty. 

It  was  proved  at  the  trial,  that  Vandine  transported  house  dirt  and 
offal  from  the  yards  of  houses  to  his  cart  standing  in  the  streets  of  the 
city. 

Vandine  being  called  on  for  his  defence,  it  was  agreed  that  he  was 
an  inhabitant  of  the  town  of  Cambridge,  and  that  he  owned  and  kept 
there  a  large  number  of  hogs. 

TbB  judge  instructed  the  jury  that  the  subject  of  the  regulation 
was  one  on  which  it  was  proper  for  the  cit}'  to  legislate.  ,  .  . 
He  further  instructed  the  jury  that,  so  far  as  by  virtue  of  the  general 
laws  of  the  Commonwealth,  the  city  council  had  power  to  make  by-laws 
for  governing  the  city,  these  regulations  were  binding  on  all  persons 
actually  resident  within  its  limits,  either  for  business  or  pleasure,  and 
whether  inhabitants  or  strangers.^  .  '.   . 

Putnam,  J.,  delivered  the  opinion  of  the  Court.  The  first  objection 
is  that  this  In^-law  is  not  bindings  upon  strangers,  if  it  should  be 
considered  as  binding  upon  the  citizens  of  Boston. 

Some  by-laws  are  binding  upon  strangers  as  well  as  upon  the  inhab- 

,  T^tants  or  members  of  the  corporation,  and  some  are  not.     The  distinc- 

'j  tion  is  between  corporations  united  as  a  fraternity  for  the  purposes  of 

j  business,   having    no   local  jurisdiction,    and    corporations    having   a 

J  territorial  jurisdiction  ;  the  former  have  not,  but  the  latter  have  power 

to  make  by-laws  binding  upon  strangers. 

For  example:  a  by-law  of  the  corporation  of  Trinity  House,  "  that 
ever}'  mariner,  within  twenty  four  hours  after  anchoi'age  in  the  Thames, 
put  his  gunpowder  on  shore,  does  not  bind,  because  the  corporation  has 
no  jurisdiction  upon  the  Thames."     Com.  Dig.  Bye-law,  C  2. 

In  the  case  of  Dodwell  v.  The  University  of  Oxford,  2  Ventr.  33,  the 


^ 


1  Part  of  the  instructions  and  the  arfruments  of  counsel  have  been  omitted.  —  Ed. 


SECT.  I.]  VANDINE.  29 

Chancellor's  Court  of  the  Uuiversit}'  made  a  b^'-law,  that  whoever, 
privileged  or 'not  privileged,  should  be  taken  walking  in  the  streets  at 
9  o'clock  at  night,  having  no  reasonable  excuse,  by  the  proctor,  etc. 
should  forfeit,  etc.  And  it  was  held  that  the  corporation  could  not 
make  a  by-law  binding  upon  any  who  were  not  of  their  bod}'.  They 
went  beyond  their  jurisdiction,  which  could  not  be  considered  as 
extending  to  the  inhabitants  of  Oxford  who  were  not  scholars.  Regard 
is  to  be  had  to  the  nature  of  the  incorporation  ;  if  it  is  a  banking  incor- 
poration, for  example,  their  by-laws  must  be  confined  to  the  proper 
mode  of  conducting  their  affairs.  Where  the  corporation  has  a  local 
jurisdiction,  their  by-laws  affect  all  who  come  within  it ;  for  exam[)le, 
the  by-law  of  the  city  of  London,  that  no  citizen,  freeman  or  stranger 
should  expose  any  broad-cloth  to  sale  within  the  city  before  it  should 
be  brought  to  Black  well  Hall  to  be  examined  whether  it  were  saleable 
or  not,  was  held  binding  upon  strangers  as  well  as  citizens.     5  Co.  63. 

So  in  Pierce  v.  Bartrnm,  Cowp.  269,  a  by-law  of  the  mayor  and 
common  council  of  the  city  of  Exeter,  that  no  person  should  slaughter 
beasts  or  keep  swine  within  the  walls  of  the  city,  was  held  good  against 
tlie  defendant,  who  was  not  free  of  the  citj',  but  only  residing  there. 
He  was  considered  as  an  inhabitant  pro  hac  vice.  So  where  the  cor- 
poration have  jurisdiction  over  all  of  the  same  trade  or  profession 
within  certain  limits,  as  the  College  of  Physicians  have  for  seven  miles 
round  London  ;  whose  by-laws  regulating  the  practice  of  physic  arc 
binding  upon  all  within  those  limits. 

The  b^'-laws  which  are  made  by  corporations  having  a  local  jurisdic- 
tion, are  to  be  observed  and  obeyed  by  all  who  come  within  it,  in  the 
same  manner  as  aliens  and  strangers  within  the  commonwealth  are 
bound  to  know  and  obey  the  laws  of  the  land,  notwithstanding  they 
may  not  know  the  language  in  which  they  are  written.  They  receive 
the  benefits  arising  from  the  munici[)al  arrangements,  and  are  presumed 
to  assent  to  them,  upon  the  same  principle  which  requires  from  them  a 
temporary  allegiance  to  the  state  for  the  protection  it  affords  to  them 
during  their  residence. 

But  it  is  contended  that  this  by-law^  is  void  as  it  is  in  restraint  of 
trade,  and  operates  as  a  monopolv.  Every  regulation  of  trade  is  in 
some  sense  a  restraint  upon  it;  it  is  some  clog  or  impediment,  but  it 
does  not  therefore  follow  that  it  is  to  be  vacated.  If  the  regulation  is 
unreasonable,  it  is  void  ;  if  necessary  for  the  good  government  of  the 
society,  it  is  good. 

The  case  cited  by  the  counsel  for  the  defendant  from  1  Rol.  Abr. 
364,  was  of  the  former  character.  The  mayor  and  commonalty  of 
London  made  a  by-law,  that  no  carman  within  the  city  should  go  with 
his  cart,  without  license  from  the  wardens  of  such  an  hospital,  under  a 
certain  penalty  for  each  offence  ;  and  it  was  held  to  be  a  void  by-law, 
because  it  was  in  restraint  of  the  libertj^  of  the  trade  of  a  carman,  and 
it  was  held  to  be  unreasonable,  because  it  went  to  the  private  benefit  of 
the  wardens  of  the  hospital,  and  was  in  the  nature  of  a  monopoly. 


30 


VANDINE. 


[CIUP.  I. 


'P' 


Now  we  think  that  case  was  rightl}'  decided  ;  it  was  an  act  of  oppression. 
We  perceive  no  reason  why  the  wardens  of  the  hospital  should  have  a 
superinteudance  and  control  of  all  the  business  of  the  carmen,  thus 
laying  them  under  a  contribution  at  the  will  of  the  wardens. 

To  arrive  at  a  correct  decision  whether  the  by-law  be  reasonable  or 
not,  regard  must  be  had  to  its  object  and  necessity.  Minute  regula- 
tions are  required  in  a  great  city,  which  would  be  absurd  in  the  country. 
The  cases  upon  this  subject  are  well  collected  by  Baron  Comyns  in  his 
Digest,  title  "  Bye-law."  It  has  been  found  to  be  reasonable  in  the  city 
of  London,  to  provide  that  brewers'  drays  should  not  be  in  the  streets 
there  after  eleven  o'clock  in  the  morning  in  summer,  and  one  iu  winter  ; 
that  no  person  should  unlade  coals  out  of  a  barge,  if  he  be  not  of  the 
porter's  company;  thus  in  some  manner  restraining  trade. 

There  have  been  regulations  also  adopted  in  that  cit}',  that  none 
shall  be  brokers  unless  licensed  and  sworn  ;  that  none  shall  be  hawkers 
without  license  ;  thus  in  some  measure  restraining  the  natural  rights 
of  the  subjects.  Now  it  is  contended  that  the  by-law  under  considera- 
tion is  in  restraint,  and  not  a  mere  regulation  of  the  trade  in  which  the 
defendant  is  engaged  ;  that  he  provides  as  good  and  tight  carts  as  the 
men  do  who  are  authorized  by  the  city,  in  the  performance  of  this 
labor.  We  do  not  perceive  that  there  is  any  more  reason  to  complain 
of  the  law  requiring  a  license  to  do  this  work,  than  of  the  law  prohibit- 
ing the  keeping  of  livery  stables  in  any  place  not  licensed.  One  might 
just  as  well  complain  of  the  regulation  which  prevents  him  from  being 
an  auctioneer  without  license  ;  and  so  of  various  other  trades  and  con- 
cerns which  it  is  found  necessary  to  subject  to  such  restriction. 

The  great  object  of  the  city  is  to  preserve  the  health  of  the  inhabi- 
tants. To  attain  that,  they  wisely  disregard  any  expense  whk-h  is 
deemed  to  be  requisite.  They  might  probably  have  these  offensive 
substances  carried  out  of  the  city  without  any  expense,  if  they  would 
permit  the  people  from  the  country  to  take  them  away  at  such  times 
and  in  such  manner  as  would  best  accommodate  them.  Every  one  will 
see  that  if  this  business  were  thus  managed,  there  would  be  continual 
moving  nuisances  at  all  times,  and  in  all  the  streets  of  the  city,  break- 
ing up  the  streets  by  their  weight  and  poisoning  the  air  with  their 
effluvia.  It  is  obvious,  that  the  object  and  interest  of  the  city,  and 
those  of  the  carmen,  in  this  concern,  are  extremely  different.  But  it  is 
contended  that  the  city  authorities  may  regulate  strangers  and.  un- 
licensed persons,  in  regard  to  the  number  of  horses  and  kind  of  carts 
to  be  employed,  just  as  well  as  they  can  carts  and  tlie  conduct  of  the 
licensed  persons.  It  seems  to  us,  however,  that  tlie  city  authority  has 
judged  well  in  this  matter.  They  prefer  to  employ  men  over  whom 
they  have  an  entire  control  by  night  and  by  day,  whose  services  may 
be  always  had,  and  who  will  be  able  from  habit  to  do  this  work  in  the 
best  possible  way  and  time.  Practically  we  think  the  main  object  of 
the  city  government  will  be  better  accomplished  by  the  arrangement 
they  have  adopted,  than  by  relying  upon  the  labor  of  others,  against 


SECT.  I.] 


UNITED    STATES   V.   WILTBERGER. 


31 


whom  the  government  would  have  no  other  remedy  than  by  a  suit  for  a 
breach  of  contract.  The  sources  of  contagion  and  disease  will  be 
speedily  removed  in  small  loads,  which  will  not  Injure  the  pavements, 
nor  annoy  the  inhabitants.  We  are  all  satisfied  that  the  law  is  reason- 
able, and  not  only  within  the  power  of  the  government  to  prescribe, 
but  well  adapted  to  preserve  the  health  of  the  city. 

The  direction  and  opinion  of  the  judge  of  the  Municipal  Court  was 
entirely  correct. 

n~ 

UNITED   STATP:S   v.  WILTBERGER. 

Supreme  Court  of  the  United  States.     1820. 

[Reported  5  Wkeaton,  76.] 

This  was  an  indictment  for  manslaughter,  in  the  Circuit  Court  of 
Pennsylvania.  The  jury  found  the  defendant  guilty  of  the  offence  with 
which  he  stood  indicted,  subject  to  the  opinion  of  the  court,  whether 
this  court  has  jurisdiction  of  the  case,  which  was  as  follows  : 
■  The  manslaughter  charged  in  the  indictment  was  committed  by  the 
defendant  on  board  of  the  American  ship  The  Benjamin  Rush,  on  a  sea- 
man belonging  to  the  said  ship,  whereof  the  defendant  was  master,  in 
the  river  Tigris,  in  the  empire  of  China,  off  Wampoa,  and  about  100 
yards  from  the  shore,  in  four  and  a  half  fathoms  water,  and  below  the 
low  water  mark,  thirty-five  miles  above  the  mouth  of  the  river.  The 
water  at  the  said  place  where  the  offence  was  committed  is  fresh, 
except  in  ver}-  dry  seasons,  and  the  tide  ebbs  and  flows  at  and  above 
the  said  place.  At  the. mouth  of  the  Tigris  the  government  of  Cliina 
has  forts  on  each  side  of  the  river,  where  custom-house  ofHcers  are 
taken  in  by  foreign  vessels  to  prevent  smuggling.  The  river  at  the 
mouth  and  at  Wampoa  is  about  half  a  mile  in  breadth. 

And  thereupon,  the  opinions  of  the  Judges  of  the  Circuit  Court 
being  opposed  as  to  the  jurisdiction  of  the  court,  the  question  was  bj'' 
them  stated,  and  directed  to  be  certified  to  this  court. ^ 

Marshall,  C.  J.  The  indictment  in  this  easels  founded  on  the  12th 
section  of  the  act,  entitled,  "  An  act  for  the  punishment  of  certain  crimes 
against  the  United  States."  Tliat  section  is  in  these  words:  "  And  be 
it  enacted,  that  if  any  seaman,  or  other  person,  shall  commit  man- 
slaughter on  the  high  seas,  or  confederate,"  etc.,  ''such  person  or 
persons  so  offending,  and  being  thereof  convicted,  shall  be  imprisoned 
not  exceeding  three  years,  and  fined  not  exceeding  one  thousand 
dollars." 

The  jurisdiction  of  the  court  depends  on  the  place  in  which  the  fact 
was  committed.  Manslaughter  is  not  punishable  in  the  courts  of  the 
United  States,  according  to  the  words  which  have  been  cited,  unless  it 
be  committed  on  the  high  seas.  Is  the  place  described  in  the  special 
verdict  a  part  of  the  high  seas? 

1  Arguments  of  counsel  and  part  of  the  opinion  are  omitted.  — En. 


ri' 


\ 


/^ 


? 


32 


UNITED    STATES    V.    WILTBERGER, 


[chap.  I. 


S^ 


c/ 


If  the  words  bo  taken  according  to  the  common  understanding  of 
mankind,  if  tlie}'  be  taken  in  their  popular  and  received  sense,  the 
'•  liigh  seas,"  if  not  in  all  instances  confined  to  the  ocean  which  washes 
a  coast,  can  never  extend  to  a  river  abont  half  a  mile  wide,  and  in  the 
interior  of  a  countr}-.  This  extended  construction  of  the  words,  it  has 
been  insisted,  is  still  farther  opposed  by  a  comparison  of  the  12th  with 
the  8th  section  of  the  act.  In  the  8th  section,  Congress  has  shown 
its  attention  to  the  distinction  between  the  "  high  seas,"  and  "  a  river, 
haven,  basin,  or  bay."  The  well-known  rule  that  this  is  a  penal  statute, 
and  is  to  be  construed  strictly,  is  also  urged  upon  us. 

On  the  part  of  the  United  States,  the  jurisdiction  of  the  court  is  sus- 
tained, not  so  much  on  the  extension  of  the  words  ■■'  high  seas,"  as  on 
that  construction  of  the  whole  act,  which  would  engraft  the  words  of  the 
8th  section,  descriptive  of  the  place  in  which  murder  may  be  committed, 
on  the  12th  section,  which  describes  the  place  in  which  manslaughter 
may  be  committed.  This  transfer  of  the  words  of  one  section  to  the 
other,  is,  it  has  been  contended,  in  pursuance  of  the  obvious  intent  of 
the  legislature;  and  in  support  of  the  authority  of  the  court  so  to  do, 
certain  maxims  or  rules  for  the  construction  of  statutes  have  been 
quoted  and  relied  on.  It  has  been  said,  that  although  penal  laws  are 
to  be  construed  strictly,  the  intention  of  the  legislature  must  govern  in 
their  construction.  That  if  a  case  be  within  the  intention,  it  must  be 
considered  as  if  within  the  letter  of  the  statute.  So  if  it  be  within  the 
reason  of  the  statute. 

Tlie  rule  that  penal  laws  are  to  be  construed  strictly,  is  perhaps  not 
much  less  old  than  construction  itself.  It  is  founded  on  the  tenderness 
of  the  law  for  the  rights  of  individuals  ;  and  on  the  plain  principle  that 
the  power  of  punishment  is  vested  in  the  legislative,  not  in  the  judicial 
department.  It  is  the  legislature,  not  the  court,  which  is  to  define  a 
crime,  and  ordain  its  punishment. 

It  is  said,  that  notwithstanding  this  rule,  the  intention  of  the  law- 
maker must  govern  in  the  construction  of  penal,  as  well  as  other 
statutes.  This  is  true.  But  this  is  not  a  new  independent  rule  which 
subverts  the  old.  It  is  a  modification  of  the  ancient  maxim,  and 
amounts  to  this,  that  though  penal  laws  are  to  be  construed  strictly, 
they  are  not  to  be  construed  so  strictly  as  to  defeat  the  obvious  inten- 
tion of  the  legislature.  Tlie  maxim  is  not  to  be  so  applied  as  to  narrow 
the  words  of  the  statute  to  the  exclusion  of  cases  which  those  words, 
in  their  ordinary  acceptation,  or  in  that  sense  in  which  the  legislature 
has  obviously  used  them,  would  comprehend.  The  intention  of  the  legis- 
lature is  to  be  collected  from  the  words  they  employ.  Where  there  is 
no  ambiguity  in  the  words,  there  is  no  room  for  construction.  The 
case  must  be  a  strong  one  indeed  which  would  justify  a  court  in  depart- 
ing from  the  plain  meaning  of  words,  especially  in  a  penal  act,  in  search 
of  an  intention  which  the  words  themselves  did  not  suggest.  To  deter- 
mine that  a  case  is  within  the  intention  of  a  statute,  its  language  must 
authorize  us  to  say  so.     It  would  be  dangerous  indeed  to  carry  the 


y 


-SKCT.    I.] 


C-<wv\/vv^-<Pv^    ^icLxAT    Cx.>->-^  "lXn^s^    C\_CL-Ar    C^^   ^  ^  '^  O    ^«--^  - 


COM.MONWEALTH   f.   MARSHALL. 


33 


if 


principle,  that  a  case  which  is  within  the  reason  or  mischief  of  a  stat- 
ute, is  within  its  provisions,  so  far  as  to  punish  a  crime  not  enumerated 
'in  the  statute,  because  it  is  of  equal  atrocity  or  of  kindred  character 
.with  those  which  are  enumerated.  If  this  principle  has  ever  been 
recognized  in  expounding  criminal  law,  it  has  been  in  cases  of  con- 
siderable irritation,  which  it  would  be  unsafe  to  consider  as  precedents 
forming  a  general  rule  for  other  cases. 

After  giving  the  subject  an  attentive  consideration,  we  are  unani- 
mously of  opinion  that  the  offence  charged  in  this  indictment  is  not 
[cognizable  in  the  courts  of  the  United  States;  which  opinion  is  to  be 
certified  to  the  Circuit  Court  for  the  district  of  Pennsvlvania. 


I  ^ 
COMMONWEALTH   v.   MARSHALL. 
Supreme  Judicial  Court  of  Massachusetts.     1831. 

[Reported  11  Pick.  350.] 

•/     Ax  April  term  1831  of  this  Court,  in  the  county  of  Franklin,  the 
'   T  defendants  were  indicted  for  a  misdemeanor  in  disinterring  a  dead  body 
'-<  on  the  20th  of  February  of  the  same  year,  contra  formani  statuti.    The 
i  defendants  pleaded  nolo  contendere,  and  afterwards  moved  in  arrest  of 
'       judgment,  for  the  following  reasons  :   1.  Because  the  oftence  charged  in 
■  <J   ^  the  indictment  is  therein  stated  to  have  been  committed  in  violation  of 
^  n  the  statute  passed  March  2,  1815  (St.  1814,  c.  175),  which  was  re- 
'     pealed  by  the  statute  of  Feb.  28,  1831  (St.  1830,  c.  57),  without  any 
A.  saving  or  excepting  clause  whatever ;  and,  2.  Because  no  offence  now 
^  known  b}'  the  laws  of  this  commonwealth,  is  therein  described. 
J      H.  Hubbard  and  J.    W.   Clarke,  in  support  of  the   motion,  cited 
"j  Commonwealth  v.  Northampton,  2  Mass.  R.  116;   Commonwealth  v. 
^  Cooley,  10  Pick.  37  ;  Miller's  case,  1  W.  Bl.  451  ;  6  Dane's  Abr.  591, 
616;    United   States  v.  Passmore,  4   Dallas,   373;    Commonwealth  v. 
Duane,   1  Binn.   601  ;  1   Hawk.  P.  C.  c.  40,  §  6  ;  Hatfield  Township 
Road,  4   Yeates,  492  ;    1  Kent's  Com.  435  ;    Rex  v.  Morgan,  2   Str. 
)1066;   Bac.  Abr.  Statute,  D ;  Commonwealth  v.  Macomber,  3  Mass. 
.R.  254. 

3     Davis  (Solicitor-General)  and   R.   E.  Neincomh,  for  the  common- 
^wealth,  cited  3    Stark.  Ev.  1129;    Bac.  Abr.   Statute,  X>,  cites  Jenk. 
'^233,  pi.  6  ;  Melody  v.  Reab,  4  Mass.  R.  471 ;  Gibson  v.  Jenne}',  15 
A   bMass.  R.  205  ;  7  Mass.  R.  524. 

rj    <     Shaw,  C.  J.,  delivered  the  opinion  of  the  Court.     This  indictment 
(cannot  be  maintained,  consistently  with  the  decision  of  the  Court  last 


J 


^. 


> 


d 


I 


i 


i 


A   ' 


^ 


rt 


COMMONWEALTH   V.    CHURCHILL. 


[chap.  L 


year,  in  the  case  in  this  count}-,  of  Commonwealth  v.  Coole}',  10  Pick. 
37.     In  that  case  it  was  held,  that  the  statute  of  1814,  containing  a 
series  of  provisions  in  relation  to  the  whole  subject-matter  of  the  dis-     i 
interment  of  dead  bodies,  had  superseded  and  by  necessary  implica-cK' , 
tion  repealed  the  provisions  of  the  common  law  on  the  same  subject.     ^ 
If  it  be  true,  as  contended,  that  as  a  general  rule  the  repeal  of  a  re-     •** 
pealing  law,  revives  the  pre-existing  law,  it  would  be  difficult  to  main- 
tain that  such  a  clause  of  repeal,  in  a  statute  containing  a  series  of 
provisions,   revising  the  whole  subject,  and   superseding  the  existing 
statute,  would  revive  the  pre-existing  provisions  of  the  common  law. 
But  were  that  point  conceded,  as  contended  for,  it  would  not  aid  this 
indictment. 

In  the  case  supi)Osed,  the  common  law  would  not  be  in  force  during 
the  existence  of  the  statute,  and  if  revived  by  its  repeal,  such  revival 
would  take  effect  only  from  the  time  of  such  repeal. 

It  is  clear,  that  there-can  be  no  legal  conviction  for  an  offence,  unless 
the  act  be  contrary  to  law  at  tlie  time  it  is  committed  ;  nor  can  there 
be  a  judgment,  unless  the  law  is  in  force  at  Lhe  time  of  the  indictment 
and  judgment.  If  the  law  ceases  to  operate,  by  its  own  limitation  or  by 
a  repeal,  at  any  time  before  judgment,  no  judgment  can  be  given. 
Hence,  it  is  usual  in  every  repealing  law  to  make  it  operate  prospec- 
tively only,  and  to  insert  a  saving  clause,  preventing  the  operation  of 
the  repeal,  and  continuing  the  repealed  law  in  force,  as  to  all  pending 
prosecutions,  and  often  as  to  all  violations  of  the  existing  law  already 
committed. 

These  principles  settle  the  present  case.  By  the  statute  1830,  c.  57, 
§  6,  that  of  1814  was  repealed  without  any  saving  clause.  The  act 
charged  upon  the  defendants  as  an  offence  was  done  after  the  pi\ssing 
of  the  statute  of  1814,  and  before  that  of  1830.  The  act  cannot  be 
punished  as  an  offence  at  common  law,  for  that  was  not  in  force  during 
tlie  existence  of  the  statute  ;  nor  by  the  statute  of  1814,  because  it  has 
been  repealed  without  any  saving  clause  ;  nor  by  the  statute  of  1830, 
for  the  act  was  done  before  that  statute  was  passed.  No  judgment 
therefore  can  be  rendered  against  the  defendants,  on  this  indictment. 

Judgment  arrested.C 


i 


/3. 

COMMONWEALTH   v.   CHURCHILL. 

Supreme  Judicial  Court  of  Massachusetts.     1840. 

{Reported  2  Met.  118.] 

At  the  last  September  term  of  the  Court  of  Common  Pleas,  the  de- 
fendant was  convicted  on  four  counts  in  an  indictment,  the  first  of 
which  alleged  that  he,  "  at  Stoughton  in  said  County  of  Norfolk,  on  the 


SECT.    I.]  COMMONWEALTH    V.    CHURCHILL.  35   '^'"~**-fC_fl.<v  C 

IGth  day  of  March  last  past,  did  sell  to  one one  glass  of  brandy  ^-^  ^^ 

to  be  by  him,  the  said ,  then  and  there  used,  consumed,  and  drank 

in  the  dwellingrhouse  there  situate  of  him  the  said  Samuel,  he  the  said 
Samuel  not  being  then  and  there  duly  licensed,  according  to  law,  to  be 
an  innholder  or  common  victualler;  against  the  peace,  etc.,  and  con- (pXL^^^ 
trary  to  the  statute  in  such  case  made  and  provided."     There  were  five  ^^  ka 

other  counts  similar  to  the  first,  except  that  different  kinds  of  spirituous  ^^-CL-(^  v      ^ 
liquor  were  alleged  to  have  been  sold  to  five  different  persons  on  sev-  ^ 

eral  different  days,  to -wit,  on  the  17th,  18th,  19th,  20th,  and  21st  of 
March,  1840.     On  two  of  the  counts  the  defendant  was  acquitted. 

The  defendant  filed  exceptions  to  the  ruling  of  Strong,  J.,  before  o  ~^ 
wliom  the  trial  was  had:  "  1.  Because  the  court  instructed  the  jury  ^<Ao|.k^ 
that  the  2d  and  3d  sections  of  c.  47  of  the  Revised  Statutes,  on  which 
the  indictment  is  founded,  are  binding  and  valid,  when  the  defendant 
contends  that  they  are  unconstitutional  and  void.  2.  Because  the 
court  instructed  the  jury  that  those  sections  were  still  in  force  as  law, 
when  the  defendant  contends  that  they  are  repealed  by  subsequent 
legislative  enactments."  ^ 

Shaw,  C.  J.     It  appears  by  the  record  that  the  defendant  was  in- 
dicted for  selling  spirituous  liquors  without  license,  on  the  IGth  day  of  -^         -  /j<^ 
March  last,  and  at  several  times  afterwards,  and  that  upon  a  trial  of  ^Sf^^^    v 
the  indictment,  in  the  Court  of  Common  Pleas,  he  was  convicted.     Two  ^h!  H  ?j;^ 

exceptions  were  taken  to  the  directions  and  opinion  of  that  court  in  yQ_^     ^-v^  ^      ^ 
matter  of  law,  upon  which  the  case  has  been  brought  before  this  court,    ^^"Vj    ^^         ^, 


pursuant  to  the  statute.     These  exceptions  were  as  follows:   1.  ThatKi>/N    J^  ^>a 

upon  which  this  prosecution  is  founded,  are  unconstitutional  and  void.    ^-^^  VAbt .  */^^^ 


the  2d  and  3d  sections  of  the  47th  chapter  of  the  Revised  Statutes, 

2.  Because  the  court  instructed  the  jury  that  these  sections  were  in  £^]h^       ^^^Oxji« 
force  as  law,  at  the  time  when  the  acts  charged  as  offences  were  alleged  J»^^  "^^i       ^"^ 
to  be  done  ;  whereas  the  defendant  contended  that  the}'  were  repealed    ''Vcjv,-^         *  K/ « 

been  offered,  and  it  does  not  seem  to  be  insisted  on.     The  second  de 


by  a  subsequent  act  of  the  legislature.     Upon  the  first  no  argument  has  L^^fi    ^^   ^""^o^ 
pends  upon  the  question  whether  the  statute  of  1840,  c.  1,  passed  on'*^-C^~<s^  ^"^^  ^--, 


the  11th  of  February,  1840,  and  which  went  into  operation  in  thirty   Uj^  ^/   M>^  q^ 
days  from  its  passage,  to  wit,  13th  March,  1840,  simply  repealing  the    ^         ^"^^lu.  ^""^ 
statute  of  1838,  c.   157,  did,  by  its  legal  operation,  revive  the  2d  and   "-^-vT  ^x^^^'^V^ 
3d  sections  of  the  47th  chapter  of  the  Revised  Statutes.     If  it  did,  the  ^"'*^^*T'tj 

case  of  the  defendant  was  within  them,  the  acts  all  being  charged  to  ^^    ^A>(v         ^^ 
have  been   done  after  the  13th  of  March  last,  and  the  acts  themselvesd^^.^         ^  ^V^ 
being  made  punishable  by  those  provisions  of  the  Revised  Statutes.  ^^"^^jC.  ^^-Ci/yT^ 

It  is  conceded  to  be  a  maxim  of  the  common  law,  applicable  to  the  iN^f  g^  ^*\"" 

construction  of  statutes,  that  the  simple  repeal  of  a  repealing  law,  not   >^  (f^"^~AJP 

when  the  Constitution  of  the  Commonwealth  was  adopted.     Bv  that      "^-^^  IT    V         ^ 


substituting  other  provisions  in  place  of  those  repealed,  revives  the  ^^  <il  t? 

pre-existing  law.     As  a  maxim  of  the  common  law,  it  was  in  force  here  7I  ^^*^*lJL  Co^ 


1  The  artjuments  of  counsel  and  part  of  the  opinion  are  omitted  Qi.y\      ' 


J-^^^-JLiU. 


36  COMMONWEALTH    V.    CHURCHILL.  [CHAP.  L 

Constitution  it  was  declared  that  "  all  the  laws,  which  have  heretofore 
been  adopted,  used,  and  approved  in  the  colony,  province,  or  State  of 
Massachusetts  Bay,  and  usually  practised  on  in  the  courts  of  law,  shall 
still  remain  and  be  in  full  force,  until  altered  or  repealed  by  the  legis- 
lature ;  such  parts  only  excepted  as  are  repugnant  to  the  rights  and 
liberties  contained  in  this  Constitution."  This  Constitution  lias  been 
construed  as  adopting  the  great  body  of  the  common  law,  with  those 
statutes  made  before  the  emigration  of  our  ancestors,  which  were  made 
in  amendment  of  the  common  law,  so  far  as  these  rules  and  principles 
were  applicable  to  our  condition  and  form  of  government.  Common- 
wealth V.  Leach,  1  Mass.  59.  Commonwealth  v.  Knowlton,  2  Mass. 
534. 

But  it  was  contended,  at  the  argument,  that  under  this  provision  no 
principle  or  rule  of  the  common  law  could  be  regarded  as  adopted,  un- 
less it  could  be  shown  affirmatively  that  it  iiad  been  adjudicated  before 
the  Revolution.  But  we  apprehend  this  would  be  much  too  narrow  a 
construction.  Before  the  Revolution,  we  had  no  regular  reports  of 
judicial  decisions  ;  and  the  most  familiar  rules  and  principles  of  law  — 
those  which  lie  at  the  foundation  of  our  civil  and  social  rights  —  cuuld 
not  be  so  proved.  No;  we  rely  on  usage  and  tradition,  and  the  well 
known  repositories  of  legal  learning,  works  of  approved  authority',  to 
learn  what  are  the  rules  of  the  common  law  ;  and  we  have  no  doubt 
that  these  were  the  great  sources  to  which  the  above  pregnant  provision 
of  our  Constitution  refers. 

Taking  it,  then,  as  well  established  that  the  rules  and  maxims  of  tlie 
common  law  referred  to  in  the  Constitution  were  those  which  our  an- 
cestors brought  with  them,  and  which  had  been,  to  some  extent,  piodi- 
fied  and  adapted  to  our  condition  b}' the  legislative  jurisprudence  of  the 
colonial  and  provincial  governments,  it  follows  that  these  rules  and 
principles  were  regarded  as  binding  both  upon  legislators  and  judges 
in  their  respective  departments.  A  part  of  this  system  are  the  well 
known  rules  of  construction  for  the  expounding  of  statutes,  which  are 
as  much  a  part  of  every  statute  as  its  text.  These  are  i)resumed  to  be 
known  and  kept  in  view  In*  the  legislature  in  framing  the  statute  ;  and 
they  must  be  alike  regarded  b}-  judges  in  expounding  it. 

It  was  further  insisted  in  the  argument  that  the  legislature  could 
not  have  intended,  when  thej'  repealed  one  license  law,  in  effect  to  re- 
establish another.  But  their  intentions  must  be  ascertained  b}-  their 
acts  alone,  and  not  by  evidence  alhinde.  We  cannot  possibly  know 
the  intentions  of  members  of  the  legislature.  It  is  the  will  of  the  aggre- 
gate bod}'  as  expressed  in  the  statutes  which  they  pass,  which  can  be 
regarded  as  having  the  force  of  law ;  an}'  different  construction  would 
lead  to  the  greatest  confusion  and  uncertainty.  The  legislature  are 
presumed  to  understand  and  intend  all  consequences  of  their  own 
measures ;  and  the  only  safe  course  is  for  courts  of  justice  to  expound 
the  intentions  of  the  legislature  by  their  acts,  and  those  acts  construed 
by  known  and  established  rules  of  construction. 


SECT.  I.]  HALFIN    V.    STATE.  37 

On  the  whole,  the  Court  are  of  opinion  that  the  simple  repeal  of  St. 
1838,  c.  157,  by  that  of  1840,  c.  1,  did  revive  the  2d  and  3d  sections  of 
the  Rev.  Stats,  c.  47,  and  that  the  provisions  of  those  sections  were  in 
force  at  the  time  of  the  otfences  charged  in  the  indictment,  and  that 
the  conviction  was  right. 

Excejitions  overruled. 


■'V. 

HALFIN  V.  STATE. 

Court  of  Appeals  of  Texas.     1878. 

[Reported  5  Tex.  App.  212.] 

Winkler,  J.  Tlie  appellant  is  prosecuted  by  information  in  the 
County  Court,  and  was  convicted  on  a  charge  of  having  violated  the 
provisions  of  the  act  of  the  legislature  of  1876,  entitled  "An  act  to 
proliibit  the  sale,  exchange,  or  gift  of  intoxicating  liquors  in  any 
county,  justice's  precinct,  city,  or  town  in  this  state  that  may  so  elect ;" 
prescribing  the  mode  of  election,  and  affixing  a  punishment  for  its 
violation,  —  commonly  known  as  the  local-option  law.  Acts  1876, 
p.  26. 

It  is  not  disputed  that,  prior  to  the  alleged  commission  of  the  offence 
charged  against  the  appellant,  Caldwell  County  had,  by  vote  in  accord- 
ance with  the  provisions  of  the  act,  declared  that  liquors  should  not 
be  sold  in  the  county  except  as  authorized  by  the  act  aforesaid.  But 
it  is  insisted  on  in  behalf  of  the  appellant  that,  since  this  prosecution 
was  commenced,  another  election  has  been  held  in  the  county  under  the 
provisions  of  the  act  in  question,  by  which  it  was  determined  that  the 
act  should  no  longer  be  enforced  so  as  to  prohibit  the  sale  of  liquors  in 
the  county  ;  and  that  the  effect  of  this  last  election  is  to  relieve  from 
prosecution  and  punishment  those  who  had,  prior  thereto,  been  accused 
of  violating  its  provisions. 

It  is  provided,  in  the  third  section  of  the  act,  for  the  holding  of  a 
special  session  of  the  Commissioners'  Court,  for  the  purpose  of  open- 
ing the  polls  and  counting  the  votes,  and  directing  that  "  if  a  majority 
of  the  votes  cast  are  for  prohibition,  said  court  shall  immediately  make 
an  order  declaring  the  result  of  said  vote,  and  absolutely  prohibiting 
the  sale  of  intoxicating  liquors  within  the  prescribed  bounds  (except 
for  the  purposes  specified  in  section  1  of  this  act)  until  such  time  as 
the  qualified  voters  therein  may,  at  a  legal  election  held  for  the  pur[)Ose, 
by  a  majority  vote  decide  otherwise."  The  section  goes  on  to  prescribe 
the  manner  of  making  publication  of  the  result  and  tlie  order  of 
prohibition. 

We  are  of  opinion  that  the  words  in  the  third  section,  "until  such 
time  as  the  qualified  voters  therein  mav,  at  a  legal  election  held  for  tlie 


38   ,  STEVENS  V.    DIMOND.  [CHAP.  I. 

purpose,  b}-  a  raajoritj'  vote  decide  otherwise,"  must  be  construed  as 
an  authority  giving  the  voters  interested  an  opportunity  to  decide  — 
after  the  expiration  of  twelve  months,  mentioned  in  the  fourth  section 
—  by  vote  whether  the  prohibition  named  in  the  first  section  shall  be 
longer  continued  or  not,  and  that  a  majority  vote  at  this  second  elec- 
tion would  annul,  from  the  time  it  is  held  and  the  result  declared  and 
publislicd,  the  prohibition  provided  for  in  the  first  section  of  the  act. 

It  being  made  to  appear  that  the  second  election  contemplated  in 
the  act  has  been  held,  and  that  it  has  resulted  in  a  majority  vole 
against  prohibition,  we  are  of  opinion  that  there  is  no  law  now  in  force 
in  Caldwell  County  by  which  persons  who  may  be  charged  under  the 
act  can  lawfully  be  punished. 

"  The  repeal  of  a  penal  law,  when  the  repealing  statute  substitutes 
no  other  penalt}-,  will  be  held  to  exempt  from  punishment  all  persons 
who  have  offended  against  the  provisions  of  said  repealed  law,  unless 
it  be  declared  otherwise  in  the  repealing  statute."  Penal  Code,  art.  15 
(Pose.  Dig.,  arts.  16,  17) ;  Montgomery  v.  The  State,  2  Texas,  Ct.  App. 
618. 

There  being  no  law  now  in  force  in  Caldwell  County  to  punish  oflfen- 
ders  against  the  local-option  law,  since  its  annulment  by  the  second 
vote  of  the  county  against  prohibition,  the  judgment  will  be  reversed 
and  this  prosecution  will  be  dismissed.  Meversed  and  dismissed. 


I  ^ 
STEVENS  V.  DIMOND. 

Superior  Court  of  Judicature,  New  Hampshire.      1833. 

{Reported  G  N.  H.  330.] 

This  was  a  writ  of  error  brought  to  reverse  a  judgment  of  the  court 
of  common  pleas  in  this  county. 

It  appeared  by  the  record,  that  Stevens  brought  an  action  of  debt 
against  Dimond  upon  the  statute  of  June  17,  1811,  entitled  "  an  act  to 
authorize  towns  to  make  by-laws  to  prevent  horses,  etc.,  from  going  at 
large,"  and  upon  a  by-law  made  by  the  town  of  Hawke,  on  the  9th 
March,  1830,  "that  if  an}^  horse,  horse  kind,  etc.,  shall  be  found  going 
at  large  from  and  after  the  first  day  of  April  until  the  last  day  of 
October,  in  any  street,  highway,  or  common  in  said  town,  the  owner 
thereof  shall,  for  each  and  every  offence  forfeit  and  paj'  the  sum  of 
four  dollars,  with  costs  of  suit,  to  any  person  who  may  sue  for  the 
same,  to  be  recovered  in  an  action  of  debt,  etc.,  unless  such  horse, 
etc.,  shall  be  going  at  large  without  the  knowledge  or  negligence  of  the 
owner  or   owners." 

It  was  alleged  in  the  declaration  that  Dimond,  on  the  11th  Ma}^ 
1830,  at  Hawke,  let  one  mare  and  one  colt,  he  being  the  owner  thereof, 
go  at  large  in  a  certain  highwa}'  in  said  Hawke,  with  his  own  knowl- 
edge and  consent,  contrary  to  the  form  and  effect  of  the  law  aforesaid. 


SECT.  I.]  "  STEVENS   V.   DIMOND.  39 

The  defendant  pleaded  that  he  did  not  owe  in  manner  and  form  as 
alleged,  and  the  cause  was  tried  in  the  common  pleas,  at  October  term, 
1831,  when  the  plaintiff  proved  the  making  of  the  bj'-law,  and  that  the 
mare  and  colt  of  the  defendant  were,  on  the  11  May,  1830,  at  large, 
with  his  consent,  in  a  highway  in  Hawke  ;  but  the  court  directed  the 
jury  that  the  said  by-law  being  in  force  for  a  year  only,  from  the  time 
of  making  thereof,  and  having  expired  by  its  own  limitation,  the 
plaintiff  could  not  sustain  his  action.  The  jury  having  returned  a  ver- 
dict for  tlie  defendant,  a  bill  of  exceptions  to  the  directions  of  the  court 
to  the  jury  was  filed  and  allowed,  and  this  writ  of  error  brought. 

Richardson,  C.  J.,  delivered  the  opinion  of  the  court. 

The  action,  the  judgment  in  which  is  now  before  us,  was  founded  as 
well  upon  the  statute  which  authorized  towns  to  make  by-laws,  as  upon 
the  by-law,  and  it  was  necessary  to  allege  in  the  declaration,  that  the 
offence  was  committed  as  well  against  the  form  of  the  statute,  as  against 
the  form  of  the  by-law.  1  Chitty's  PI.  358  ;  3  Pickering,  462,  Com- 
monwealth V.  Worcester ;  5  ditto,  44,  Commonwealth  v.  Gay. 

The  statute,  on  which  that  action  was  founded,  still  remains  in  force; 
and  the  by-law  has  never  been  repealed  by  the  town. 

But  the  court  below  were  of  opinion  that  the  by-law  expired  with  the 
year  by  its  own  limitation,  and  ceased  to  be  in  force.  And  if  this  be 
correct,  it  is  clear  that  the  verdict  was  right ;  for  after  a  law  ceases  to 
be  in  force  no  penalty  can  be  enforced,  nor  punishment  inflicted  for 
violations  of  the  law  while  it  was  in  force. 

The  question,  then,  is,  did  the  by-law  in  this  case  cease  to  be  in  force 
after  the  year,  so  that  no  action  for  a  penalty  incurred  under  it  can  now 
be  maintained? 

There  is  nothing  in  the  by-law  itself  which,  in  express  terms,  declares 
it  shall  not  be  in  force  after  the  year.  When  the  period  it  was  intended 
to  regulate  expired,  it,  without  doubt,  ceased  to  be  a  rule  to  regulate 
what  was  done  afterwards.  But  did  it  cease  to  be  the  law  of  that 
period  ? 

In  many  cases  statutes  that  are  repealed,  or  that  cease  to  be  in  force 
by  their  own  limitation,  continue  to  be  the  law  of  the  period  when  thoy 
were  in  force.  It  is,  however,  settled,  that  this  is  not  the  case  with 
laws  inflicting  penalties.  When  these  expire  by  their  own  limitation, 
or  are  repealed,  they  cease  to  be  the  law  in  relation  to  the  past  as  well 
as  the  future,  and  can  no  longer  be  enforced  in  any  case.  No  case  is, 
however,  to  be  found  in  which  it  was  ever  held  before  that  they  thus 
ceased  to  be  law,  unless  they  expired  by  express  limitation  in  them- 
selves, or  were  repealed.  It  has  never  been  decided  that  they  cease  to 
be  law  merely  because  the  time  they  were  intended  to  regulate  had  ex- 
pired. Many  laws  have  been  passed  which  were  limited  in  their  opera- 
tion to  particular  seasons  of  the  year.  This  was  the  case  witli  the 
statutes  which  regulated  the  hunting  of  deer,  and  tlie  taking  of  fish  in 
rivers  and  ponds.  But  it  is  imagined  that  no  one  ever  supposed  that 
those  laws  expired  by  their  own  limitations  every  time  the  season  they 


40  REX    V.    BKOWN.  [chap.  I. 

were  intended  to  regulate  expired,  and  revived  again  with  the  return 
of  tlie  season.  The  same  is  the  case  with  the  statutes  regulating  the 
observance  of  the  sabbath.  The  statutes  apply  only  to  one  day  in  the 
week.  But  we  imagine  no  person  will  contend  that  they  remain  in  force 
only  during  Sunday. 

So  we  have  a  statute  which  prohibits  the  publication  of  the  revised 
laws  within  the  period  of  ten  years  from  a  certain  time  under  a  penalty. 
It  seems  to  us  that  no  one  would  seriously  suppose  that  a  penalty  in- 
curred under  that  statute  could  not  be  enforced  after  the  expiration  of 
the  ten  years. 

A  very  little  consideration  of  the  subject  will  convince  any  one  that 
a  limitation  of  the  time  to  which  a  statute  is  to  apply,  is  a  very  diflferent 
thing  from  the  limitation  of  the  time  a  statute  is  to  continue  in  force. 

We  are,  therefore,  of  opinion,  that  the  instructions  given  to  the  jury 
by  the  court  below  were  incorrect,  and  that  the  judgment  must  be  re- 
versed. 


SECTION   II. 

Nature  of  Crime. 

REX   V.   STONEHOUSE. 
King's  Bench.    1696. 

[Reported  Z  Salk.  188.] 

Indictmext  against  Elizabeth  Stonehouse,  for  that  she,  intending  to 
deprive  Henry  Bradshaw  of  several  sums  of  money,  did  falsely  and 
maliciously  accuse  him  of  felony  and  of  robbing  her. 

This  indictment  was  adjudged  ill,  because  it  was  for  a  fact  not 
indictable,  it  not  being  laid  by  way  of  conspiracy,  so  as  to  make  it 
a  public  crime ;  and  it  being  only  a  private  wrong  the  party  hath  his 
remedy  by  action  on  the  case. 


17. 

,     '  REX   V.    BROWN. 

King's   Bench.     1696. 

[Reported  Z  Salk.  l^^.l 

TuE  justices  made  an  order,  that  the  defendant  should  pay  Stephen 
Paine,  a  tavlor,  11.  for  work  done  ;  which  he  (the  defendant)  refusing 
to  do,  was  indicted. 

But  it  was  quashed,  for  't  is  a  matter  not  indictable. 


SECT.  II.]  KEGINA   V.    JONES.  41 

)^ 

REX  V.   BRADFORD. 

King's   Bench.     1698. 
[Reported  3  Salh.  189.J 

The  defendant  was  indicted  for  not  curing  the  prosecutor  of  an 
ulcerated  throat,  as  he  had  agreed  and  undertalien  to  do. 

Quashed,  for  't  is  no  public  offence,  and  no  more  iu  effect  than  an 
action  on  the  case. 


J  ^  . 

rp:x  v.  pigot.  ■ 

KixXg's  Bench.     1701. 
[Reported  12  Mod.  516] 

He  was  convicted  upon  an  indictment  for  misdemeanor  in  attempt- 
ing forcibly  to  carry  away  one  Mrs.  Hescot,  a  woman  of  great  fortune. 

Lord  Holt,  C.  J.  Sure  this  concerns  all  the  people  in  England  that 
would  dispose  of  their  children  well. 

And  he  was  fined  two  hundred  marks,  and  the  lady's  maid,  who  was 
privy  to  the  contrivance,  was  fined  twenty  marks,  and  to  go  to  all  the 
coui't-6  with  a  paper  upon  her,  with  her  offence  writ  in  large  characters. 


REGINA  V.  JONES. 
Queen's  Bench.  1704. 
[Reported  2  Ld.  Raym.  1013.] 

Mr.  Parker  moved  to  quash  an  indictment.  It  is,  that  the  defend- 
ant came  to  J.  D.  and  pretended  to  be  sent  to  him  by  F.  S.  to  receive 
20^.  for  his  use ;  whereas  F.  S.  did  not  send  him.  This  is  no  crime, 
and  he  has  remedy  by  action. 

Lord  Holt,  C.  J.  It  is  no  crime  unless  he  came  with  false  tokens. 
Shall  we  indict  one  man  for  making  a  fool  of  another?  Let  him  bring 
his  action. 

Powell,  J.,  agreed.  Quash  it  nisi. 


42  ATCHESON   V.   EVERITT.  [CHAP.  I. 

ATCHESON  V.    EVERITT. 
King's  Bench.     1776. 
[Reported  1  Cowp.  382.] 

This  was  an  action  of  debt  upon  the  stat.  2  Geo.  2,  c.  24,  sect.  7, 
against  bribery.     Plea,  Not  guilty.     Verdict  for  the  plaintiff. 

On  behalf  of  the  defendant,  it  was  moved  last  terra,  that  there  might 
be  a  new  trial ;  because  a  Quaker  had  been  received  as  a  witness  on 
his  affirmation  ;  and  it  was  objected,  that  this  being  a  criminal  cause, 
his  evidence  ought  not  to  have  been  received.^ 

Lord  Mansfield,  C.  J.  ...  We  come  then  to  this  question  :  Is  the 
present  a  criminal  cause?  A  Quaker  appears,  and  offers  himself  as 
a  witness  ;  can  he  give  evidence  without  being  sworn?  If  it  is  a  crimi- 
nal case,  he  must  be  sworn,  or  he  cannot  give  evidence. 

Now  there  is  no  distinction  better  known  than  the  distinction 
between  civil  and  criminal  law  ;  or  between  criminal  prosecutions  and 
civil  actions. 

Mr.  Justice  Blackstone,  and  all  modern  and  ancient  writers  upon 
the  subject  distinguish  between  them.  Penal  actions  were  never  yet 
put  under  the  head  of  criminal  law,  or  crimes.  The  construction  of  the 
statute  must  be  extended  by  equit}'  to  make  this  a  criminal  cause.  It 
is  as  much  a  civil  action,  as  an  action  for  money  had  and  received. 
The  legislature,  when  thej-  excepted  to  the  evidence  of  Quakers  in 
criminal  causes,  must  be  understood  to  mean  causes  technicall}'  crimi- 
nal ;  and  a  different  construction  would  not  only  be  injurious  to 
Quakers,  but  prejudicial  to  the  rest  of  the  King's  subjects  who  may  want 
their  testimony.  The  case  mentioned  by  Mr.  Rooke  of  Sir  Watkyn 
Williams  Wynne  v.  Middleton,  Vide  1  Wils.  125.  2  Str.  1227,  is  a 
very  full  authoiity,  and  alone  sufficient  to  warrant  the  distinction 
between  civil  and  criminal  proceedings.  In  that  case  the  question  was, 
Whether  the  stat.  7  &  8  Wm.  3,  c.  7,  was  penal  or  remedial?  The 
court  held  it  was  not  a  penal  statute.  But  "  supposing  it  was  to  be 
considered  as  a  penal  statute,  yet  it  was  also  a  remedial  law  ;  and 
therefore  the  objection  taken  was  cured  b}'  stat.  16  &  17  Car.  2,  c.  8." 
Now  the  words  of  exception  in  that  statute,  and  also  in  stat.  32  Hen. 
8,  c.  30,  and  in  stat.  18  Eliz.  c.  14,  are  "penal  actions  and  criminal 
proceedings."  But  Lord  Chief  Justice  Willes,  in  delivering  the  solemn 
judgment  of  the  court,  says,  there  is  another  act  which  would  decide  of 
itself,  if  considered  in  tlie  light  of  a  new  law,  or  as  an  interpretation  of 
what  was  meant  by  penal  actions  in  the  stat.  16  &  17  Car  2,  c.  8. 
This  is  the  statute  of  jeofails  4  Geo.  2,  c.  26,  for  turning  all  law  pro- 
ceedings into  English,  and  it  has  this  remarkable  conclusion,  "that 
every  statute  of  jeofails  shall  extend  to  all  forms  and  proceedings  in 

1  Arguments  of  counsel  and  parts  of  the  opinion  of  the  court  have  been  omitted 
—  Ed. 


SECT.  II.]  BANCUOFT   V.    MITCHELL.  43 

English  (except  in  criminal  cases) ;  and  that  this  clause  shall  be  con- 
strued in  the  most  beneficial  manner,"     This  is  very  decisive. 

No  authority  whatever  has  been  mentioned  on  tlie  other  side,  nor  any 
case  cited  where  it  has  been  held  that  a  penal  action  is  a  criminal  case  ; 
and  perhaps  the  point  was  never  before  doubted.  The  single  authority 
mentioned  against  receiving  the  evidence  of  the  Quaker  in  this  case  is 
an  appeal  of  murder,  2  Str.  856.  But  that  is  only  a  different  mode  of 
prosecuting  an  offender  to  death.  Instead  of  proceeding  by  indictment 
in  the  usual  way,  it  allows  the  relation  to  carry  on  the  prosecution  for 
the  purpose  of  attaining  the  same  end,  which  the  King's  prosecution 
would  have  had  if  the  offender  had  been  convicted,  namel}-,  execution  : 
and  therefore,  the  writers  on  the  law  of  England  class  an  appeal  of 
murder  in   the   books  under  the  head  of  criminal  cases.  .  .   . 

In  the  case  of  Rex  v.  Turner,  2  Str.  1219,  on  a  motion  to  quash  an 
appointment  of  overseers,  the  court  said,  though  the  prosecution  is 
in  the  King's  name,  the  end  of  it  is  a  civil  remedy,  and  very  properly 
allowed  the  Quaker's  affirmation  to  be  read. 

It  is  extraordinary,"  that  upon  all  the  cases  of  attachment  not  one 
was  argued  upon  the  ground  of  its  being  a  criminal  case;  and  to  be 
sure  the  exception  might  as  well  hold  on  an  affirmation  taken  to  hold 
to  bail ;  because  it  deprives  a  man  of  his  liberty.  The  very  last 
attachment  for  non-performance  of  an  award  was  obtained  in  this 
court  upon  a  Quaker's  affirmation,  and  not  a  word  said  by  way  of 
objection  to  it.     That  was  the  case  of  Taylor  v.   Scott. 

We  are  not  under  the  least  embarrassment  in  the  present  case  :  for 
there  is  not  a  single  authority  to  prove,  that  upon  a  penal  action 
a  Quaker's  evidence  may  not  be  received  upon  his  affirmation.  There- 
fore, I  am  of  opinion  that  Mr,  Justice  Nares  did  perfectly  right  in 
admitting  this  Quaker  to  be  a  witness  upon  his  affirmation  ;  and  con- 
sequently that  the  rule  for  a  new  trial  should  be  discharged. 

The  three  other  Judges  concurred. 

Hide  discharged. 


3l  ^ 
BANCROFT  v.    MITCHELL. 

Queen's  Bench.     1867. 
[Reported  L.  R.  2  Q.  B.  549.] 

This  was  an  action  for  false  imprisonment.  The  plaintiff  was  arrested 
while  he  was  protected  from  arrest  on  civil  suits  by  an  order  of  the 
Court  of  Bankruptcy.  The  defence  was  that  the  plaintiff  was  arrested 
on  a  warrant  for  failure  to  obey  the  order  of  a  magistrate  for  paving 
3s.  per  week  for  the  support  of  his  mother.  At  the  trial  the  jury  found 
one  farthing  damages. 

The  learned  judge,  being  of  opinion  that  the  plaintiff  was  not  protected 
from  arrest,  directed  a  nonsuit,  with  leave  to  the  plaintiff  to  move  to 
enter  a  verdict  for  15^.  and  a  farthing. 


44  BANCROFT   V.   MITCHELL.  [CHAP.  L 

A  rule  was  accordingly  obtained.^ 

Blackburn,  J.  The  question  which  arises  under  s.  113  of  12  &  13 
Vict.  c.  106  is,  whether  or  not  the  plaintiff  was  protected  by  the  order 
of  the  county  court  from  the  process  under  which  he  was  arrested. 
That  depends  upon  the  nature  of  the  process  under  which  he  was 
arrested  and  the  nature  of  the  process  from  which  the  bankrupt  is  pro- 
tected. Section  113  relates  back  to  s.  112,  which  provides  that,  if  a 
bankrupt  be  not  in  prison,  he  shall  be  free  from  arrest  in  coming  to 
surrender,  and  after  such  surrender  for  such  further  time  as  shall  be 
allowed  him  by  the  commissioner ;  and  if  he  be  in  prison  he  may  be 
brought  up  to  be  examined  or  to  surrender,  and  after  he  has  been 
adjudged  a  bankrupt  and  has  surrendered  and  obtained  his  protection 
from  arrest,  if  he  be  in  pi-ison  or  arrested  for  debt,  the  Court  may  order 
his  immediate  release.  Now,  the  words  of  s.  112  are  neai-ly  similar  to 
those  contained  in  the  bankruptcy  acts  passed  before  12  &  13  Vict.  c. 
106,  and  the  point  was  considered  in  Darby  r.  Baugham,  5  T.  R.  209, 
and  the  decision  of  the  Court  was,  that  the  object  of  the  enactment 
then  in  force  was  to  give  protection  to  the  same  extent,  and  in  the 
same  way,  to  a  bankrupt,  as  a  witness  who  was  going  to  court  to  give 
evidence  would  receive  protection,  and  therefore  a  bankrupt's  creditors 
could  not  arrest  him  as  he  was  going  to  surrender.  The  protection 
which  tiie  bankrupt  receives  being  analogous  to  that  accorded  to  a  wit- 
ness, the  process  against  which  he  is  protected  is  in  the  nature  of  civil 
process,  but  if  on  the  other  hand  the  process  is  in  the  nature  of  crimi- 
nal process  he  is  not  protected. 

The  question  remains,  what  is  the  nature  of  the  process  under  which 
the  plaintiff  was  arrested?  What  is  it  that  the  plaintiff  has  do^e  or 
omitted  to  do?  He  is  the  son  of  a  woman  who  is  chargeable  to  the 
parish,  and  be  is  of  sufficient  ability  to  support  her.  There  was  a 
moral  duty  on  him,  but  at  common  law  no  legal  duty,  to  support  her. 
By  statute  43  Eliz.  c.  2,  s.  7,  it  is  enacted,  that  the  children  of  every 
poor  person  not  being  able  to  work,  being  of  sufficient  ability,  shall,  at 
their  own  charge,  relieve  and  maintain  every  such  poor  person  in  that 
manner,  and  according  to  that  rate,  as  by  the  justices  shall  be  assessed, 
upon  pain  that  every  one  of  them  shall  forfeit  20s.  for  every  month 
which  they  shall  fail  therein.  It  was  as  a  punishment  for  the  disobedi- 
ence of  an  order  made  under  this  section  that  the  plaintiff  was  arrested. 
INIr.  Williams'  argument  is  that  the  plaintiff  was  arrested  for  not  paying 
a  sum  of  money  which  he  was  ordered  to  pay  to  the  parish,  and  there- 
fore it  was  only  for  the  non-payment  of  a  debt  that  he  was  arrested. 
But  the  payment  of  the  sum  is  only  one  mode  by  which  the  plaintiff 
complies  with  the  statute.  The  statute  makes  what  was  a  duty  of  im- 
perfect obligation  a  positive  duty.  I  agree  that  the  fact  that  an  indict- 
ment will  lie  for  a  disobedience  of  an  order  of  sessions  is  no  reason 

1  This  short  statement  of  the  facts  is  substituted  for  that  of  the  Reporter.     Argu- 
ments of  counsel  are  omitted.  —  Ed. 


SECT.  II.]  .  STATE    V.    BALDWIN.  45 

that  the  disobedience  should  be  an  offence  of  a  criminal  nature.  The 
offence  here  is  that  the  plaintiff  being  of  ability  would  not  support  his 
impotent  relative  —  that  is  a  duty  the  neglect  of  v.-hich,  though  only 
moralh-  wrong  before  the  statute,  is  made  a  crime  by  the  statute.  It 
seems  to  me,  therefore,  that  the  commitment  is  not  in  the  nature  of 
civil,  but  of  criminal  process  to  punish  the  plaintiff  for  not  performing 
the  duty  imposed  on  him  by  statute.  It  is  quite  true  that  on  payment 
of  the  money  he  would  get  off  the  imprisonment,  but  still  it  is  in  the 
nature  of  criminal  process,  and  consequently  the  plaintiff  was  not 
entitled  to  his  discharge.  He  must,  therefore,  fail  to  recover  the  15/. 
penalty  or  the  farthing  damages  which  the  jury  have  given  him,  because 
he  was  properly  imprisoned  as  a  misdemeanant,  and  not  as  a  debtor. 
There  was  evidence  that  it  was  necessary  for  his  health,  and  for  the 
sake  of  cleanliness,  that  his  hair  and  whiskers  should  be  cut,  and  it 
was  a  question  for  the  jur\'  whether  there  was  any  excess  in  this 
respect,  and  I  think  we  must  take  it  there  was  none. 

Mellor,  J.  I  am  of  tlie  same  opinion.  I  was  impressed  by  the 
argument  of  Mr.  Williams  that  whether  the  plaintiff  could  be  indicted 
or  not  for  a  disobedience  of  the  order,  was  not  the  test  whether  the 
offence  was  criminal  or  not.  But  I  have  come  to  the  conclusion  that 
the  duty  of  a  sou  to  support  his  mother,  having  been  originally  moral 
only,  was  made  a  positive  duty  by  tlie  statute,  whicli  requires  that,  in 
the  event  of  the  son  neglecting  that  duty,  he  shall  pay  such  sum  as  the 
justices  shall  order,  and  then  the  ultimate  enforcement  of  that  duty  is 
carried  out  b}*  fixing  a  penalt\-,  and  irt  the  event  of  the  nonpayment  of 
that  penalty  a  punishment  of  not  more  than  three  months  imprisonment 
is  imposed.  That  is  in  the  nature  of  a  punishment  for  a  criminal 
offence.  It  is  not  at  all  analogous  to  the  case  of  an  indictment  for  dis- 
obeying an  order  of  sessions  for  the  payment  of  poor-rates,  nor  to  an 
attachment  for  nonpayment  of  money  pursuant  to  the  order  of  the 
Court  of  Chancer}',  where  the  process  is  in  the  nature  of  an  execution 
for  a  debt.  The  circumstances  of  this  case  show  that  the  imprisonment 
is  a  punishment  for  an  offence,  and  not  for  enforcing  a  mere  obligation 
to  pay  money.  The  plaintiff,  therefore,  is  not  entitled  to  the  penalty 
for  which  he  sues,  nor  to  the  damages  the  jury  have  given  him  ;  the  rule 
must  be  discharged.  Rule  discharged. 


STATE   V.    BALDWIN. 
Supreme  Court  of  Xorth  Carolina.     1835. 
[Reported  1  Dev.  cj-  Bat.  195  ] 
Gaston,  J.^     ...  The  act  here  charged  is  not  made  up  of  a  number 
of  acts  frequently  repeated,  and  which  cannot  be  distinctly  and  spec- 
ially set  forth  without  inconvenient  prolixity.     It  is  an  act  single  and 
distinct,  and  committed  on  a  particular  occasion.     It  is  charged  that 

1  Part  of  the  opinion  is  omitted.  —  En. 


46  STATE   V.   BALDWIN.  [CHAP.  I. 

the  defendants  assembled  at  a  public  place,  and  profanel}-  and  with  a 
loud  voice  cursed,  swore,  and  quarrelled,  in  the  hearing  of  divers  per- 
sons, and  it  is  alleged,  that  by  means  thereof  a  certain  singing  school 
then  and  there  kept  and  held  was  broken  up  and  disturbed.  This  pro- 
fane and  loud  cursing  and  quarrelling  on  that  partictdar  occasion^ 
might  have  been  an  annoyance  to  those  who  heard  and  witnessed  it; 
but  it  could  not  have  been  an  anno3"ance  to  the  citizens  in  general, 
unless  there  were  some  other  facts  in  the  case.  If  there  were  such 
other  facts,  then  these  ought  to  have  been  set  forth;  for  an  indictment 
must  specify  all  the  facts  which  constitute  the  offence.  It  is  possible 
that  a  frequent  and  habitual  repetition  of  acts  which  singlv  are  but 
private  annoyances  may  constitute  a  public  or  common  nuisance.  But 
if  so,  this  frequent  and  habitual  repetition  should  be  appropriately 
charged.  No  injurious  consequences  of  an  abiding  kind,  and  therefore 
affecting  not  simply  those  present  at  the  commission  of  the  act,  but 
affecting  the  citizens  successivelv,  and  as  they  come  within  the  reach 
of  these  consequences^  are  charged,  or  can  be  presumed  to  have  followed 
from  the  act.  "The  singing  school"  is  indeed  said  to  have  been 
broken  up  and  disturbed.  Of  whom  that  school  was  composed  does 
not  even  appear,  but  whether  it  consisted  of  the  defendants  or  of  others 
its  interruption  cannot  be  legalh'  pronounced  an  inconvenience  to  the 
whole  community.  The  loss  of  instruction  in  the  accomplishment,  to 
those  who  would  fain  acquire  it,  does  not  very  gravely  influence  the 
good  order  or  enjoyment  or  convenience  of  the  citizens  in  general,  so 
as  to  call  for  redress  on  the  complaint  of  the  state. 

If  we  sustain  this  as  an  indictment  for  a  common  nuisance,  we  shall 
be  obliged  to  hold?  Unit  whenever  two  or  more  persons  talk  loud  or 
curse  or  quarrel  in  the  presence  of  otiiers,  it  may  be  charged  that  this 
was  done  to  the  common  nuisance,  and  if  so  found,  will  warrant 
punishment  as  for  a  crime.  This  would  be  either  to  extend  the  doctrine 
of  common  nuisances  far  beyond  the  limits  within  which  they  have 
hitherto  been  confined,  or  to  allow  of  a  vagueness  and  generality  in 
criminal  charges,  inconsistent  with  that  precision  and  certainty  on  the 
records  so  essential  as  restraints  on  capricious  power,  and  so  salutary 
as  the  safeguards  of  innocent  men. 

Independently  of  the  averment  "  to  the  common  nuisance,"  the 
indictment  contains  no  criminal  charge.  No  conspiracy  is  alleged,  no 
special  intent  or  purpose  is  averred,  which  would  impress  an  extraor- 
dinary character  on  the  act  done.  The  persons  disturbed  are  not  rep- 
resented as  having  been  engaged  in  the  performance  of  any  public 
dut3'  —  as  engaged  in  religious  worship,  attending  at  an  election,  or  at 
a  court.  Upon  a  demurrer  to  the  indictment,  we  should  be  unable  to 
render  a  judgment  for  the  state.  It  is  our  opinion,  therefore,  that 
there  is  no  error  in  the  proceedings  below,  and  that  the  judgment 
appealed  from  must  be  affirmed. 

Per  Curiam.  Judgment  affirmed. 


SECT.  II.]  STATE   V.    STEARNS.  47 

STATP:  v.  STEARNS. 
Superior  Court  of  Judicature,  New  Hampshire.    1855. 

[Reported  31  A".  H.  106.] 

This  is  a  prosecution  against  the  respondent,  for  a  breach  of  an 
ordinance  of  the  city  of  Portsmouth,  regulating  bowling  alle3-s,  com- 
menced b}'  a  complaint  before  a  justice  of  the  peace. ^ 

A  warrant  was  issued  upon  this  complaint,  returnable  before  the 
police  court  of  the  cit}-  of  Portsmouth,  and  the  respondent  being  there 
found  guilt}-,  took  an  appeal  to  the  court  of  common  pleas. 

In  the  court  of  common  pleas,  the  respondent  was  ordered  to  pay 
the  costs  of  the  copies,  and  entry  in  that  court,  to  which  order  he  ex- 
cepted. The  respondent  demurred  to  the  complaint  and  declaration  in 
this  court,  and  the  court  sustained  the  demurrer  and  dismissed  the 
complaint.  The  respondent  then  moved  for  costs  of  this  court,  and 
also  of  the  police  court,  to  be  taxed  against  the  cit}'  of  Portsmouth,  or 
the  complainant  in  said  prosecution,  which  motion  was  refused  by  the 
court,  and  the  respondent  excepted. 

The  penalty  to  be  recovered  for  the  breach  of  this  ordinance  is,  by 
law,  to  be  appropriated  for  such  uses  as  shall  be  directed  by  the  city 
council  of  said  city. 

The  questions  arising  upon  these  exceptions  were  transferred  to  this 
court  for  decision. 

Bell,  J.  .  .  .  It  is  contended  for  the  respondent  that  this  proceeding 
is  not  in  its  nature  criminal,  but  is  essentially  a  civil  action,  falling  within 
the  statute  rule  that  "  costs  shall  follow  the  event  of  every  action  or 
petition,  unless  otherwise  directed  b}-  law,  or  by  the  court."  Rev.  Stat, 
ch.  191,  §  1.  And  first  it  is  said  that  the  form  of  proceeding  b}^  com- 
plaint is  not  conclusive  that  the  case  is  of  a  criminal  nature,  and  to  this 
position  we  are  inclined  to  yield  our  assent ;  but  we  think  it  very  clear 
that  a  statute  provision  prescribing  such  proceedings  in  a  given  case,  as 
are  usually  made  appropriate  by  the  law  to  criminal  cases,  is  strong 
evidence  that  the  cases  were  regarded  by  the  legislature  as  of  a  criminal 
nature. 

We  think,  too,  it  ma}-,  in  general,  be  justly  inferred,  where  the  legi^ 
lature  prescribe  a  course  of  proceedings  adopted  Iiy  the  common  law 
for  proceedings  of  a  nature  entirely  different,  that  the  design  of  the 
legislature  was  to  prescribe  all  the  known  and  usual  incidents  of  the 
prescribed  process,  and  to  give  to  parties  the  advantages  of  proceed- 
ings in  that  form.  As,  if  the  legislature  grant  a  remedy  in  assumpsit, 
where,  at  common  law,  trespass  would  be  appropriate,  they  design  that 
the  action  of  assumpsit  shall  retain  its  proper  character  and  rules  in 
that  case. 

^  The  form  of  the  complaint  and  part  of  the  opinion  of  the  court  arc  omitted. —  Ed. 


48  STATE   V.    STEAENS.  [CHAP  I. 

Neither  does  the  appropriation  of  the  fine  or  penalty  imposed  in  a 
given  case,  whether  it  be  to  the  state,  count}',  or  town,  or  to  a  corpo- 
ration, or  individual,  furnish  any  decisive  test  that  a  proceeding  is 
criminal  or  civil.  When  a  statute  forbids  fraudulent  mortgages  and 
the  concealment  of  attachable  property,  it  by  no  means  follows, 
because  half  the  fine  is  given  to  the  complainant,  that  the  prosecution 
is  civil,  nor  would  it  do  so  if  the  whole  fine  were  so  appropriated. 

The  question  whether  a  legal  proceeding  is  to  be  deemed  civil  or 
criminal,  or  as  partaking  of  the  nature  of  civil  and  criminal  proceed- 
ino-s,  is  to  be  determined  by  the  consideration  whether  the  law  is  de- 
signed to  suppress  and  punish  a  public  wrong,  an  injury  affecting  the 
peace  and  welfare  of  the  community  and  the  general  security,  or 
whether  it  is  designed  mainly  to  afford  a  remedy  to  an  individual  for 
an  injury  done  to  his  person  or  property.  Upon  this  question  the  ap- 
propriation of  the  fine  or  penalty  has  a  bearing,  since,  if  it  is  applied 
to  the  public  use,  no  idea  can  be  entertained  that  the  proceeding  is 
designed  as  a  remedy  for  a  private  loss  or  injury,  though  it  may  some- 
time^ have  a  different  tendency,  where  the  amount  is  appropriated  to 
the  use  of  a  suflfering  party. 

And,  in  a  similar  way,  the  adoption  of  a  course  of  proceeding  usual 
in  criminal  cases  alone  may  bear  upon  the  main  question  before  referred 
to,  because,  ordinarily,  proceedings  adapted  to  the  punishment  of 
oflences  are,  to  a  great  degree,  unsuital)le  for  the  redress  of  private  in- 
juries. The  party  injured  has  no  exclusive  privilege  to  institute 
criminal  proceedings  ;  they  are  equally  open  to  others  ;  he  has  no  con- 
trol over  such  prosecutions,  which  are  generally  managed  by  the  public 
authorities  ;  the  fines  and  penalties  are,  for  the  most  part,  payable 
to  others,  and  liable  to  be  remitted  by  the  proper  officers  witfcout 
reference  to  his  wishes  or  his  interest. 

This  present  case  is  one  of  a  prosecution  for  an  offence  made  penal 
by  a  city  ordinance,  because  of  its  supposed  evil  consequences  to  so- 
ciety. It  has  no  relation  to  any  individual  wrong,  and  the  remedy 
prescribed  is  such  as  indicates  a  criminal  proceeding.  It  is  prosecuted 
by  a  public  officer,  as  part  of  his  oflEicial  duty,  but  might  be  prosecuted 
by  any  other  person  as  well.  The  fine  is  payable  to  the  city,  but  not 
to  compensate  any  wrong  to  the  corporation.  The  burden  of  adminis- 
tering justice  is  here  imposed  upon  counties,  cities,  and  towns,  and 
fineslind  forfeitures  are  payable  to  them,  as  the  representatives  of  the 
public,  to  aid  in  defraying  this  part  of  the  expense  of  civil  government. 
The  case  then  seems  to  us  to  lack  all  the  indicia  of  a  civil  action,  and 
to  be,  in  fact,  as  it  appears,  a  criminal  prosecution. 

The  court  were  in  error  in  requiring  the  costs  of  the  copies  and  entry 
to  be  paid,  but  the  costs  were  properly  disallowed. 


SECT.  II.]  STATE   V.    KEENAN,  49 

STATE   V.  KEENAN. 
Supreme  Court  of  Errors  of  Connecticut.     1889. 

[Reported  57  Conn.  286.] 

Carpenter,  J.  This  is  a  criminal  prosecution  for  the  violation  of  an 
ordinance  of  the  city  of  New  Haven.  The  City  Court  convicted  the 
defendant,  and  he  appealed  to  the  Court  of  Common  Pleas,  criminal 
side.  In  the  appellate  court  the  defendant's  counsel  moved  to  erase 
the  case  from  the  docket  on  the  ground  that  the  alleged  offence  was  not 
a  crime  ;  and  on  that  motion  the  case  was  reserved  for  the  advice  of 
this  court. 

The  ordinance  is  as  follows  :  —  "  no  vehicle,  or  the  animals  attached 
thereto,  shall  stand  waiting  for  employment  within  ten  feet  of  any 
cross-walk."  Another  section  prescribes  a  penalty  of  not  less  Dian  one 
nor  more  than  ten  dollars  for  every  violation  of  the  ordinance.  The 
onl}'  question  is  whether  such  violation  is  a  crime. 

If  the  legislature  itself  had  prohibited  the  act  and  prescrilied  the 
penalt}'  in  precisely  the  same  terms,  there  can  be  little  doubt  that 
the  act  would  be  a  misdemeanor  and  might  be  prosecuted  criminally. 
It  cannot  be  disputed  that  the  legislature  in  fact  granted  the  power  to 
enact  this  b3--law,  and  the  power  has  been  exercised.  Logically  it 
would  seem  to  follow  that  the  by-law  should  be  of  the  same  character 
and  have  the  same  force  within  local  limits  as  if  enacted  by  the 
legislature. 

The  test  whether  a  proceeding  is  civil  or  criminal,  is  to  determine 
whether  its  purpose  is  to  redress  a  private  or  a  public  wrong.  Is  the 
law  made  to  prevent  a  private  injury  or  a  nuisance? 

In  Hinman  v.  Taylor,  2  Conn.  357,  which  was  a  prosecution  under 
the  bastardy  act,  it  was  contended  that  because  the  proceeding  was  in 
form  criminal  it  must  be  regarded  as  a  criminal  prosecution  ;  but  the 
court  took  a  different  view.  SveiFT,  C.  J.,  held  that  the  proposition 
that  the  form  of  the  process  decided  the  character  of  the  action,  was 
repugnant  to  reason  and  precedent.  "  Suppose,"  he  says,  "  the  legis- 
lature should  authorize  a  forthwith  process  on  a  note  of  hand  ;  no  one 
will  seriously  pretend  that  this  would  convert  an  action  of  assumpsit 
into  a  criminal  suit.  To  constitute  a  criminal  suit  some  punishment 
must  be  inflicted  in  behalf  ©f  the  state."  He  evidentlv  regarded  the 
object  and  nature  of  the  suit  as  determining  the  character  of  the  pro- 
ceeding. Judge  HosMER,  in  the  same  case,  is  still  more  explicit. 
He  says:  "The  criterion  to  ascertain  a  crime  is  not  the  mere  form  of 
process,  but  the  nature  of  the  act  or  omission.  If  it  be  a  violation  of  a 
public  law,  it  is  a  crime  or  misdemeanor."  We  find  the  same  doctrine 
clearly  stated  in  State  v.  Stearns,  31  N.  Hamp.  106. 

i 


50  STATE    V.    KEEN'AN.  [CHAP.  I. 

Let  US  apply  that  test.  A  criminal  form  of  proceeding  is  clearly 
authorized,  and  the  act  is  an  offence  against  the  public  and  not  an  injury 
to  an  individual.  The  penalty  is  not  in  the  nature  of  compensation  to 
the  city  for  an  injury  sustained,  but  is  designed  as  a  punishment  for  a 
wrong  done  to  the  community  —  a  wrong  prohibited,  because  it  may 
result  in  harm  or  inconvenience  to  individuals,  who  may  or  may  not 
l)e  inhabitants  of  the  city.  Tims  tested  the  nature  of  the  act  as  well 
as  the  form  of  process  is  clearly  criminal. 

Two  reasons  are  urged  why  a  criminal  prosecution  cannot  be  main- 
tained and  that  the  motion  to  dismiss  should  prevail.  First,  that  the 
charter  expressly  provides  that  an  action  may  be  brought  for  the  penalty 
in  the  name  of  the  city  treasurer,  and  that  consequently  that  remedy 
alone  must  be  pursued.  But  this  argument  overlooks  the  object  of  the 
bv-law,  which  is  to  prevent  a  nuisance,  a  matter  in  its  nature  criminal. 
It  is  no  uncommon  thing  for  a  statute  to  authorize  an  action  to  recover 
a  penalty  incurred  by  doing  a  forbidden  act,  even  where  a  public  prose- 
cution can  be  sustained,  as  is  the  case  in  all  qui  tinn  actions.  Here 
not  only  a  civil  suit  but  a  public  prosecution  is  authorized  in  the  charter. 
But  to  avoid  injustice  it  is  expressly  provided  that  --no  person  shall 
be  prosecuted  both  civilly  and  criminally  for  the  same  breach  of  a 
by-law." 

In  the  second  place,  it  is  contended  that  the  right  of  imprisonment  to 
coerce  the  payment  of  a  penalty  is  not  expressly  given  ;  and  if  not 
expressly  granted,  it  cannot  exist.  This  argument  seems  to  beg  the 
question  by  assuming  that  the  sole  object  of  the  suit  is  to  collect  a 
penalty  for  tlie  benefit  of  the  city  of  New  Haven  ;  whereas  the  real 
purpose  of  the  by-law,  and  consequently  of  the  action,  is  to  supijr-iss  a 
public  nuisance.  For  that  purpose  there  can  be  no  serious  objection 
to  putting  in  operation  the  power  and  legal  machinery  of  the  state. 

We  advise  that  the  motion  to  dismiss  be  denied. 

In  this  opinion  the  other  judges  concurred. 


SECT.  I.]  WISPINGTON    V.    EDLINGTON.  51 

CHAPTER   II. 

THE   OFFENCE:    KINDS   OF   OFFENCE. 


SECTION   I. 

Felonies. 

kennp:l  v.  church. 

Cornish  Eyre.     1201. 
[1  Seidell  Soc.  7.] 

OsBKRT  Church,  accused  of  the  death  of  Roland,  son  of  Reginald  of 
Kennel,  on  the  appeal  of  the  said  Reginald,  was  detained  in  gaol  and 
defends  word  by  word.  And  Reginald  offers  proof  b}-  the  body  of  a 
certain  freeman,  Arkald,  who  has  his  daughter  to  wife,  who  is  to  prove 
in  his  stead  since  he  has  passed  the  age  of  sixty.  Osbert  Church 
defends  all  of  it.  The  knights  of  the  hundred  of  Penwith  say  that  they 
suspect  him  of  the  said  death.  The  knights  of  Kerrier  say  the  same. 
The  knights  of  Penwith  say  the  same.  The  knights  of  Pyder  say  the 
same.     Judgment:  let  him  purge  himself  by  water. 

And  Reginald  is  in  mere}'  for  he  does  not  allege  sight  and  hearing, 
and  because  he  has  withdrawn  himself,  and  put  another  in  his  place, 
wlio  neither  saw  nor  heard  and  yet  offered  to  prove  it,  and  so  let  both 
Reginald  and  Arkald  be  in  mercy. 

Osbert  is  purged  by  the  water.^ 


^7 

WISPINGTON   V.  EDLINGTON. 

Lincolnshire  Eyre.     1202. 

[1  Selden  Soc.  10.] 

AsTiN  of  Wispington  appeals  Simon  of  Edlington,  for  that  he 
wickedly  and  in  the  king's  peace  assaulted  him  in  his  meadows  and 
put  out  his  eye  so  that  he  is  maimed  of  that  eye  ;  and  this  he  offers  to 
prove,  &c.  Simon  comes  and  defends  all  of  it  word  by  word.  And  the 
coronors  and  the  county  testify-  that  hitherto  the  appeal  has  been  duly 
sued,  at  first  by  [Astin's]  wife,  and  then  b}'  [Astin]  himself. 

1  For  cases  on  the  modern  law  of  Homicide  see  Chap.  XIII.  —  Ed. 


52  REX  V.    HUGH.  [chap.  II. 

Judgment:  let  law  be  made,  and  let  it  be  in  the  election  of  the  ap- 
pellee whether  he  or  Astin  shall  carry  the  iron.  He  has  chosen  that 
Astin  shall  carry  it.  Astin  has  waged  the  law.  Simon's  pledges  Wil- 
liam of  Laud  and  his  franl<pledge  and  Ralpli  of  Stures.  Astin's  pledge, 
Roo-er  of  Thorpe,  Osgot  of  Wispington,  and  WilUam,  Joel's  brother. 

Afterwards  came  [the  appellor  and  appellee]  and  both  put  themselves 
in  mercy. 


JORDAN   DE   HORMED   v.  WALTER   HACON. 

Hertford  Eyre.     1198. 
[1  Rotuli  Curiae  Regis,  160.] 

Jordan  of  Hormed  appeals  Walter  Hacon  for  that  in  the  peace  of  the 
king  and  wickedly  in  felony  he  assaulted  him  in  his  house  at  Strange  near 
Ikenton,  and  wounded  him  in  the  head  and  in  the  hand  ;  and  he  shows 
the  wounds  and  offers  to  prove  it  by  his  body  as  the  court  shall 
consider. 

Walter  defends  all,  word  for  word,  against  him  as  against  a  champion 
hired  and  paid,  who  twice  had  started  on  this  course  and  as  often  retired 
without  completing  it. 

Jordan  denies  that  he  is  a  champion,  and  pursues  his  suit  against  him. 

And  a  jury  of  knights  testify  that  on  another  occasion  he  had  appealed 
him  of  the  robbery  of  a  sword  and  cape  of  which  he  now  made  no 
mention. 

They  are  to  have  a  day  at  Dunstable.^ 


19. 

REX  V.  HUGH.. 

Cornish  Eyre.     1302. 

[Year  Book  30  cj-  31  EJ.  I,  529.] 

H.  was  presented  by  the  twelve  of  Y. ,  for  tliat  he  seized  a  certain 
girl,  and  carried  her  to  his  manor  in  a  certain  vill,  and  carnally  knew 
her  against  her  will. 

H.  was  brought  to  the  bar  by  Brian  and  Nicholas  de  N. 

The  Justiciar.  Brian,  we  are  given  to  understand  that  J'ou  would 
have  induced  the  prisoner  not  to  put  himself  upon  the  jury  which  ac- 
cused him,  and  you  have  done  ill,  but  because  he  is  your  relative,  we 

1  For  cases  on  the  modern  law  of  Assault  see  Chap.  XIII.,  Sect.  II.—  Ed. 


SECT.  I.J  ■  KEX   V.    HUGH.  53 

are  willing  that  3-011  should  stand  by  him,  but  not  that  you  should  act 
as  his  counsel. 

Brian.  My  lOrd,  he  is  my  relative,  but  I  wish  to  disprove  this,  &c., 
and  I  desire  that  it  should  be  well  with  hira  ;  but  he  will  be  well  ad- 
vised by  me  to  refuse  his  common  law.  And  lest  I  should  be  at  all 
suspected  of  strife,  I  will  withdraw. 

The  Justiciar.  Hugh,  the  presentment  is  made  to  us  that  you 
carried  off,  &c.,  as  is  set  forth;  how  will  you  acquit  yourself? 

Hugh.  My  lord,  I  pray  that  I  may  have  counsel,  lest  I  be  undone 
in  the  King's  court  for  lack  of  counsel. 

The  Justiciar.  You  must  know  that  the  king  is  a  party  in  this  case, 
and  prosecutes  ex  officio;  therefore  the  law  in  this  case  does  not  suffer 
you  to  have  counsel  against  the  king,  who  prosecutes  ex  officio;  but  if 
the  woman  should  proceed  against  you,  you  might  have  counsel  against 
her,  but  not  against  the  king.  And  therefore  we  order  on  the  king's 
behalf  that  all  pleaders  of  your  counsel  withdraw.  (These  were  removed.) 
Hugh,  answer.  You  see  the  thing  charged  against  you  is  a  very  possi- 
ble thing,  and  a  thing  of  your  own  doing  ;  so  you  can  well  enough,  with- 
out any  counsel,  answer  whether  you  did  it  or  not.  Moreover,  the  law 
ought  to  be  general,  and  applicable  to  all  persons ;  and  the  law  is  that 
the  king  is  a  party  ex  officio,  against  whom  one  shall  not  have  counsel ; 
and  if,  in  contradiction  to  law,  we  should  allow  you  counsel,  and 
the  Jury  should  give  a  verdict  in  your  favor  (as,  please  God,  they  will 
do),  people  would  say  that  you  were  acquitted  by  reason  of  the  favor 
of  the  Justiciars  ;  consequently  we  do  not  dare  grant  your  request, 
nor  ought  you  to  make  it.     Therefore,  answer. 

Hugh.  My  lord,  I  am  a  clerk,  and  ought  not  to  be  required  to 
answer  except  unto  my  ordinary. 

The  Justiciar.     Are  you  a  clerk? 

Hugh.     Yes,  my  lord,  for  I  have  been  rector  of  the  church  of  N. 

Ordinary.     We  demand  him  as  a  clerk. 

Hugh.     He  speaks  for  me. 

The  Justiciar.  We  say  that  you  have  forfeited  your  benefit  of 
clergy,  inasmuch  as  you  are  a  bigamist,  having  married  a  widow  ;  tell 
us  whether  she  was  a  virgin  when  you  married  her ;  and  it  is  as  well  to 
know  the  truth  at  once  as  to  delay,  for  we  can  find  out  in  a  moment 
from  fi  jury. 

Hugh.     My  lord,  she  was  a  virgin  when  I  married  her. 

The  Justiciar.  This  should  be  known  at  once.  And  he  asked  the 
twelve  whether  Hugh,  &c.,  who  said  on  their  oath  that  she  was  a 
widow  when  Lord  Hugh  married  her.  But  note  that  they  were  not 
sworn  anew,  because  they  had  been  sworn  before. 

The  Justiciar.  Therefore  this  court  adjudges  that  you  answer  as 
a  layman,  and  agree  to  those  good  men  of  the  twelve ;  for  we  know 
that  they  will  not  lie  to  us. 

Hugh.     My  lord,  I  am  accused  by  them  ;  therefore  I  shall  not  agree 


54  REX   V.    HUGH.  [chap.  II. 

to  them.  Besides,  my  lord,  I  am  a  knight,  and  I  ought  not  to  be  tried 
except  by  my  peers.  ^ 

The  Justiciar.  Since  you  are  a  knight,  we  are  willing  that  you  be 
judged  by  your  peers.  And  kniglits  were  named ;  and  he  was  asked  if 
he  wished  to  propound  an}'  challenges  against  them. 

Hugh.  My  lord,  I  do  not  agree  to  them;  you  shall  take  whatever 
inquisition  you  will  ex  officio^  but  I  will  not  agree. 

The  Justiciar.  Lord  Hugh,  if  you  will  agree  to  them,  God  willing, 
they  will  find  for  3'ou  if  you  will  only  consent  to  them.  But  if  you  will 
refuse  the  common  law,  3-ou  will  incur  the  penalty  therefor  ordained,  to 
wit,  "  one  day  you  shall  eat,  and  the  next  day  3-ou  shall  drink  ;  and  on 
the  day  when  3-ou  drink  you  shall  not  eat,  and  e  coutra  ;  and  3-ou  shall 
eat  barley-bread,  and  not  wheaten-bread,  and  drink  water,"  &c.  ex- 
plaining man3-  reasons  wlw  it  would  not  be  well  to  dela3^  at  this  point, 
but  would  be  better  to  agree  to  tliese. 

Hugh.  I  will  agree  to  my  peers,  but  not  to  the  twelve  by  whom  I 
am  accused;  wherefore  hear  my  challenges  against  them. 

The  Justiciar.  Willingly;  let  them  be  read;  but  if  3-00  have  an3'- 
thing  to  say  wherefore  they  ought  to  be  removed,  say  it  with  your  own 
voice  or  in  writing. 

Hugh.     My  lord,  I  pray  counsel,  for  I  cannot  read. 

The  Justiciar.     No,  for  it  is  a  matter  touching  our  Lord,  the  King. 

Hugh.     Do  you  take  them  and  read  them. 

The  Justiciar.  No,  for  they  ought  to  be  proposed  by  your  own 
mouth. 

Hugh.     But  I  cannot  read  them. 

The  Justiciar.  How  is  this,  that  you  would  have  claimed  your 
benefit  of  clergy,  and  cannot  read  your  challenges?  (Hugh  stood  silent 
in  confusion.)  Do  not  be  struck  dumb,  now  is  the  time  to  talk.  (To 
Lord  N.  de  Leyc.)     Will  you  read  Lord  Hugh's  challenges? 

Lord  N.  My  lord,  if  I  do,  let  me  have  the  liook  which  he  has  in  his 
hands.  (After  receiving  it)  My  lord,  here  are  written  challenges  against 
several ;  shall  I  read  them  aloud  ? 

The  Justiciar.  No,  just  read  them  secretly  to  the  prisoner,  for  they 
ought  to  be  offered  by  his  own  mouth.  And  so  it  was  done.  And 
when  they  liad  been  offered  by  his  own  mouth,  since  they  were  found 
true  challenges,  those  against  whom  the3'  were  offered  were  removed 
from  the  inquisition. 

The  Justiciar.  We  challenge  Lord  Hugh  of  rape  of  a  certain 
woman,  he  denies  it,  and  is  asked  how  he  will  be  tried  ;  he  says  by  a 
good  jury  ;  wherefore  for  good  or  ill  he  puts  himself  upon  you  ;  and  so 


'^ Magna  Charta  (9  H.  3.)  c.  29.  No  freeman  shall  be  taken,  or  imprisoned,  or  be 
disseised  of  his  freehohl,  or  liberties,  or  free  customs,  or  be  outlawed,  or  exiled,  or  any 
otherwise  destroyed;  nor  we  will  not  pass  upon  him  nor  condemn  him,  but  by  lawful 
judgement  of  his  peers,  or  by  the  law  of  the  land.  We  will  sell  to  no  man,  we  will 
not  deny  or  defer  to  any  man  either  justice  or  right. 


SECT.  I.]  '  NORRIS    V.    BUTTINGII.VM.  55 

we  enjoin  you  b\'  virtue  of  j'our  oath,  tell  us  whether  Lord  Hugh  ravished 
the  aforesaid  woman  or  not. 

27ie  Tioelve.  We  sa}-  that  she  was  ravished  b}'  force  by  Lord  Hugh's 
men. 

The  Justiciar.     "Was  Hugh  consenting  to  the  act  or  not? 

The  Twelve.     No.. 

The  Justiciar.     Did  they  know  her  carnally  ? 

The  Twelve.     Yes. 

The  Justiciar.     Was  the  woman  unwilling  or  consenting? 

The  Tivelve.     Consenting.^ 

The  Justiciar.     Lord  Hugh,  since  they  acquit  you,  we  acquit  you. 


FABIAN  V.  GODFREY. 
Wiltshire  Eyre.     1198. 
[Abbreviatio  Placitorum,  17.] 

Fabian  appealed  Godfrey  Spileraan's  son  for  that  he  and  Roger  his 
son  and  Humphre}'  his  man  wickedly  at  night  burned  his  dwelling 
house ;  and  this  he  offers  to  prove  against  him  as  of  his  own  sight,  as 
the  court  of  our  lord  the  king  shall  determine,  considering  that  he  is  a 
man  over  age.     And  Godfrey  defends  for  himself  and  his  fellows. 

The  jurors  being  asked,  said  that  they  do  not  believe  that  Godfrey 
or  any  of  his  fellows  did  this;  and  that  Fabian  is  a  man  who  often  goes 
out  of  his  head.'^ 


NORRIS  V.  BUTTINGHAM. 

Strafford   Eyre.     1198. 

[1  Rotuli  Curia  Regis,  205.] 

The  jurors  say  that  William  Norris  appealed  William  de  Buttinglmm 
and  Robert  his  son  for  that  in  the  peace  of  the  king,  wickedly  and  in 
hamsoke  they  robbed  from  him  six  shillings  and  sixpence  of  his  chat- 
tels, and  robbed  from  his  possession  twenty-four  lambs,  and  broke  the 
doors  of  his  house  in  his  possession,  and  [robbed  from  him]  chattels 
to  the  value  of  ten  shillings ;  and  this  he  otfers  to  prove  by  his  bbdy  as 
the  court  shall  consider. 

William  and  Robert  defend  all,  word  by  word  ;  and  they  say  that 
Maurice  held  of  the  said  William  in  fee ;  and  at  his  death  William 
entered  into  his  fee,  and  Alexander  Fitz-Philip  hired  of  him  in  the  fee 

1  Credo  quod  deberet  hic  qicod  famen  post  de/uif. — Rep. 

2  For  cases  on  the  modern  law  of  Arson,  see  Chap.  XVIII.  —  Ed. 


56  LUKE   DE  BROCHESHEVET  V.  WALTER   DE    MAREN.        [CIIAP  II. 

a  pasture  for  twent^'-flve  sheep.  And  afterwards  this  William  Norris 
came  to  that  fee  and  carried  away  the  lambs  and  put  them  in  another 
fee  and  detained  them;  so  that  the  said  William  de  Buttingham  and 
Robert  his  son  went  to  William  Fitz-Gerard,  serjeant  of  the  hundred, 
and  through  him  regained  possession  of  the  sheep  b}-  replevin.  And 
the  Serjeant  testified  to  this  fact. 

And  the  whole  county  testify  that  men  are  thus  appealed  according 
to  their  custom. 

It  is  considered  that  the  appeal  against  them  is  null.  Judgment: 
William  Norris  is  amerced  for  a  false  appeal,  and  William  and  Robert 
are  acquitted.^ 


2>^ 

REX  V.  HUGH. 
WiLTsiiiKE  Eyre.     1198. 
[Abhreviatio  Placitorum,  19.] 

Robert  de  Lucy  was  robbed  by  Hugh  Brien's  brother  and  Nicholas 
Fitz  priest  and  Elias  a  relative  of  Brien's  wife,  and  many  others  whom 
the  jurors  [are  unable?]  to  enumerate,  in  time  of  war;  and  the  robbers 
have  not  come  to  the  peace  of  our  lord  the  king.  And  Brien  is  out- 
lawed. And  Hugh  his  brother  and  Nicholas  Fitz-priest  and  Elias  the 
relative  of  Brien's  wife  are  to  be  sought  tlirough  the  county  ;  and 
unless  they  appear  let  them  be  judged  by  law  of  the  county.^ 


LUKE  DE  BROCHESHEVET  v.  WALTER  DE  MAREN. 
Hertford  Eyre.     1198. 
[1  Rotuli  Curice  Regis,  160.] 

The  jurors  say  that  Luke  of  Brocheshevit  appealed  Walter  of  Maren 
and  Godfrey  Trenchevent  of  the  theft  of  a  cow.  Walter  was  essoined 
as  beyond  sea.  And  Godfrey  does  not  come.  His  pledge  was  William 
of  Maren  ;  so  he  is  in  merc\'. 

They  say  likewise  that  the  said  Luke  appealed  the  said  Walter  for 
that  in  the  peace  of  the  king,  and  in  felony  he  stole  his  wife  Felicia 
and  his  seal  and  his  chattels  to  the  value  of  one  hundred  shillings ;  and 
this  he  offers  to  prove  as  the  court  shall  consider.  It  is  to  await  the 
coming  of  the  justices.^ 

1  For  cases  on  the  modern  law  of  Burglary,  see  Chap.  XVIII.  —  Ed. 

2  For  cases  on  the  modern  haw  of  Robbery,  see  Chap.  XIV.,  Sect.  XVII.  —  Ed. 
8  For  cases  on  the  modern  law  of  Larceny,  see  Chap.  XIV.  —  Ed. 


SECT.  II.]  REX   V.    COOK.  57 

3V 

HUGH  OF   RUPERES  v.   JOHN   OF  ASHBY. 

Lincolnshire  Eyre.     1202. 
[1  Selden  Soc.  14.] 

Hugh  of  Ruperes  appeals  John  of  Ashby  for  tliat  he  in  the  king's 
peace  and  wickedly  came  into  his  meadows  and  depastured  them  with 
his  cattle,  and  this  he  offers,  etc.  And  John  comes  and  defends  all  of 
it.  And  whereas  it  was  testified  by  the  sheriff  and  the  coroners,  that 
in  the  first  instance  [Hugh]  had  appealed  John  of  depasturing  his 
meadows  and  of  beating  his  men,  and  now  wishes  to  pursue  his  appeal 
not  as  regards  his  men,  but  only  as  regards  his  meadows,  and  whereas 
an  appeal  for  depasturing  meadows  does  not  appertain  to  the  crown  of 
our  lord  the  king,  it  is  considered  that  the  appeal  is  null,  and  so  let 
Hugh  be  in  mercy  and  John  be  quit. 

Hugh  is  in  custody,  for  he  cannot  find  pledges. 


SECTION   II. 


Misdemeanors. 

REX  V.  COOK. 

Middlesex  Sessions.     1696. 

[Reported  Comberbach,  382.] 

Upon  an  indictment  setting  forth  that  Sir  John  Friend  and  Sir  "Wil- 
liam Perkins  being  attainted  and  about  to  be  executed  at  Tyburn  for 
high  treason,  etc.,  the  defendants,  conspiring  and  intending  (as  much 
as  in  them  lay)  to  justifj-,  or  at  least  to  extenuate  and  lessen  their 
crimes,  and  to  induce  his  majesty's  subjects  to  believe  that  they  died 
rather  as  martyrs  than  as  traitors,  and  to  incite  the  king's  subjects  to 
commit  the  like  treasons,  they  did  take  upon  them  to  absolve,  and  did 
pronounce  a  form  of  absolution  of  them,  the  said  Sir  William  Perkins 
and  Sir  John  Friend,  without  any  repentance,  or  any  signs  of  repent- 
ance b}'  them  given. 

It  was  proved  that  the  defendants  asked  the  criminals  the  several 
questions  directed  by  the  rubrick  in  the  office  of  visitation  of  the  sick, 
and  Mr.  Cook  pronounced  the  words  of  absolution  of  one  of  the 
traitors,  Mr.  Snatt  and  one  Mr.  Collier  (who  is  not  now  indicted)  la}'- 
ing  their  hands  upon  his  head,  and  after  the  words  pronounced  saying 
Amen  ;  and  Mr.  Collier  pronounced  the  words  as  to  the  other  traitors, 
the}'  all  three  laying  on  their  hands,  etc. 

It  was  proved  that  the  defendants  were  earnestl}'  requested  b}-  Sir 
William  Perkins  and  Sir  John  Friend  to  assist  them  at  the  place  of 


58  STATE   V.    JACKSON.  [CHAP.  II. 

execution ;  and  therefore  the  jur}'  were  directed  to  acquit  them  of  the 
conspiracy,  though  the  Attorney  General  said  the  indictment  was  not 
for  conspiracy,  and  consjm-antes  was  put  adjectively  only  to  introduce 
the  other  matter,  and  therefore  was  not  material. 

And  Holt  [L.  C.  J.]  directed  the  jury  that  this  proceeding  of  the 
defendants  was  certainly  scandalous  and  irregular;  for  if  the  criminals 
had  before  made  a  private  confession,  the  absolution  should  have  been 
private  likewise  ;  but  if  they  would  give  a  public  absolution,  they  ought 
to  have  required  as  public  a  confession,  and  particularly  with  respect 
to  those  crimes  for  which  they  were  attainted,  being  so  notorious,  etc. 
However,  if  the  jury  were  of  opinion  that  they  did  it  only  ignorantly 
and  by  mistake  (in  which  case  it  is  properly  conusable  in  the  Spiritual 
court),  then  to  acquit  them  ;  but  if  they  did  it  with  a  design  to  affront 
the  government,  and  to  vilify  the  justice  of  the  nation,  then  to  find 
them  guilty. 

But  at  the  instance  of  the  defendant's  counsel  it  was  directed  to  be 
found  specially  that  Snatt  laid  his  hand  on  the  head,  and  was  assistant 
while  the  other  pronounced  the  words  of  absolution,  and  afterwards 
Snatt  said  Amen  (it  being  laid  quod  pronnntiaverunt). 

And  accordingly  the  jury  acquitted  them  of  the  conspiracy,  and  found 
Cook  guilty  of  the  rest ;  and  as  to  Snatt,  ut  svpra} 


3  ^ 

STATE  V.  JACKSON. 

Supreme  Judicial  Court  of  Maine.    1881. 
[Reported  73  Maine,  81.] 

LiBBET,  J.  This  is  an  indictment  against  the  defendant  for  unlaw- 
fully and  wilfully  attempting  to  influence  a  qualified  voter  to  give  in 
his  ballot  at  a  municipal  election,  in  the  city  of  Rockland,  by  offering 
and  paying  him  money  therefor. 

The  offence  charged  is  not  within  R.  S.,  c.  4,  §  67. 

Is  bribery  at  a  municipal  election  a  misdemeanor  at  common  law  in 
this  state?  It  is  claimed  by  the  learned  counsel  for  the  defendant, 
that  it  is  not  recognized  as  such  in  this  country.  We  think  it  is.  It 
was  an  offence  at  common  law  in  England.  1  Russell  on  Crimes,  154  ; 
Plympton's  Case,  2  Ld.  Raym.  1377  ;  Rex  v.  Pitt,  3  Burr.  1335. 

The  common  law  of  England  upon  the  subject  of  bribery,  fraud  and 
Corruption  at  elections,  is  generally  adopted  as  the  common  law  in 
this  country.  Comm.  v.  Silsbeee,  9  Mass.  417;  Comm.  v.  Hoxey,  16 
Mass.  385  ;  1  Bish.  Crim.  Law,  355  ;  Walsh  v.  The  People,  65  111.,  58  ; 
State  y'.  Purdy,  36  Wis.  224  ;  State  v.  Collier,  72  Mo.  13;  People  /'. 
Thornton,  32  Hun  (N.  Y.)  456  ;  Comm.  of  Penn.  v.  McHale,  97  Pa.  397. 

Bishop  in  his  work  on  Criminal  Law,  vol.  1,  §  922,  says  :  "  We  see  it 
to  be  of  the  highest  importance  that  persons  be  elected  to  carry  on  the 

1  See  Rex  v.  Noel,  Comb.  362  ;  Penns.  v.  Morrison,  Add.  (Pa.)  274.  —  Ed. 


•i 


.■< 


J 


-.»^ 


SECT.  II.] 


COMMONWEALTH    V.    SILSDEE. 


government  in  its  various  departments,  and  that  in  evei-y  case  a  suit- 
able choice  be  made.  Therefoi;e  any  act  tending  to  defeat  these 
objects,  as  forcibly  or  unlawfully  preventing  an  election  being  held, 
bribing  or  corruptly  influencing  an  elector,  casting  more  than  oiie  vote,' 
is  punishable  under  the  criminal  common  law." 

Paxon,  J.,  in  the  opinion  of  the  court  in  Cornm.  v.  McHale,  .wpra, 
says:  "We  are  of  opinion  that  all  such  crimes  as  especially  affect 
public  society,  are  indictable  at  common  law.  The  test  is  not  whether 
precedents  can  be  found  in  the  books,  but  whether  they  affect  the 
l)ublic  policy  or  economy.  It  needs  no  argument  to  show  that  the  acts 
charged  in  these  indictments  are  of  this  character.  They  are  not  only 
offences  which  affect  public  society,  but  they  affect  it  in  the  gravest 
manner.  An  offence  against  the  freedom  and  purity  of  the  election 
is  a  crime  against  the  nation.  It  strikes  at  the  foundation  of  republi- 
can institutions.  Its  tendency  is  to  prevent  the  expression  of  the  will 
of  the  people  in  the  choice  of  rulers,  and  to  weaken  the  public  confi- 
dence in  elections.  When  this  confidence  is  once  destroyed,  the  end 
of  popular  government  is  not  distant.  Surely  if  a  woman's  tongue 
can  so  far  affect  the  good  of  society  as  to  demand  her  punishment  ifs  a 
common  scold,  the  offence  which  involves  the  right  of  a  free  people  to 
choose  their  own  rulers  in  the  manner  pointed  out  by  law,  is  not  be- 
neath the  dignity  of  the  common  law,  nor  beyond  its  power  to  punish. 
Tlie  one  is  an  annoyance  to  a  small  portion  of  the  body  politic,  the 
otlier  shakes  the  social  fabric  to  its  foundations." 

We  have  no  doubt  that  bribery  at  a  municipal  election  is  a  misde- 
meanor punishable  liy  the  common  law  of  this  state. 

An  attempt  to  bribe  or  corruptly  influence  the  elector,  although  not 
accomplished,  will  submit  the  off"ender  to  an    indictment.      State  v.  ^ 
Ames,  64  Maine,  386.  u 

But  admitting  that  attempting  to  bribe  an  elector  at  a  municipal      L 
election  is  an  ofl^ence  at  common  law,  it  is  claimed   by  the  counsel  for      f 
the  defendant  that  the  indictment  in  this  case  does  not  properly  charge      ' 
such  offence.^ 

Exceptions  overruled,  Jud<jment  for  the  State. 

^7 


?■ 


COMMONWEALTH   v.   SILSBEE. 
^  Supreme  Judicial  Court  of  Massachusetts.     1812. 

{Reported  9  Massachusetts,  417.] 

The  indictment  charged  that  the  defendant,  being  admitted  as  a 
legal  voter  at  the  town  meeting  holden  on  the  eleventh  day  of  Marcli, 
1811,  at  Salem,  for  the  choice  of  town  officers,  "did  then  and  there 

1  In  the  subsequent  portion  of  his  opinion  the  learned  judge  held  that  this  claim 
was  unfounded.  —  Ed. 

2  Ace  Taylor's  GW  12  Mod.  314  ;  Reg.  ..  Lancaster,  16  Cox,  C.  C.  637  ;  State  . 
Davis,   2  Peunew.  (Del.)  139  ;  State  v  .  Ellis,  33  N.  J.  Law.  102. 


y 


:^ 


^ 


'^^'COMMONWEALTH   V.    SILSBEE.  [CHAP.  II. 

^wilfully,  franfluUntly,  knowingly,  find  designedly  give  in  more  than 
Y  one  vote  for  the  choice  of  selectmen  for  said  town  of  Salem  at  one 

ttinie  of  balloting  ;  to  the  great  destruction  of  the  freedom  of  elections, 
to  the  great  prejudice  of  the  rights  of  the  other  qualified  voters  in  said 
town  of  Salem,  to  the  evil  example  of  others  in  like  case  to  offend, 
^  and  against  the  peace  and  dignity  of  the  Commonwealth  aforesaid,  and 
5      the  law  of  the  same  in  such  case  made  and  provided." 

After  conviction  the  defendant  moved  in  arrest  of  judgment,  on  the 
ground  of  the  insufficiency  of  the  indictment. 

Dane,  for  the  defendant.  Here  is  no  offence  charged.  The  defend- 
ant put  more  than  one  vote  for  selectmen  into  the  box  at  one  time  ; 
and  he  might  well  do  this,  since  not  less  than  three  selectmen  were  to 
be  voted  for. 

The  offence,  if  any  is  described  in  the  indictment,  cannot  be  such 
by  the  common  law,  since  that  law  knows  nothing  of  the  office  of 
selectmen.  If  the  offence  is  created  by  statute,  the  indictment  ought 
to  conclude  contra  formam  statuti ;  and  if  the  conclusion  of  this  be 
considered  so,  it  belongs  to  the  government  to  produce  the  statute 
against  which  the  offence  was  committed.  But  none  such  can  be 
found  ;  and  the  usual  punishment  applied  to  the  act,  that  of  rejecting 
the  party's  vote,  is  probably  all  that  the  government  thought  necessary 
or  convenient. 

By  the  Statute  of  1795,  c.  55,  a  fine  not  exceeding  twenty  nor  less 
)      than  ten  dollars  was  provided  for  such  as  should  give  in  more  than 
^      one  vote  in  the  election  of  State  officers.     It  appears  that  the  Legisla- 
-\       ture  did  not  contemplate  that  offence,  tliough  of  an  higher  grade  than 
\       that  here  intended  to  be  prosecuted,  worthy  of  the  severe  punishfcient 
)      which  may  by  the  common  law  be  imposed  on  misdemeanors.     Indict- 
ments of  this  kind  are  of  late  origin,  which  is  an  argument  that  they 
do  not  lie  at  common  law. 

No  fraud  is  alleged  in  the  indictment ;  for  as  to  the  general  words 
"  fraudulently,"  &c.,  they  have  no  operation,  being  merely  formal. 

The  Solicitor- General  insisted  that  this  was  a  fraud,  npon  which  the 
common  law  would  animadvert.'  It  was  a  direct  infringement  of  the 
highest  political  rights  of  others.  The  indictment,  as  to  its  form,  is 
conformed  to  the  provisions  of  the  statute  of  1800,  c.  74,  respecting 
the  votes  to  be  given  for  the  governor,  &c.  of  the  Commonwealth. 
The  mischief  is  growing  in  various  parts  of  the  Commonwealth,  and 
unless  restrained  will  shortly  destroy  the  purity  of  our  elections,  and 
with  that  will  go  our  most  valued  political  institutions. 

Curia.  There  cannot  be  a  doubt  that  the  offence  described  in  the 
indictment  is  a  misdemeanor  at  common  law.  It  is  a  general  prin- 
ciple that  where  a  statute  gives  a  privilege,  and  one  wilfully  violates) 
such  privilege,  the  common  law  will  punish  such  violation.  In  towui 
meetings  every  qualified  voter  has  equal  rights,  and  is  entitled  to  give' 
one  vote  for  every  officer  to  be  elected.  The  person  who  gives  more 
infringes   and  violates  the  rights  of  the    other  voters,  and  for  this 


SECT.  II.]  EEX   V.   IVENS.  61 

offence  the  common  law  gives  the  indictment;  and  the  conclusion  of 
the  one  at  bar  is  proper  for  tlie  case. 

The  defetidant  loas  adjudged  to  pay  a  fine  often  dollars 
with  the  costs  of  prosecution.^ 


REX   V.   JONES. 
King's  Bench.     1740. 
{Reported  2  Strange,  1146.] 

He  was  indicted  for  not  taking  upon  liim  the  office  of  overseer  of  the 
poor,  upon  a  regular  appointment ;  and  on  demurrer  objected,  that  as 
he  was  to  take  no  oath,  and  the  43  Eliz.  c.  2,  liad  inflicted  pecuniary 
penalties  for  neglect  of  duty  to  be  recovered  in  a  summary  way,  he 
could  not  be  indicted. 

Sed  per  Curiam,  those  penalties  are  for  neglect  of  duty  when  he  is 
the  officer,  whereas  this  indictment  says  he  has  obstinately  refused  to 
take  the  office  upon  him  :  the  disobeying  an  act  of  Parliament  is  indict- 
able upon  the  principles  of  the  common  law. 

Judgment  for  the  KingJ^ 


3  7. 

REX   V.    IVENS. 
Oxford   Circuit.     1835. 

[Reported  7  Car.  c^  ^ayne,  213.] 

Indictment  against  the  defendant,  as  an  innkeeper,  for  not  receiv- 
ing Mr.  Samuel  ProI)yn  Williams  as  a  guest  at  his  inn,  and  also  for 
refusing  to  take  his  horse.  The  first  count  of  the  indictment  averred 
that  the  prosecutor  had  offered  to  pay  a  reasonable  sum  for  his  lodg- 
ings ;  and  the  first  and  second  counts  both  stated  that  there  was  room 
in  the  inn,  Tlie  third  count  omitted  these  allegations,  and  also  omitted 
all  mention  of  tlie  horse.  The  fourth  count  was  similar  to  the  third, 
but  in  a  more  general  form.     Plea  —  Not  guilt}-. 

It  was  opened  by  Whitmore,  for  the  prosecution,  that  the  defendant 
kept  the  Bell  Inn,  at  Chepstow,  and  that  the  prosecutor  Mr.  Williams 
had  gone  there  on  horseback,  on  the  night  of  Sunday  the  14th  of  April ; 
and  that  the  defendant  and  his  wife  both  refused  him  admittance  into 
the  inn. 

Godson,  for  the  defendant.  —  Does  your  Lordship  think  that  an 
indictment  lies  against  an  innkeeper  for  refusing  to  receive  a  guest? 

1  Ace.  Com.  V.  Hoxey,  16  Mass  385. 

2  See  Huugerford's  Case,  11  Mod.  142. 


62  REX   V.    IVENS.  [chap.  II. 

I  know  that  an  action  may  be  brought  against  him  if  he  does  so  ;  and 
such  an  action  was  brought  against  an  innkeeper  at  Lancaster  a  few 
years  ago.  This  is  only,  at  most,  a  private  injury  to  Mr.  WilHams, 
and  not  an  offence  against  the  pubhc. 

Coleridge,  J.  There  can  be  no  doubt  that  this  indictment  is  sus- 
tainable in  point  of  law.  Mr.  Serjeant  Hcnoklns  distinctly  lays  it  down 
that  an  indictment  lies  for  this  offence.^ 

Coleridge,  J.  (in  summing  up).  The  facts  in  this  case  do  not 
appear  to  be  much  in  dispute  ;  and  though  I  do  not  recollect  to  have 
ever  heard  of  such  an  indictment  having  been  tried  before,  the  law 
applicable  to  this  case  is  this  :  —  that  an  indictment  lies  against  an 
innkeeper  who  refuses  to  receive  a  guest,  he  having  at  the  time  room 
in  his  house ;  and  either  the  price  of  the  guest's  entertainment  being 
tendered  to  him,  or  such  circumstances  occurring  as  will  dispense  with 
that  tender.  This  law  is  founded  in  good  sense.  The  innkeeper  is  not 
to  select  his  guests.  He  has  no  right  to  say  to  one,  you  shall  come 
into  my  inn,  and  to  another  you  shall  not,  as  every  one  coming  and 
conducting  himself  in  a  proper  manner  has  a  right  to  be  received  ;  and 
for  this  purpose  innkeepers  are  a  sort  of  public  servants,  they  having 
in  return  a  kind  of  privilege  of  entertaining  travellers,  and  supi)lying 
them  with  what  they  want.  It  is  said  in  the  present  case  that  Mr. 
Williams,  the  prosecutor,  conducted  himself  improperly,  and  therefore 
ought  not  to  have  been  admitted  into  the  house  of  the  defendant.  If 
a  person  came  to  an  inn  drunk,  or  behaved  in  an  indecent  or  improper 
manner,  I  am  of  opinion  that  the  innkeeper  is  not  bound  to  receive  him. 
You  will  consider  whether  Mr.  Williams  did  so  behave  here.  It  is 
next  said  that  he  came  to  tlie  inn  at  a  late  hour  of  the  night,  when 
probably  the  family  were  gone  to  bed.  Have  we  not  all  knocked  at  inn 
doors  at  late  hours  of  the  night,  and  after  the  family  have  retired  to 
rest,  not  for  the  purpose  of  annoyance,  but  to  get  the  people  up?  In 
this  case  it  further  appears  that  the  wife  of  the  defendant  has  a  con- 
versation with  the  prosecutor,  in  which  she  insists  on  knowing  his 
name  and  abode.  I  think  that  an  innkeeper  has  no  right  to  insist  on 
knowing  those  particulars  ;  and  certainly  you  and  I  would  think  an 
innkeeper  very  impertinent,  who  asked  either  the  one  or  the  other 
of  any  of  us.  However,  the  prosecutor  gives  his  name  and  residence; 
and  supposing  that  he  did  add  the  words  "  and  be  damned  to  you,"  is 
that  a  sufficient  reason  for  keeping  a  man  out  of  an  inn  who  has 
travelled  till  midnight?  I  think  that  tlie  prosecutor  was  not  guilty 
of  such  misconduct  as  would  entitle  the  defendant  to  shut  him  out 
of  his  house.  It  has  been  strongly  objected  against  the  prosecutor 
by  Mr.  Godson,  that  he  had  been  travelling  on  a  Sunday.  To  make 
that  argument  of  any  avail,  it  must  be  contended  that  travelling  on 
a  Sunday  is  illegal.  It  is  not  so,  although  it  is  what  ought  to  be 
avoided  whenever  it  can  be.     Indeed  there  is  one  thing  which  shows 

1  The  evidence  is  omitted.  —  Ed. 


SECT.  II.] 


CROUTHER'S    CASE. 


03 


6^ 


that  travelling  on  a  Sunday  is  not  illegal,  which  is,  that  in  many  places 
you  pay  additional  toll  at  the  turnpikes  if  you  pass  through  them  on 
a  Sunday,  by  which  the  legislature  plainly  contemplates  travelling  on 
a  Sunday  as  a  thing  not  illegal.     I  do  not  encourage  travelling  on  Sun- 
days, but  still  it  is  not   illegal.     With   respect  to  the  non-tender  of, 
money  by  tiie  prosecutor,  it  is  now  a  custom  so  universal  with  inn- 
keepers, to  trust  that  a  person  will  pay  before  he  leaves  an  inn,  that 
it  cannot  be  necessary  for  a  guest  to  tender  money  before  he  goes  into 
an  inn;  indeed,  in  the  present  case  no  objection  was  made  that  Mr 
Williams  did  not  make  a  tender ;  and  they  did  not  even  insinuate  that, 
they  had  any  suspicion  that  he  could  not  pay  for  whatever  entertain- 
ment might  be  furnished  to  him.     I  think,  therefore,  that  that  cannot 
be  set  up  as  a  defence.     It  however  remains  for  me  next  to  consider 
the  case  with  respect  to  the  hour  of  the  night  at  which  Mr.  Williams 
applied  for  admission  ;  and  the  opinion  which  I  have  formed   is,  that 
the  lateness  of  the  hour  is  no  excuse  to  the  defendant  for  refusing  to 
receive  the  prosecutor  into  his  inn.     Why  are  inns  established?     For 
the  reception  of  travellers,  who  are  often  very  far  distant  from  their 
own  homes.     Now,  at  what  time  is  it  most  essential  that   travellers 
should  not  be  denied  admission  into  the  inns?     I  should  say  when  they 
are  benighted,  and  when,  from  any  casualty,  or  from  the  badness  of 
the  roads,  they  arrive  at  an  inn  at  a  very  late  hour.    Indeed,  in  former 
times,  when  the  roads  were  much  worse,  and  were  much  infested  with 
robbers,  a  late  hour  of  the  night  was  the  time,  of  all  others,  at  which 
the  traveller  most  required  to  be  received  into  an  inn.     I  think,  there- 
fore,  that   if  the    traveller  conducts   himself  properk,   the  innkeeper 
is  bound  to  admit  him,  at  whatever  hour  of  the  night  he  may  arrive. 
The  only  other  question  in  this  case  is,  whether  the  defendant's  inn 
was  full.     There  is  no  distinct  evidence  on  the  part  of  the  prosecution 
that  it  was  not.     But  I  think  the  conduct  of  the  parties  shews  that  the 
inn  was  not  full;  because,  if  it  had  been,  there  could  have  been  no  use 
in  the  landlady  asking   the  prosecutor  his  name,  and  saying,  that  if 
he  would  tell  it,  she  would  ring  for  one  of  the  servants. 

Verdict  Guilty. 
Park,  J.,  sentenced  the  defendant  to  pay  a  fine  of  20s. ^ 


p 


^ 


<' 


? 


P 


^ 


CROUTHER'S   CASE. 

Queen's  Bench.     1598. 

[Rejwrted  Croke  Eliz.  654.] 

Croutheu  was  indicted,  for  that  a  burglary  was  committed  in  the 

night  by  persons   unknown,  and  J.  S.  gave  notice  thereof  unto  him. 

being  then   constable,  and  required  him  to  make  hue  and  cry,  and  he 

^  See  Rex  v.  Ta\'lor,  Willes,  538  note;  Reg  v.  James,  2  Den.  C. 


^ 


'C^ 


y  ■/. 


COMMONWEALTH    V.    CALLAGHAN, 


[CHAP.  II. 


refused,  etc.  Exception  was  taken  to  the  matter  of  the  indictment, 
because  it  hath  been  adjudged  that  an  hundred  shall  not  be  charged 
with  a  robbery  committed  in  the  night,  because  tliey  are  not  bound  to 
give  attendance  ;  no  more  ought  a  constable  to  do  it  in  tlie  night.  But 
all  the  Court  held  the  indictment  to  be  good,  notwithstanding ;  for  it  is 
not  like  to  the  case  of  an  hundred  ;  because  it  is  the  constable's  dutj-, 
upon  notice  given  unto  him,  presently  to  pursue.^  And  it  was  said 
that  in  ever}'  case  where  a  statute  prohibits  anything,  and  doth  not 
limit  a  penalt}',  the  party  offending  therein  may  be  indicted,  as  for  a 
contempt  against  the  statute.^ 

Another  exception  was  taken,  because  he  did  not  shew  the  place  of 
the  notice ;  and  that  was  held  to  be  material.  Whereupon  the  party 
was  discharged. 

COMMONWEALTH  v.  CALLAGHAN. 
General  Coukt  of  Virginia.     1825. 

[Rejiorted  2  Virginia  Cases,  460.] 

This  was  a  case  adjourned  by  the  Superior  Court  of  Law  of  Alleghany 
County.  The  case  itself  is  fully  set  forth  in  the  following  opinion  of 
the  Genei-al  Court,  delivered  by  Barbour,  J.  :  — 

This  is  an  adjourned  case  from  the  Superior  Court  of  Law  for  the 
County  of  Alleghany. 

It  was  an  information  filed  against  Callaghan  and  Hollowa}',  two  of 
the  justices  of  Alleghany,  alleging  in  substance  the  following  charge : 
That  at  a  court  held  for  the  count\-  of  Alleghany,  there  was  an  election 
for  the  office  of  commissioner  of  the  revenue  and  of  clerk  of  said  court, 
when  the  defendants  were  both  present,  and  acting  in  their  official 
character  as  magistrates  in  voting  in  said  election  ;  that  the  defendant 
Callaghan,  in  said  election  for  commissioner  of  the  revenue,  wickedly 
and  corruptly  agreed  to  vote,  and  in  pursuance  of  said  corrupt  agree- 
ment did  vote,  for  a  certain  W.  G.  Holloway,  to  be  said  commissioner, 
in  consideration  of  the  promise  of  the  defendant  Holloway-  that  he 
would  vote  for  a  certain  Oliver  Callaghan  to  be  clerk  of  said  court ; 
and  that  the  defendant  Holloway  in  the  said  election  of  clerk  wickedly 
and  corruptly  agreed  to  vote,  and  in  pursuance  of  said  corrupt  agree- 
ment did  vote,  for  a  certain  Oliver  Callaghan  to  be  said  clerk,  in  con- 
sideration of  the  promise  of  the  defendant  Callaghan  that  he  would  vote 
for  the  aforesaid  W.  G.  Holloway  to  be  commissioner.  To  this  infor- 
mation the  defendants  demurred  generally,  and  there  was  a  joinder  in 
the  demurrer.  The  Superior  Court  of  Law  of  Alleghany,  with  the 
assent  of  the  defendants,  adjourned  for  novelty  and  difficulty  to  this 
court  the  questions  of  law  arising  upon  the  demurrer  to  the  informa- 
tion, and  particularly  the  following,  namely  :  — 

1  See  Keg.  v.  Wiatt,  11  Mod.  53 ;  State  v.  Haywood,  3  Jones  (N.  C),  399. 
8  See  State  v.  Parker,  91  N.  C  650.  — Ed. 


SECT.  Il] 


COMMONWEALTH   V.    CALLAGHAN. 


65 


1.  Is  there  an}*  offence  stated  in  said  information  for  whieli  an  infor- 
mation or  indictment  will  lie? 

2.  Is  the  offence  charged  in  the  said  information  within  the  true< 
intent  and  meaning  of  the  Act  of  the  General  Assembly  entitled  ''  An 
Act  against  buying  and  selling  offices,"  passed  Oct.  19,  17D2,  in  page 
559,  1st  vol.  Rev.  Code  of  1819? 

3.  If  the  offence  be  within  the  said  act,  is  the  information  filed  in 
this  case  a  good  and  sufficient  information? 

The  first  and  second  questions,  for  the  sake  of  convenience,  will  be 
considered  together. 

It  is  proper  to  premise  that  a  general  demurrer  admits  the  truth  of 
all  facts  which  are  well  pleaded  ;  there  being  such  a  demurrer  in  this 
case,  and  the  information  distinctly  alleging  that  the  defendants,  in 
giving  their  votes  respectively,  acted  wickedly  and  corruptly,  such 
wicked  and  corrupt  motive  will  be  considered  throughout  as  forming  a 
part  of  the  case. 

The  court  are  unanimously  of  opinion  that  the  case  as  stated  in  the 
information  is  not  within  the  true  intent  and  meaning  of  the  Act  of 
Assembly  referred  to  in  the  second  question.  That  act  embraces  two 
descriptions  of  cases:  1.  The  sale  of  an  office  or  the  deputation  of  an 
office  ;  2.  The  giving  a  vote  in  appointing  to  an  office  or  the  deputa- 
tion of  office.  It  would  be  within  the  latter  description  that  this  case 
would  fall,  if  within  either  ;  but  the  court  are  decidedly  of  opinion  that 
this  case  does  not  fall  within  this  description,  because  the  plain  con- 
struction of  the  statute  is  that  the  penalties  which  it  denounces  are 
incurred  onl}-  by  those  who  receive  or  take,  either  directh*  or  indirectly, 
any  money,  profit,  &c.,  or  the  promise  to  have  any  money,  pi'ofit,  &c.,' 
to  their  own  use  or  for  their  own  benefit.  In  this  case  it  appears  from 
the  information  that  the  promise  of  each  of  the  defendants  to  the  other, 
which  constituted  the  consideration  of  the  vote  of  that  other,  and  the 
vote  given  in  consequence  of  such  promise,  inured  not  to  the  benefit  of 
the  defendants  or  either  of  them,  but  to  the  benefit  of  others.  If  indeed 
it  had  been  alleged  in  the  information  that  the  persons  for  whom  the 
votes  were  given,  were,  if  elected,  to  have  held  them  upon  any  agree- 
ment, that  the  defendants  should  in  anv  degree  participate  in  their 
profits  or  receive  from  the  holders  of  them  any  benefit  or  advantage, 
the  case  would  have  been  different,  for  then  the  defendants  would  have 
received  a  profit  indirectly,  and  thus  would  have  fallen  within  the  stat- 
ute ;  but  there  is  no  such  allegation. 

The  court  being  thus  of  opinion  that  this  case  was  not  embraced  by^ 
the  statute,  but  at  the  same  time  considering  that  that  svstem  of  crim- 
inal jurisprudence  must  be  essentially  defective  which  had  provided  no 
punishment  for  acts  such  as  ai'e  charged  in  the  information,  and  which 
merit  the  reprehension  of  all  good  men,  were  led  to  inquire  whether  the 
acts  charged  in  the  information  did  not  constitute  an  offence  at  common 
law  :  and  the}'  are  of  opinion  that  they  do. 

In  relation  to  those  offences  which  rise  to  the  grade  of  felony  there 


^66 


COMMONWEALTH   V.    CALLAGHAN.  [CHAP.  II. 


-^ 


^ 


is  usually,  particularly  in  the  designation  of  them  by  name,  an  accuracy 
in  the  definition  ;  as,  for  example,  murder,  burglary,  arson,  &c.,  in 
each  of  which  the  term  ex  vi  termini  imports  the  constituent  of  the 
offence  ;  but  in  the  general  classification  of  crimes  whatever  is  not 
felony  is  misdemeanor.  In  relation  to  these,  then,  they  are  not  only 
numerous  but  indefinitely  diversified,  comprehending  every  act  which, 
whilst  it  falls  below  the  grade  of  felony,  is  either  the  omission  of  some- 
thing commanded  or  the  commission  of  something  prohibited  by  law. 
As  to  these  the  law  can  do  no  more  than  lay  down  general  principles, 
and  it  belongs  to  the  courts  of  the  country  to  apply  those  principles  to 
the  particular  cases  as  they  occur,  and  to  decide  whether  the}'  are  or 
are  not  embraced  by  them.  Thus  the  law,  as  a  general  proposition, 
prohibits  the  doing  of  any  act  which  is  contra  bonos  mores.  The  par- 
ticular acts  which  come  up  to  this  description  it  is  impossible  to  include 
in  any  precise  enumeration  ;  they  must  be  decided  as  they  occur,  b}^ 
applying  this  principle  to  them  as  a  standard.  Thus,  again,  it  is  now 
estaljlished  as  a  principle  that  the  incitement  to  commit  a  crime  is  itself 
criminal  under  some  circumstances.  6  East,  464 ;  2  East,  5.  As  for 
example,  the  mere  attempt  to  stifle  evidence,  though  the  persuasion 
should  not  succeed.  Cases  of  this  kind  may  be  as  various  as  the  vary- 
ing combinations  of  circumstances. 

To  come  more  immediately  to  the  present  case,  we  hold  it  to  be  a 
sound  doctrine  that  the  acceptance  of  ever}'  office  implies  the  tacit 
agreement  on  the  part  of  the  incumbent  that  he  will  execute  its  duties 
with  diligence  and  fidelit}'.  5  Bac.  Abr.  210,  Offices  and  Officers,  Let- 
ter M.  We  hold  it  to  be  an  equally  sound  doctrine  that  all  officers  are 
punishable  for  corruption  and  oppressive  proceedings,  according  s,o  the 
nature  and  heinousness  of  the  offence,  either  by  indictment,  attach- 
ment, action  at  the  suit  of  the  party  aggrieved,  loss  of  their  offices,  &c. 
5  Bac.  Abr.  212,  Letter  N. 

And  further,  that  all  wilful  breaches  of  the  duty  of  an  office  are  for- 
feitures of  it,  and  also  punishable  by  fine  (Co.  Litt.  233,  234),  because 
every  office  is  instituted,  not  for  the  sake  of  the  officer,  but  for  the  good 
of  another  or  others  ;  and,  therefore,  he  who  neglects  or  refuses  to 
answer  the  end  for  which  his  office  was  ordained  should  give  way  to 
others,  and  be  punished  for  his  neglect  or  oppressive  execution. 

Let  us  apply  these  principles  to  the  present  case.  The  defendants 
were  justices  of  the  peace,  and  as  such  held  an  office  of  high  trust  and 
confidence.  In  that  character  they  were  called  upon  to  vote  for  others, 
for  offices  also  implying  trust  and  confidence.  Their  duty  required 
them  to  vote  in  reference  only  to  the  merit  and  qualifications  of  the 
officers,  and  yet  upon  the  pleadings  in  this  case  it  appears  that  they 
wickedly  and  corruptl}^  violated  their  duty  and  betrayed  the  confidence 
reposed  in  them,  by  voting  under  the  influence  of  a  corrupt  bargain  or 
reciprocal  promise,  by  which  they  had  come  under  a  reciprocal  obliga- 
tion to  vote  respectively  for  a  particular  person,  no  matter  how  inferior 
the  qualifications  to  their  competitors.      It  would  seem,  then,  upon 


SECT.  II.]  REX    V.    SEYMOUR. 


67 


these  general  principles  tliat  the  offence  in  the  information  is  indictable 
at  common  law.  But  there  are  authorities  which  applj-  particularly  to 
the  case  of  justices.  In  1  BL  Com.  354,  n.  17,  Christian,  it  is  said  if  a 
magistrate  abuse  his  authority  from  corrupt  motives  he  is  punishable 
criminally  by  indictment  or  information. 

Again,  where  magistrates  have  acted  partially,  maliciously,  or  cor- 
ruptly, thej'  are  liable  to  an  indictment.  1  Term  Rep.  692  ;  1  Burr. 
556  ;  3  Burr.  1317, 1716,  1786  ;  1  Wils.  7.  An  instance  of  their  acting 
partially  is  that  of  their  I'cfusing  a  license  from  motives  of  partiality, 
the  form  of  the  indictment  for  which  is  given  in  2  Chitty's  Crim.  Law, 
253. 

We  are  then  of  opinion,  for  the  reasons  and  upon  the  authorities 
aforesaid,  that  the  offence  stated  in  the  information  is  a  misdemeanor 
at  common  law  for  which  an  information  will  lie,  but  that  it  is  not 
within  the  statute  referred  to. 

In  answer  to  the  third  question  we  are  of  opinion  that  the  informa- 
tion is  a  good  and  sufficient  on^. 

All  which  is  ordered  to  be  certified  to  the  Superior  Court  of  Law  for 
Alleghany  Count}-. 


t 


^ 


REX   V.  SEYMOUR. 

King's  Bench.    1740. 

[Reported  7  lifod.  382.] 

Seymour,  Bo3'ee,  Blatch,  and  Duffield  attended  at  the  king's  bench^ 
in  order  to  receive  judgment,  upon  their  being  found  guilty  upon  several 
informations.^ 

Ch APPLE,  the  junior  Judge,  having  attended  Baron  Carter,  who  tried 
the  informations,  reported  to  the  Court  that  there  were  three  several 
informations,  one  against  Seymour,  and  Boj'ce,  a  justice  of  peace ; 
another  against  the  same  Seymour,  and  Blatch,  a  justice  of  the  peace  ; 
and  a  third  against  the  said  Seymour,  and  Duffield,  a  justice  of  the 
peace. 

1  Ace.  Rex  V.  Chalk,  Comb.  396  ;  Anon.,  6  Mod.  96  ;  Reg.  v.  Buck,  6  Mod.  306  ; 
Tyner  v.  U.  S.,  23  App.  D.  C.  324,  362  ;  People  v.  Coon,  15  Wend.  (N.  Y.)277;  Com. 
V.  Brown,  23  Pa.  Super.  Ct.  470.  "  However  reprehensible  it  may  be  for  a  member  of  the 
legislature  to  keep  'open  house'  for  the  entertainment  of  members,  where  they  may 
partake  of  '  light  refreshments,  wine,  beer,  liquors,  and  cigars,'  it  falls  short  of  estab- 
lishing a  case  of  bribery.  A  'bribe'  is  defined  to  be  a  'price,  reward,  gift,  or  favor 
bestowed  or  promised  with  a  view  to  pervert  the  judgment  or  corrupt  the  conduct  of  a 
judge,  witness,  or  other  person.'  'To  bribe'  means  'to  give  a  bribe  to  a  person  to  ^ 
prevent  his  judgment  or  corrupt  his  actions  by  some  gift  or  promise.'  To  give  enter-  C' 
tainments  for  the  purpose  of  unduly  influencing  legislation  is  wholly  bad  in  morals,  but 
does  not  constitute  the  crime  of  bribery."  Grant,  J.,  in  Randall  v.  Evening  News 
Ass'n,  97  Mich.  136,  56  N.  W.  361. 


? 


i 


68  ■  KEX    V.    SEYMOUR.  [CHAP  II. 

The  offence  stated  in  the  information,  was  matter  of  extortion  used 
by  Se3-mour  and  the  three  justices  against  several  foreigners  who  were 
settled  in  the  corporation  of  Colchester,  and  who  had  applied  to  those 
three  justices  for  licences  to  sell  ale. 

The  proceedings  were  thus:  Seymour  and  these  three  justices  met  in 
order  to  grant  licences  to  sell  ale  ;  when  the  burgesses  applied  the}'  had 
their  licences  upon  the  common  and  ordinary  terms,  but  when  any  for- 
eigner came  for  a  licence,  the  constables  who  were  stationed  to  guard  the 
outward  door  suffered  none  but  the  foreigner  who  applied  for  a  licence 
to  enter  into  the  first  room,  where  Seymour  was  ;  and  the  general  ques- 
tion Seymour  put  to  the  foreigner  was,  Whether  he  was  willing  to  pay 
ten  shillings  for  his  licence?  If  he  refused  he  was  dismissed,  but  if  he 
agreed  to  pay  it  to  Seymour  iiis  sureties  were  called,  and  he  was  ad- 
mitted to  go  along  with  them  into  the  room  to  the  three  justices,  where 
his  recognizance  was  taken  and  his  licence  granted.  These  informa- 
tions were  tried  by  three  special  juries  of  gentlemen  ;  the  facts  charged 
were  very  fully  proved  upon  the  trial ;  anl  there  were  above  one 
hundred  licences  granted  at  the  rate  of  ten  shillings  apiece. 

When  Chappie,  Justice,  had  certified  as  above,  Serjeant  Price  and 
Mr.  Bootle  moved,  in  mitigation  of  the  fines  that  should  be  set  by  the 
Court,  upon  several  affidavits  to  shew  quo  animo  the  fact  was  done,  as 
that  such  fines  had  been  taken  for  twenty-five  years  past ;  that  this 
whole  procedure  was  by  the  consent  and  direction  of  all  the  other  rulin<y 
members  of  the  corporation  ;  and  that  the  money  was  applied  to  public 
uses,  as  for  repairing  bridges,  streets,  etc. 

The  Court  suffered  the  affidavits  to  be  read,  though  it  was  opposed 
by  the  counsel  on  the  other  side. 

The  Court.  This  crime  appears  upon  the  informations,  and  the 
affidavits  for  mitigation,  to  be  of  a  very  high  nature  ;  for  here  are  three 
justices,  who  are  intrusted  by  the  act  of  Parliament  of  the  5.  &  6.  Edw. 
6,  c.  25,  with  a  discretionary  power  to  grant  or  refuse  licences  to  the 
persons  who  apply  for  them,  for  each  of  which  the  statute  allows  one 
shilling.  It  appears  there  were  several  applications  made  for  licences, 
and  that  the  justices  granted  them  to  anybody  that  was  willing  to  pav 
ten  shillings,  without  any  regard  to  the  person,  whether  he  was  quali- 
fied within  the  intent  of  the  act  or  not.  There  was  indeed  a  distinction 
niade  between  townsmen  and  foreigners,  the  latter  being  obliged  to  pav 
much  more  than  the  former ;  and  there  is  no  doubt  but  that  by  the  by- 
laws of  a  corporation,  in  a  great  many  instances,  foreigners  may  be 
obliged  to  pay  greater  fees  than  the  townsmen,  as  for  the  setting  up  of 
any  trade,  etc.,  but  selling  of  ale  is  not  a  trade,  or  the  subject  matter  of 
any  by-law.  Licencing  public  houses  is  a  trust  reposed  in  justices  of  the 
peace  by  the  legislature,  and  when  they  execute  it  in  this  extraordinary 
manner,  neither  the  custom  of  doing  it  for  twenty-five  years  before,  nor 
the  application  of  the  money  to  public  purposes,  nor  the  consent  of  the 


SECT.  II.]  M  T 


-jO\iL^ei_A>j_^ 


TAYLORS   CASE. 


69 


other  ruling  members  of  the  borough,  can  excuse  these  justices 
the  censures  of  this  Court. 

Tlierefore  the  three  justices  must  be  fined  one  hundred  pounds  each, 
and  Seymour,  who  appears  to  be  an  agent  or  instrument  to  tlie  justices, 
must  be  fined  one  hundred  and  twenty  pounds,  viz.,  the  sum  of  forty 
pounds  on  each  information. 

The  justices  and  Seymour  had  in  court  all  the  fine  money,  except 
one  hundred  pounds,  which  they  oflfered  to  pay. 

But  the  Court  said,  Let  them  be  gentlemen  of  ever  so  large  a  fortune, 
they  must  pay  the  whole  fine  in  court  or  be  committed,  and  checked  one 
of  the  clerks  in  court  for  proposing  to  undertake  for  the  payment  of  the 
one  hundred  pounds.  The  justices  then  paid  the  three  hundred  and 
twenty  pounds,  and  gave  their  note  for  the  remaining  one  hundred 
pounds,  which  was  accepted  by  the  Court  as  payment.^ 


from  ^-*-v^ 


V, 


V2»- 

TAYLOR'S   CASE. 
King's  Bexch.     1676. 

^Reported  1   Ventrls,  293.] 

An. information  exhibited  against  him  in  the  crown  office,  for  utter- 
ing of  divers  blasphemous  expressions,  hoi'rible  to  hear ;  viz..  That 
Jesus  Christ  was  a  bastard,  a  whoremaster  ;  Religion  was  a  cheat ;  and 
that  he  neither  feared  God,  the  Devil,  or  man. 

Being  upon  his  trial,  he  acknowledged  the  speaking  of  the  words, 
except  the  word  bastard  ;  and  for  the  rest,  he  pretended  to  mean  them 
in  another  sense  than  the}'  ordinaril}'  bear;  viz.,  whoremaster,  i.  d., 
that  Christ  was  master  of  the  whore  of  Babylon,  and  such  kind  of 
evasions  for  the  rest.  But  all  the  words  being  proved  b}'  several  wit- 
nesses, he  was  found  guilty. 

And  Hale  ^id,  That  such  kind  of  wicked,  blasphemous  words  were 
not  onh'  an  offence  to  God  and  religion,  but  a  crime  against  the  laws, 
State  and  government,  and  therefore  punishable  in  this  court  (for  to 
say  religion  is  a  cheat,  is  to  dissolve  all  those  obligations  whereby  the 
civil  societies  are  preferred)  ;  and  that  Christianitj"  is  parcel  of  the  laws 
of  England,  and  therefore  to  reproach  the  Christian  religion  is  to  speak 
in  subversion  of  the  law. 

Wherefore  they  gave  judgment  upon  him  ;  viz..  To  stand  in  the  pillory 
in  three  several  places,  and  to  pay  one  thousand  marks  fine,  and  to  find 
sureties  for  his  good  behavior  during  life.- 

1  See  Rex  i-.  Roberts,  Comb.  193. 

a  See  State  i;.  Williams,  4  Ire.  (N.  C.)  400. 


\0X«o'ii.^X_SL-^.A-A^M.    - 


(Q^»./Ok>..,^.XL5/vJBjL>-X^ 


^ 


70  ANONYMOUS.  [CHAP.  II. 

HUGH  MANNEY'S  CASE. 

Stak  Chamber.     16. 
{Reported  12  Coke,  101.] 

In  an  information  in  the  p:xcliequer  against  Hugh  Manner,  Esq., 
the  father,  and  Hugh  Manner,  the  son,  for  intrusion  and  cutting  of  a 
great  number  of  trees,  in  the  county  of  Merioneth,  the  defendants 
plead  not  guilty;  and  Rowland  ap  Eliza,  Esq.,  was  produced  as  a 
witness  for  the  King,  and  deposed  upon  his  oath  to  the  jurors,  that 
Huo-h  the  father  and  the  son  joined  in  sale  of  the  said  trees,  and  com- 
manded the  vendees  to  cut  them  down,  upon  which  the  jurors  found 
for  the  King  with  great  damages  ;  and  judgment  upon  this  was  given, 
and  execution  had  of  a  great  part. 

And  Hugh  Manney,  the  father,  exhibited  a  bill  in  the  Star  Chamber, 
at  the  common  law,  against  Rowland  ap  Eliza,  and  did  assign  the  per- 
jury in  this,  that  the  said  Hugh,  the  father,  did  never  join  in  sale,  nor 
command  the  vendees  to  cut  the  trees ;  and  the  said  Rowland  ap 
Eliza  was  by  all  the  lords  in  the  Star  Chamber  convict  of  corrupt  and 
wilful  perjury;  and  it  was  resolved  by  all,  that  it  was  by  the  common 
law  punishable  before  any  statute;  and  altliough  that  the  witness  de- 
pose for  the  King,  yet  he  shall  rather  be  punished  than  for  another ; 
for  the  King  is  the  head  and  fountain  of  justice  and  right ;  and  he,  who 
perjures  himself  for  the  King,  doth  more  offend  than  if  it  was  in  the 
case  of  a  subject. 


ANONYMOUS. 

Assizes.     1326. 
[Reported  Year  Book,  1  Ed.  iii.  16,/)/.  7.] 

A  MAN  was  indicted  for  felony,  and  put  in  the  stocks  ;  another  comes 
and  enters  the  house  (without  breaking  the  house)  and  takes  him  out 
of  the  stocks  and  gets  him  away;  and  for  this  act  he  was  arrested  and 
brought  before  the  justices  and  arraigned,  etc.,  on  indictment,  and  put 
liimself,  etc. ;  and  all  this  was  found  by  an  inquest. 

BouKCHiER,  C.  J.  C.  P.,  said  that  he  should  rest  in  the  grace  of  the 
King,  and  have  perpetual  prison  or  other  punishment  according  to  the 
King's  will.  But  he  should  never  be  hanged,  because  the  principal 
cause  was  not  tried,  nor  had  the  prisoner  been  attainted  ;  for  he  might 
yet  be  acquitted.  But  it  is  otherwise  when  a  man  is  convicted  by  the 
inquest  on  which  he  has  put  himself,  or  by  confession,  or  by  the  record, 
or  is  otherwise  adjudged  to  death;  he  who  rescues  such  a  man 
shall  be  hanged,  etc. 


SECT.  II.] 


"i 


^ 


^^J"         ANONYMOUS,       rO>_AJb-^^-J^<L_  71 


ANONYMOUS. 

King's  Bench.     1686. 

[Reported  3  31od.  97.] 


The  defendant  was  indicted  for  barratry.  Tlie  evidence  against  liim 
was,  Tliat  one  G.  was  arrested  at  tlie  suit  of  C.  in  an  action  of  four 
thousand  pounds,  and  was  brouglit  before  a  judge  to  give  bail  to  tlie 
action  ;  and  tliat  the  defendant,  wlio  was  a  barrister  at  law,  was  then 
present,  and  did  solicit  this  suit,  when  in  truth  at  the  same  time  C. 
was  indebted  to  G.  in  two  hundred  pounds,  and  that  he  did  not  owe 
the  said  C.  one  farthing. 

Herbert,  C.  J.,  was  first  of  opinion  that  this  might  be  maintenance, 
but  that  it  was  not  barratr}',  unless  it  appeared  that  llie  defendant 
did  know  that  C.  had  no  cause  of  action  after  it  was  brought.  If  a 
man  sliould  be  arrested  for  a  trifling  cause,  or  for  no  cause,  this  is  no 
barratry,  tliough  it  is  a  sign  of  a  very  ill  Christian,  it  being  against  the 
express  word  of  God.  But  a  man  may  arrest  another  thinking  that  he 
has  a  just  cause  so  to  do,  when  in  truth  he  has  none,  for  he  may  be  mis- 
taken, especially  where  there  have  been  great  dealings  between  the 
parties.  But  if  the  design  was  not  to  recover  his  own  right,  but  only 
to  ruin  and  oppress  his  neighbor,  that  is  barratry.  A  man  may  lay 
out  money  in  behalf  of  another  in  suits  of  law  to  recover  a  just  right, 
and  this  may  be  done  in  respect  of  the  poverty  of  the  party ;  but  if 
he  lend  money  to  promote  and  stir  up  suits,  then  he  is  a  barrator. 
Now  it  appearing  upon  the  evidence  that  the  defendant  did  entertain  C. 
in  his  house,  and  brought  several  actions  in  his  name  where  nothing 
was  due,  he  is  therefore  guilty  of  that  crime.  But  if  an  action  be  first 
brought,  and  then  prosecuted  by  another,  he  is  no  barrator,  though 
'there  is  no  cause  for  action. 


^ 


5?' 


ANONYMOUS 
Kix-o's  Bench.     1688. 
[^Reported  Comberbach,  46.] 


/•^    fl 


; 


f, 


A  MAN  was  indicted  for  words  spoken  of  a  justice  of  peace  [a  buffle- 
*headcd  fellow],  and  an  exception  was  taken  that  the  words  were  not 
indictable.  Ti 

But  per  Curiam,  Because  it  appears  the}'  were  spoken  of  him  in  the      f ' 

execution  of  his  oflSce,  the  indictment  is  good.     And  ;>er  [Wright]  C.  r 
J.,  All  actions  for  slandering  a  justice  in  his  office,  may  be  turned  into      j 

indictments.^  y 

1  See  Pocock's  Case,  7  Mod.  310 ;  Ex  parte,  The  Mayor  of  Great  Yarmouth,  f 

lCox,C.  C.  122.  } 


^'^ 


; 


72  REGINA  V.    STEPHENSON.  [cHAP.  II. 

REGINA  V.    STEPHENSON. 

Crown  Case  Reserved.     1884. 
[Reported  13  Q.  B.  D.  331.] 

Case  stated  by  Hawkiks,  J.  The  defendants  were  convicted  upon 
an  indictment  charging  them  witli  having  burnt  the  dead  bod}'  of  an 
illegitimate  infant  child  (named  George  Stephenson)  to  which  the  de- 
fendant Elizabeth  Stephenson  had  recently'  given  birth,  with  the  intent 
to  prevent  the  holding  of  an  inquest  upon  it.  Counsel  for  the 
defendants  objected  to  the  sufficiency  of  the  indictment.^ 

Grove,  J.  This  conviction  should  be  affirmed.  There  are  two 
points  raised  by  the  case  which  has  been  stated  ;  first,  is  it  indictable  at 
common  law  to  prevent  the  holding  of  a  coroner's  inquisition?  and, 
secondly,  is  there  enough  before  us  to  shew  that  the  coroner  had 
jurisdiction  to  hold  the  inquest? 

No  case  that  has  been  referred  to  is  absolutely  in  point,  but  there  are 
many  cases  which  shew  that  interference  with  statutory'  duties  and  the 
preventing  of  their  performance  is  a  misdemeanor  in  general  at  the 
common  law.  It  is  so  in  cases  where  statutory  provisions  are,  as  here, 
for  the  public  benefit,  and  especially  where,  as  here,  the  matter  is  one 
concerning  life  and  death.  It  is  most  important  to  the  public  that  a 
coroner  who  on  reasonable  grounds  intends  to  hold  an  inquest  should 
not  be  prevented  from  so  doing.  The  consequences  would  otherwise  be 
most  formidable,  especially  in  the  case,  I  fear,  of  3'oung  children,  for 
anyone  might  prevent  the  holding  of  an  inquest  b}'  the  destruction  of  a 
dead  body  with  impunity,  unless  it  could  be  proved  that  the  death  had 
been  caused  by  violence.  The  onl}'  evidence  might  be  the  examination 
of  the  bod}'  itself.  It  might  be  that  the  onlj*  witness  of  the  death  was 
the  murderer  of  the  person  found  dead.  To  hold  it  no  offence  to  pre- 
vent the  administration  of  the  law  by  preventing  an  inquest  being  held, 
unless  proof  could  be  given  of  the  cause  of  death,  and  that  it  was  a 
violent  cause,  would  set  at  nought  the  protection  which  there  is  at 
present  to  the  public.  The  inquest  is  itself  an  inquiry  into  the  cause 
of  death  and  the  present  indictment  is  framed  upon  this  view,  tlie  con- 
trary view  involves  this  proposition,  that  a  coroner  should  be  certain  of 
the  cause  of  death  before  he  ventures  to  hold  his  inquest  —  this  is  cer- 
tainh'  not  the  law.  It  is  certainl}'  not  what  the  statute  governing  this 
matter  says.  A  coroner  acts  and  ought  to  act  upon  information,  not 
upon  conclusive  evidence.  He  inquires  in  cases  of  sudden  death  where 
such  inquiry  is  desirable.  Bracton  Lib.  iii.  (De  Corona)  ch.  v,  and  the 
Mirrour  (The  Mirrour  of  Justices,  by  Home,  p.  38),  shew  that  the  statute 
is  but  an  affirmation  or  confirmation  of  the  common  law.  In  the 
statute  there  is  nothing  about  murder,  the  words  are  "suddenly  dead" 

1  This  short  statement  is  substituted  for  that  of  the  Reporter." —  Ed. 


SECT.  II.]  REGINA   V.    STEPHENSON.  73 

and  the  statute  requires  an  examination  of  tlie  dead  body,  the  whole 
wording  of  the  statute  shews  that  it  is  the  bodies  that  are  to  be  ex- 
amined to  find  tlie  cause  of  death.  A  coroner's  inquiry  would  be 
useless  if  the  coroner  previously  had  by  evidence  to  satisfy  himself  of 
the  cause  of  death.  In  the  present  case  it  appears  that  there  was  at 
the  least  a  reasonable  suspicion,  .and  indeed  probably  more  than  a 
reasonable  suspicion.  The  police Viformed  the  coroner,  the  informa- 
tion came  from  parties  whose  business  it  was  to  look  into  these  matters, 
probably  the  coroner  honestly  belidved  the  information  thus  given  to 
him.  It  is  clear  to  my  mind  that  in  holding  an  inquest  the  coroner 
would  only  in  such  a  case  be  doing  his  duty,  and  in  this  duty  the 
defendants  obstruct  him  by  surreptitiously  taking  away  the  body  and 
burning  it.  Their  object  was  to  prevent  the  inquest;  the  case  in  Mod. 
Rep. '(7  Mod.  Rep.  Case  15),  seems  to  me  in  point.  In  the  particular 
case  the  death  was  violent,  that  either  m^ns,  appeared  to  have  been  a 
violent  one,  or  it  means,  was  discovered)  to  have  been  a  violent  one 
when  the  inquest  was  held,  but  Lord  Hcit  seems  to  indicate  that  the 
offence  was  the  burying  the  child  before  khe  inquest  so  as  to  obstruct 
the  inquest.  If  it  is  a  crime  to  bury,  a  fortiori  it  is  one  to  burn  a  bodv, 
because  if  you  bury,  exhumation  is  possible,  but  if  you  burn,  tlie  body 
is  destroyed  and  examination  is  no  longer  possible.  How^ever,  here  it 
is  enough  to  say  the  coroner  had  a  right  to  hold  the  inquest,  and  the 
prisoners  were  wrong  in  secretly  and  intentionally  burning  the  body  to 
obstruct  him  in  his  duty  of  holding  such  inquest. 

Stephex,  J.  I  am  of  the  same  opinion.  It  is  a  misdemeanor  to 
destroy  a  body  upon  which  an  inquisition  is  about  to  be  propei'ly  held, 
with  intent  to  prevent  the  holding  of  that  inquest.  This  ai)pears  from 
many  authorities  and  from  the  case  in  Mod.  Rep.  (7  Mod.  Rep.  Case  15). 
Is  it  true  that  it  is  a  misdemeanor  to  interfere  in  a  case  where  the 
coroner  is  of  opinion  that  an  inquest  must  be  held,  or  is  it  necessary 
that  the  facts  should  be  such  that  the  inquest  ought  to  be  held  ?  This 
matter  is  not  absolutely  covered  by  authority.  In  one  sense  we  do 
create  new  offences,  that  is  to  say,  that  as  a  Court  we  can  and  do  define 
the  law  from  time  to  time  and  apply  it  to  the  varying  circumstances 
which  arise.  In  Reg.  v.  Price,  12  Q.  B.  D.  247,  248,  I  said,  "  it  is  a 
misdemeanor  to  prevent  the  holding  of  an  inquest  which  ought  to  be 
held  by  disposing  of  the  body.  It  is  essential  to  this  offence  that  the 
inquest  which  it  is  proposed  to  hold  is  one  which  ought  to  be  held. 
The  coroner  has  not  absolute  right  to  hold  inquests  in  every  case  in 
which  he  chooses  to  do  so.  It  would  be  intolerable  if  he  had  power  to 
intrude  without  adequate  cause  upon  the  privacy  of  a  family  in  distress, 
and  to  interfere  with  their  arrangements  for  a  funeral.  Nothing  can 
justify  such  interference  except  a  reasonable  suspicion  that  there  may 
have  been  something  peculiar  in  the  death,  that  it  may  have  been  due 
to  other  causes  than  common  illness.  In  such  cases  the  coroner  not 
only  may,  but  ought  to  hold  an  inquest,  and  to  prevent  him  from  doing 
so  by  disposing  of  the  body  in  any  way  —  for  an  inquest  must  be  held 


74  EEX    V.   TIBBITS.  [CHAP.  II. 

on  the  view  of  the  body  —  is  a  misdemeanor."  I  say  the  same  thing 
now,  and  I  concur  in  my  brother  Grove's  view,  indeed  any  other  view 
would  in  ray  opinion  be  absurd.  If  a  person  destroys  a  dead  body  or 
removes  it  to  prevent  an  inquest  being  held  he  is  guilty  of  an  offence  if 
the  inquest  intended  to  be  held  was  one  that  might  lawfully  be  held. 
As  has  been  said  in  the  course  of  the  argument,  a  man  who  obstructs 
an  inquest  in  this  way  takes  his  chance  of  the  inquest  being  one  that  it 
was  right  to  hold.  It  is  an  obstruction  of  an  officer  of  justice,  it 
prevents  the  doing  of  that  which  the  statute  authorizes  him  to  do.^ 


^9 

REX  V.   TIBBITS. 

Court  for  Crown  Cases  Reserved.     1901. 

[Reported  1902,  1  K.  B.  77.] 

Lord  Alverston,  C.  J."  This  was  a  case  reserved  by  Kennedy-,  J., 
at  the  last  summer  assizes  at  Bristol.  Indictments  were  preferred 
against  two  defendants,  Charles  John  Tibbits  and  Charles  Windust. 
The  indictments  contained  sixteen  counts,  upon  each  of  which  the  de- 
fendants were  found  guilty.  The  charges  contained  in  the  indictment 
related  to  the  publication  of  certain  matters  in  a  newspaper  called  the 
Weekly  Dispatch,  between  January  13,  1901,  and  March  4,  1901 
(inclusive),  and  particularly  to  the  issues  of  that  newspaper  dated 
respectively  January  13  and  February  3,  1901.  Prior  to  the  publica- 
tion of  the  first  article,  two  persons,  named  Allport  and  Chappell,  had 
been  charged  before  the  magistrate  with  offences  under  the  Prevfition 
of  Cruelty  to  Children  Act,  1894.  Further  charges  of  attempting  to 
murder,  and  of  conspiracy  to  murder  a  child  named  Arthur  Bertie 
Allport,  and  of  a  conspiracy  to  commit  the  offence  against  s.  1  of  the 
Prevention  of  Cruelty  to  Children  Act,  1894,  were  preferred  against 
them.  On  February  8  Allport  and  Chappell  were  committed  to  take 
their  trial  at  the  next  Bristol  Assizes,  which  had  been  fixed  to  com- 
mence on  February  20.  Their  trial  on  the  indictment  for  the  attempt 
to  murder  commenced  before  Day,  J.,  on  March  1,  and  terminated  on 
March  5.  They  were  found  guilty,  and  sentenced,  Allport  to  fifteen 
years'  penal  servitude  and  Chappel  to  five  years'  penal  servitude.  The 
publications  in  the  Weekly  Dispatch,  which  formed  the  subject  of  the 
present  indictment  against  Tibbits  and  Windust,  were  statements  relat- 
ing to  the  case  of  Allport  and  Chappell,  contained  in  the  issues  of  the 
Weekly  Dispatch  during  the  hearing  of  the  case  against  Allport  and 
Chappell  before  the  magistrate,  and  before  and  during  the  trial  of  these 
persons  at  the  assizes.     It  is  unnecessary  to  refer  in  detail  to  any  of 

1  Coucuning  opinions  of  Williams,  Mathew,  and  Hawkins,  J.J.,  are  omitted.  —  Eu. 

2  The  opinion  only  is  given  :  it  sufficiently  states  tbe  case.     Part  of  the  opinion  is 
omitted.  —Ed. 


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SECT,  II.]  EEX    V.   TIBBITS.  75 

the  incriminated  articles,  of  which  those  of  January  13  and  February 

3  were  the  most  important.  It  is  sufficient  to  say  that  the  publication 
went  far  beyond  any  fair  and  bona  fide  report  of  the  proceedings  before 
the  magistrate.  The}'  contained,  couched  in  a  florid  and  sensational 
form,  a  number  of  statements  highly  detrimental  to  Allport  and  Chap- 
pell.  Many  of  these  statements  related  to  matters  as  to  which  evidence 
could  not  have  been  admissible  against  them  in  any  event,  and  pur- 
ported to  be  the  result  of  investigations  made  by  the  "Special  Crime 
Investigator "  of  the  newspaper.  Under  these  circumstances  it  was 
contended  on  behalf  of  the  prosecution  that  there  was  evidence  upon 
which  the  jury  might  properly  convict  both  the  defendants  on  all  the 
counts  of  the  indictment.  Upon  the  argument  before  us  we  had  no 
doubt  upon  the  main  questions  which  had  been  discussed,  but,  having 
regard  to  the  nature  of  the  proceedings  and  the  importance  of  the  case, 
we  thought  it  desirable  that  we  should  endeavour  to  lay  down  as  clearly 
as  possible  the  law  applicable  to  such  a  case.  Points  were  raised  and 
argued  on  behalf  of  the  defendant  Windust  as  distinguished  from  the 
defendant  Tibbits.  It  will  be  convenient  to  postpone  the  discussion  of 
those  points  until  we  have  dealt  with  the  main  questions  of  law  raised 
on  behalf  of  both  prisoners.  It  was  not  attempted  to  be  argued  by 
Mr.  Foote,  who  appeared  as  counsel  for  both  defendants,  that  the  pub- 
lication of  such  articles  was  lawful,  and  that  the  persons  publishing 
such  articles  could  not  be  punished.  On  the  contrary,  he  contended 
that  the  publication  of  such  articles  was  a  contempt  of  Court,  and  could 
only  properly  be  punished  as  such  either  by  summary  proceedings  or 
indictment  for  contempt.  He  further  urged  that  there  was  no  evidence 
of  any  intention  on  the  part  of  either  of  the  defendants  to  pervert  or 
interfere  with  the  course  of  justice,  and  that  any  inference  which  might 
otherwise  be  drawn  from  the  contents  of  the  articles,  that  they  were 
calculated  to  pervert  or  interfere  with  the  course  of  justice,  was  nega- 
tived by  the  fact  that  the  defendants  Allport  and  Chappell  had  been 
subsequently  convicted.  That  the  publication  of  such  articles  consti- 
tuted a  contempt  of  Court  and  could  be  punished  as  such,  is  well 
established.  One  of  the  sorts  of  contempt  enumerated  by  Hardwicke, 
L.  C,  in  the  year  1742,  2  Atk.  471,  is  prejudicing  mankind  against  per- 
sons before  the  case  was  heard,  and  he  adds  these  important  words : 
"There  cannot  be  anything  of  greater  consequence  than  to  keep  the 
realms  of  justice  clear  and  pure  that  parties  may  proceed  with  safety 
both  to  themselves  and  their  charactei's."     The  case  of  Rex  v.  JoUiffe, 

4  T.  R.  285,  shews  that  a  criminal  information  lay  for  distributing  in  the 
assize  town,  before  the  trial  at  Nisi  Prius,  handbills  reflecting  on  the  con- 
duct of  a  prosecutor,  and,  in  the  course  of  his  judgment  in  that  case,  Lord 
Kenyon  made  the  following  very  relevant  observations,  4  T.  R.  at  p.  298  : 
"  Now  it  is  impossible  for  any  man  to  doubt  whether  or  not  the  publica- 
tion of  these  papers  be  an  offence.  Even  the  charge  on  the  prosecutor 
would  of  itself  warrant  us  to  grant  the  information  ;  but  that  is  a  minor 
oflTence,  when  compared  with  that  of  publishing  the  papers  in  question 


76  EEX    V.    TIBBITS.  [CHAP.  II. 

during  the  pendency  of  the  cause  at  the  assizes,  and  in  the  hour  of  trial. 
It  is  the  pride  of  the  constitution  of  this  country  tliat  all  causes  should 
be  decided  by  jurors,  who  are  chosen  in  a  manner  which  excludes  all 
possibility  of  bias,  and  who  are  chosen  by  ballot,  in  order  to  prevent 
any  possibility  of  their  being  tampered  with.     But,  if  an  individual  can 
break  down  any   of  those  safeguards  wliich   the   constitution  has   so 
wisely  and  so  cautiously  erected,  by  poisoning  the  minds  of  the  jury  at 
a  time  when  they  are  called  upon  to  decide,  he  will  stab  the  adminis- 
tration of  justice  in  its  most  vital  parts.     And,  therefore,  I  cannot  for- 
bear saying,  that,  if  the  publication  be  brought  home  to  the  defendant, 
he  has  been  guilty  of  a  crime  of  the  greatest  enormity."     Again,  in  the 
case  of  Rex  v.  Fisher,  2  Camp.  563,  the  printer,  publisher,  and  editor, 
were  convicted  for  publishing  a  scandalous,  defamatory,  and  malicious 
libel,  intending  to  injure  one  Richard  Stephenson,  charged  with  assault, 
and  deprive  him  of  tlie  benefit  of  an  impartial  trial,  "  and  to  injure  and 
prejudice  him  in  the  minds  of  the  liege  subjects  of  our  lord  tlie  King 
and  to  cause  it  to  be  believed  that  he  was  guilty  of  the  said  assault  and 
thereby  to  prevent  the  due  administration  of  justice  and  to  deprive  the 
said  Richard  Stephenson  of  the  benefit  of  an  impartial  trial."     It  was 
urged  on  behalf  of  the  defendants  that  this  was  an  indictment  for  libel, 
and  that,  therefore,  it  was  no  authority  for  the  indictment  in  the  present 
case.     But,  if  the  judgment  of  Lord  Ellenborough  is  examined,  it  will 
be  noted  that  the  main  ground  of  the  judgment  is  that  the  publication 
would  tend  to  pervert  the  public  mind  and  disturb  the  course  of  justice 
and  therefore  be  illegal,  and  we  cannot  doubt  that,  if  the  attempt  so  to 
do  be  made,  or  means  taken,  the  natural  effect  of  which  would  be  to 
create  a  wide-spread  prejudice  against  persons  about  to  take  their  trial, 
an  offence  has  been  committed,  whatever  the  means  adopted,  proi'ided 
there  be  not  some  legal  justification  for  the  course  pursued.     The  case 
of  Rex  V.  Williams,  2  L.  J.  (K.B.)  (O.S.)  30,  is  another  distinct  autho- 
rity for  the  same  view,  in  which  it  was  laid  down  that  any  attempt 
whatever  to  publicly  prejudge  a  criminal  case,  whether  by  a  detail  of  the 
evidence  or  by  a  comment,  or  by  a  theatrical  exliibition,  is  an  offence 
against  public  justice  and  a  serious  misdemeanour.     The  publication  of 
proceedings  publicly  held  in  a  Court  of  Justice,  if  fair  and  accurate,  has 
now  the  protection  of  the  Law  of  Libel  Amendment  Act,  1888  (51  Sc  52 
Vict.  c.  64),  s.  3.     The  law  as  laid  down  in  the  older  cases  to  which 
we  have  referred  was  summarised  by  Blackburn,  J.,  in  Skipworth's  Case, 
L.  R.  9  Q.  B.  230,  at  p.  232,  and  with  reference  to  the  objection  that 
the  more  proper  proceeding  should  be  by  proceedings  for  contempt  of 
Court,  we  would  refer  to  the  judgment  of  the  Court  in  Reg.  v.  Gray, 
[1900]  2  Q.  B.  36,  from  which  it  clearly  appears  that  in  many  cases  it 
is  preferal)le  to  proceed  by  information  or  indictment  rather  than  by 
motion  for  contempt.     We  have  no  doubt  whatever  that  the  publication 
of  the  articles  in  this  case,  at  the  time  when,  and  under  the  circum- 
stances in  which  they  were  published,  constitutes  a  criminal  offence  by 
whomsoever  they  were  published.     We  think  that  the  facts,  which  bring 


SECT.  II.]  KEX    V.    TIBBITS.  77 

the  incriminated  articles  within  the  category  of  misdemeanour,  abun- 
dantly appear  upon  tlie  face  of  each  count,  and  tiiat,  under  those  circum- 
stances, it  is  perfectly  immaterial  whether  the  articles  be  described  and 
charged  as  libels  or  contempts  or  not.  With  reference  to  the  argu- 
ment, which  was  strongly  urged,  that  there  was  no  evidence  of  any 
intention  to  pervert  the  course  of  justice,  we  are  clearly  of  opinion,  for 
tlie  reasons  given  in  the  authorities  to  whicli  we  have  referred,  that  this 
is  one  of  the  cases  in  which  the  intent  may  properly  be  inferred  from 
the  articles  themselves  and  the  circumstances  under  which  they  were 
published.  It  would,  indeed,  be  far-fetched  to  infer  that  tlie  articles 
would  in  fact  have  an^-  effect  upon  the  mind  of  citlier  magistrate  or 
judge,  but  the  essence  of  the  offence  is  conduct  calculated  to  produce, 
so  to  speak,  an  atmosphere  of  prejudice  in  the  midst  of  which  the  pro- 
ceedings must  go  on.  Publications  of  that  character  have  been  pun- 
ished over  and  over  again  as  contempts  of  Court,  where  the  leo-al 
proceedings  pending  did  not  involve  trial  by  jury,  and  where  no  one 
would  imagine  that  the  mind  of  the  magistrates  or  judges  chartred  with 
the  case  would  or  could  be  induced  thereby  to  swerve  from  the  strait^ht 
course.  The  offence  is  much  worse  where  trial  by  jury  is  about  to  take 
place,  but  it  certainly  is  not  confined  to  such  cases.  We  further  think 
that,  if  the  articles  are  in  the  opinion  of  the  jury  calculated  to  interfere 
with  the  course  of  justice  or  pervert  the  minds  of  the  magistrate  or  of 
the  jurors,  the  persons  publishing  are  criminally  responsible  :  see  Reg. 
V  Grant,  7  St.  Tr.  (N.S.)  507.  We  are  also  of  opinion  that  the  fact 
that  AUport  and  Chappell,  the  persons  referred  to,  were  subsequently 
convicted  can  have  no  weight  in  the  decision  of  the  question  now  before 
us.  To  give  effect  to  such  a  consideration  would  involve  the  conse- 
quence that  the  fact  of  a  conviction,  though  resulting,  either  wholly  or 
in  part,  from  the  influence  upon  the  minds  of  the  jurors  at  the  trial  of 
such  articles  as  these,  justifies  their  publication.  Tins  is  an  argument 
which  we  need  scarcely  say  reduces  tlie  position  almost  to  an  absunlitv, 
and,  indeed,  its  ciiief  foundation  would  appear  to  be  a  confusion 
between  the  course  of  justice  and  the  result  arrived  at.  A  p(M-son 
accused  of  crime  in  this  country  can  properly  be  convicted  in  a  Court 
of  -Justice  only  upon  evidence  which  is  legally  admissible  and  which  is 
adduced  at  his  trial  in  legal  form  and  shape.  Though  the  accused  be 
really  guilty  of  the  offence  charged  against  him,  the  due  course  of  law 
and  justice  is  nevertheless  perverted  and  obstructed  if  those  who  have 
to  try  him  are  induced  to  approach  the  question  of  his  guilt  or  inno- 
cence with  minds  into  which  prejudice  has  been  instilled  by  published 
assertions  of  his  guilt  or  imputations  against  his  life  and  character  to 
which  the  laws  of  the  land  refuse  admissibility  as  evidence. 

We  have  now  only  to  consider  the  special  points  which  were  taken 
on  behalf  of  the  defendant  Windust.  .   .  . 

Conviction  J^rmed. 


78  STATE  V.   HOLT.  [CHAP.  II. 

STATE  V.   HOLT. 

Supreme  Judicial  Court  of  Maine.      1892. 

[Reported  84  Maine,  509.] 

"Walton,  J.  A  wilful  and  corrupt  attempt  to  prevent  the  attend- 
ance of  a  witness  before  any  lawful  tribunal  organized  for  the  adminis- 
tration of  justice  is  an  indictable  offence  at  common  law.  The  essence 
of  the  offence  consists  in  a  wilful  and  corrupt  attempt  to  interfere  with 
and  obstruct  the  administration  of  justice.  And  when  the  act  and  the 
motive  are  first  directly  averred,  and  then  clearly  proved,  punishment 
should  follow. 

In  this  case  the  indictment  alleges  that  the  defendant,  "  well  know- 
ing that  one  Fred  N.  Treat  had  been  summoned  in  due  form  of  law  to 
appear  before  the  Supreme  Judicial  Court  holden  at  Belfast  within  and 
for  the  county  of  Waldo,  on  the  thirtieth  day  of  April  aforesaid,  then 
and  there  to  give  evidence  in  said  court  in  behalf  of  the  State,  and 
contriving  and  intending  to  obstruct  the  due  course  of  justice,  did  then 
and  there  unlawfully  and  corruptly  prevent,  and  attempt  to  prevent 
the  said  Treat  from  appearing  at  said  court  to  give  evidence  as  afore- 
said by  then  and  there  soliciting,  enticing,  and  persuading  the  said 
Treat  to  become  intoxicated,  and  by  then  and  there  removing  and 
abducting  him,  the  said  Treat,  whereby  the  said  Treat  did  not  appear 
at  said  court  and  give  evidence,"  etc. 

It  is  objected  that  this  indictment  is  not  sufficient,  because  it  does 
not  aver  that  the  witness  had  been  summoned,  or  that  a  summons  had 
been  issued,  or  that  there  was  a  cause  pending  requiring  the  attendance 
of  the  witness. 

We  do  not  think  that  either  of  these  objections  can  be  sustained. 

In  State  v.  Keyes,  8  Yt.  57  (30  Am.  Dec.  450),  in  a  well-considered 
opinion  by  Mr.  Justice  Redfield,  the  court  held  that  it  had  always 
been  an  indictable  offence  at  common  law  to  attempt  to  prevent  the 
attendance  of  a  witness  before  a  court  of  justice,  although  no  subpoena  ' 
for  the  witness  had  been  served  or  issued.  It  will  not  do  for  a 
moment,  said  the  court,  to  admit  that  witnesses  may  be  secreted  or 
bribed,  or  intimidated,  and  the  guilt}'  parties  not  be  liable  unless  a 
subpoena  has  been  served  upon  the  witnesses.  The  doing  of  any  act, 
continued  the  court,  tending  to  obstruct  the  due  course  of  public  justice, 
has  always  been  held  to  be  an  indictable  offence  at  common  law  ;  and 
bribing,  intimidating,  and  persuading  witnesses,  to  prevent  them  from 
testifying,  or  to  prevent  them  from  attending  court,  has  been  among 
the  most  common  and  the  most  corrupt  of  this  class  of  offences ;  and 
whether  the  witness  has  been  served  with  a  subpoena,  or  is  about  to  be 
served  with  one,  or  is  about  to  attend  in  obedience  to  a  voluntary 
promise,  is  not  material ;  for  any  attempt,  in  either  case,  to  prevent  bis 


SECT.  II.]  STATE    V.    CAHVER.  79 

attendance,  is  equally  corrupt,  equally  criminal,  and  equallj'  deserving 
of  punishment. 

In  Com.  V.  Reynolds,  14  Gray,  87,  the  court  held  it  to  be  an  in- 
dictable offence  at  common  law  to  dissuade,  hinder,  or  prevent  a  witness 
from  attending  before  a  court  of  justice  ;  and  that  an  indictment  for 
such  an  offence  need  not  allege  in  whose  behalf  the  witness  had  been 
summoned,  nor  that  his  testimony'  was  material.  The  offence,  said 
Mr.  Justice  Metcalf,  is  the  obstruction  of  the  due  course  of  justice  ; 
and  the  obstruction  of  the  due  course  of  justice  means  not  onl}-  the 
due  conviction  and  punishment,  or  the  due  acquittal  and  discharge, 
of  an  accused  party,  as  justice  may  require  ;  but  it  also  means  the  due 
course  of  the  proceedings  in  the  administration  of  justice;  that,  by 
obstructing  these  proceedings,  public  justice  is  obstructed. 

Intentionally  and  designedly  to  get  a  witness  drunk,  for  the  express 
purpose  of  preventing  his  attendance  before  the  grand  jury,  or  in  open 
court,  is  such  an  interference  with  the  proceedings  in  the  administration 
of  justice  as  will  constitute  an  indictable  offence,  and  one  for  which  the 
guilty  party  ought  to  be  promptly  and  severely  punished.  And  it  is 
important  that  it  should  be  understood  that  the  suppression  of  evidence 
by  such,  or  by  any  similarly  wicked  and  corrupt  means,  cannot  be 
practiced  with  impunity. 

Exceptions  overruled.     Indictment  adjudged  sufficieiit. 


STATE  V.  CARVER. 

Supreme  Court  of  New  Hampshire.     189S. 

[Reported  69  N.  H.  216.] 

Indictment  charging  that  one  Fernald  had  sold  one  quart  of  spirituous 
liquor  contrary  to  the  statute,  and  that  the  defendant  corruptly  and 
without  authority  made  composition  with  Fernald  and  took  from  him 
thirty  dollars  for  forbearing  to  prosecute  the  supposed  offence.  The 
defendant  moved  to  quash  the  indictment.  He  also  excepted  to  a 
ruling  of  the  court  at  the  trial,  which  is  discussed  in  the  opinion.^ 

Blodgett,  J.  Whatever  diversity  of  opinion  there  may  justly  be  as 
to  the  policy  of  the  liquor  laws  of  this  state,  it  cannot  be  doubted  that 
their  violation  is  a  grave  misdemeanor  against  public  justice,  nor  that 
its  compromise  with  the  offender  by  a  private  individual  is  both 
pernicious  and  illegal. 

"  Misdemeanors  are  either  mala  in  se,  or  penal  at  common  law,  and 
such  as  are  mala  prohihita,  or  penal  by  statute.  Those  mala  in  se 
are  such  as  mischievously  affect  the  person  or  property  of  another,  or 
outrage  decency,  disturb  the  peace,  injure  public  morals,  or  are  breaches 
of  public  duty."     4  Am.  &  Eng.  Enc.  Law  654. 

There  being  in  this  state  no  statute  prohibiting  the  composition  of 
1  This  short  statemeut  is  substituted  for  that  of  the  Eeporter.  —  Ed. 


80 


STATE   V.    CARVER.  [CHAP.    II. 


misdemeanors,  and  the  body  of  the  common  law  and  the  English  stat- 
utes in  amendment  of  it,  so  far  as  they  were  applicable  to  our  institutions 
and  the  circumstances  of  the  country,  having  been  in  force  here  upon 
the  organization  of  the  provincial  government  and  continued  in  force 
by  the  constitution,  so  far  as  they  are  not  repugnant  to  that  instrument, 
until  altered  or  repealed  by  the  legislature  (State  v.  Rollins,  8  N.  H. 
550;  State  v.  Albee,  61  N.  H.  427),  the  first  inquiry  is  whether  such 
composition  was  an  indictable  offence  at  common  lavr. 

While  decisions  upon  this  precise  point  are  lacking,  the  language  of 
the  books  is  general  that  the  taking  of  money  or  other  reward  to  sup- 
press a  criminal  prosecution,  or  the  evidence  necessary  to  support  it, 
was  an  indictable  offence  at  common  law,   and  although  the  English 
cases  may  not  all  be  reconcilable  with  this  view,  it  would  seem  that 
when  the  offence  compounded  was  one  against  public  justice  and  dan- 
gerous to   society  it  was   indictable,   while  those  having  largely  the 
nature  of  private'  injuries,  or  of  very  low   grade,  were  not  indictable. 
See  Johnson  v.  Ogilbv,  3  P.  Wms.   277;  Fallowes  v.  Taylor,   7  T.  R. 
475  ;  Collins  v.  Blantern,  2  Wils.  341,  348,  349;  Rex  v.  Stone,  4  C.  & 
P.  379;  Keir  v.  Leeman,  6  Q.  B.  308,  316-322,  — S.  C,  on   error. 
9  Q.  B.  371,  395  ;   Rex  v.  Crisp,  1  B.  &  Aid.  282;  Edgcombe  v.  Rodd, 
5  East,  294,  303  ;  Rex  v.  Southerton,  6  East,  126  ;  Beeley  v.  Wingfield, 
11  East,  46.  48;  Baker  v.  Townsend,    7   Taun.   422,   426;  Bushel  v. 
Barrett,  Ry.  &  M.  434  ;  Rex  v.  Lawley,  2  Stra.  904  ;  Steph.  C.  R.  L.  67  ; 
3  Wat.  Arch.  Crim.  Pr.  &  PI.  623-10,  623-11 ;  1  Russ.  Cr.  136  ;  1  Ch. 
Cr.  L.  (3d  Am.  ed.)  4  ;  1  Bish.  Cr.  L.  (7th  ed.),  ss.  710,  711;  Dest.  Cr. 
L.  s.  10  b;  4  Wend.  Bl.  Com.  136,  and  note  18. 

In  this  restricted  sense  we  are  of  opinion  that  the  taking  of  mc^iey, 
or  other  reward,  or  promise  of  reward,  to  forbear  or  stifle  a  crim- 
inal prosecution  for  a  misdemeanor,  was  an  indictable  offence  by  the 
common  law,  the  same  as  it  unquestionably  was  for  a  felony  (Pait- 
ridge  v.  Hood,  129  Mass.  403,  405,  406,  407),  and  that  it  has  always 
bee°n  so  understood  and  received  here,  as  well  as  in  other  jurisdictions. 
Plumer  v.  Smith,  5  N.  H.  553,  554  ;  Hinds  v.  Chamberlin,  6  N.  U. 
229  ;  Severance  v.  Kimball,  8  N.  H.  386,  387  ;  Hinesburg  v.  Sumner, 
9  Vt.  23,  26  ;  Badger  v.  Williams,  1  D.  Chip.  137,  138,  139  ;  State  v. 
Keyes,  8  Vt.  57,  65-67;  State  v.  Carpenter,  20  Vt.  9  ;  Commonwealth 
V.  Pease,  16  Mass.  91  ;  Jones  v.  Rice,  18  Pick.  440  ;  Partridge  v.  Hood, 
supra;  State  v.  Dowd,  7  Conn.  384,  386. 

Certainly,  there  is  no  ground  to  contend  that  the  offence  is  any 
less  pernicious  and  reprehensible  under  our  form  of  government  than 
under  that  of  the  mother  country,  or  that,  as  a  part  of  the  body  of 
the  common  law,  it  was  inapplicable  to  our  institutions  and  circum- 
stances at  the  time  of  the  organization  of  our  provincial  government, 
or  in  any  manner  repugnant  to  the  constitution  or  to  our  present 
institutions  and  circumstances.  Indeed,  the  absence  of  any  statute 
upon  the  subject  of  the  composition  of  misdemeanors  sufficiently  shows 
the  general  understanding  in  this  state,  for  it  cannot  reasonably  be 


SECT.  II.]  STATE   V.    CARVER.  81 

siipi)osed  that  so  infamous  an  offence  would  have  been  permitted  to  go 
unpunished  for  want  of  statutory  enactment,  unless  it  has  been 
understood  generall}-  that  under  our  common  law  none  was  necessary. 

But  not  only  did  the  defendant,  in  consideration  of  a  reward,  com- 
pound a  public  misdemeanor,  and  suppress  and  destroy  the  material 
evidence  necessary-  to  support  it,  he  also  defrauded  the  revenue  by 
depriving  the  public  of  that  portion  of  the  pecuniar}-  penalty  to  which 
the}-  are  entitled  for  a  violation  of  the  liquor  laws ;  and  this  of  itself 
is  a  sufficient  ground  on  which  to  sustain  an  indictment  at  common 
law.     Rex  v.  Southerton,  6  P^ast,  12G;  1  Russ.  Cr.  134. 

In  view  of  these  conclusions,  it  is  unnecessarj'  to  examine  the  ques- 
tion argued  b}'  counsel  as  to  whether  or  not  the  case  falls  within  the 
statute  of  18  Eliz.,  c.  5  (made  perpetual  by  27  Eliz.,  c.  10,  and  amended 
as  to  punishment  by  56  Geo.  Ill,  c.  138),  by  which  it  was  enacted  that 
if  any  person  "  by  colour  or  pretence  of  process,  or  without  process 
upon  colour  or  pretence  of  any  matter  of  ofJence  against  any  penal  law, 
make  any  composition,  or  take  an}-  money,  reward,  or  promise  of  re- 
ward," without  the  order  or  consent  of  some  court,  "  he  shall  stand 
two  hours  in  the  pillory,  be  forever  disabled  to  sue  on  any  popular  or 
penal  statute,  and  shall  forfeit  ten  pounds." 

The  motion  to  quash  the  indictment  because  it  describes  the  offence 
for  which  composition  was  made  as  a  "  supposed  offence,"  was  prop- 
erly denied.  "  The  bargain  and  acceptance  of  the  reward  makes  the 
crime  "  (State  v.  Duhammel,  2  Harr.  532,  533)  ;  and  in  such  a  case, 
"the  party  may  be  convicted  though  no  offence  liable  to  a  penalty  has 
been  committed  by  the  person  from  whom  the  reward  is  taken." 
Reg.  V.  Best,  9  C.  &  P.  368,-38  Eng.  C.  L.  220;  Rex  v.  Gotley, 
Russ  &  Ry.  84  ;  People  v.  Buckland,  13  Wend.  502;  1  Russ.  Cr.  133, 
134  ;  3  Arch.  Grim.  Pr.  &  PI.  623-11. 

The  ruling  that  "if  the  defendant  knew  what  he  was  doing  and 
did  what  he  intended  to  do,  it  was  immaterial  what  his  opinion  was 
as  to  the  legal  effect  of  what  he  was  doing,  and  it  would  be  no 
defence  that  he  did  not  know  he  was  violating  the  law,"  was  mani- 
festly correct.  "  A  man's  moi'al  perceptions  may  be  so  i)erverted  as  to 
imagine  an  act  to  be  right  and  legal  which  the  law  justly  pronounces 
fraudulent  and  corrupt ;  but  he  is  not  therefore  to  escape  from  the 
consequences  of  it."  Bump.  Fr.  Conv.  (3d  ed.)  25.  "  Ignorance  of  a 
fact  may  sometimes  be  taken  as  evidence  of  a  want  of  criminal  intent, 
but  not  ignorance  of  the  law  "  (Reynolds  v.  United  States,  98  U.  S. 
145)  ;  and  "in  no  case  can  one  enter  a  court  of  justice  to  which  he 
has  been  summoned  in  either  a  civil  or  criminal  proceeding,  with  the 
sole  and  naked  defence  that  when  he  did  the  act  complained  of,  he  did 
not  know  of  the  existence  of  the  law  which  he  violated."  1  Bish.  Cr. 
L.  (7th  ed.),  s.  294. 

It  is  elementary,  as  well  as  indispensable  to  the  orderly  administra- 
tion of  justice,  that  every  man  is  presumed  to  know  the  laws  of  the 
country   iu  which   he  dwells,    and  also  to  intend   the   necessary  and 

G 


82 


REX   V.   BLAKE. 


[chap.  II. 


legitimate  consequences  of  what  he  knowingly  does.  If  there  are 
cases  in  which  the  application  of  these  presumptions  might  operate 
harshly,  the  admitted  facts  amply  demonstrate  that  this  case  is  not 
such  an  one.  Exceptions  overruled. 


'S 


'i 


REX 


V.  BLAKE. 


King's  Bench.     1765. 

[Reported  3  Burrow,  1731.] 

Mr.    Dunning  showed   cause   why   an   indictment   should   not   be 

quashed. 

He  called  it  an  indictment  for  a  forcible  entry  ;  and  argued  "  that  an 
indictment  for  a  forcible  entry  may  be  maintained  at  common  law." 
He  cited  a  case  in  Trin.  1753,  26,  27,  G.  2.  B.  R.  Rex  v.  Brown  and 
Others ;  and  Rex  v.  Bathurst,  Tr.  1755,  28  G.  2.  S.  P. 

But,  N.  B.  This  indictment  at  present  in  question  was  only  for 
(viet  armis)  brealving  and  entering  a  close  Cnot  a  dwelling-house)  and 
unlawfully  and  unjustly  expelling  the  prosecutors,  and  keeping  them 
out  of  possession. 

Mr.  Popham,  on  behalf  of  the  defendants,  objected  "  that  this  was 
an  indictment  for  a  mere  trespass,  for  a  civil  injury ;  not  a  public,  but 
a  private  one  ;  a  mere  entry  into  his  close,  and  keeping  him  out  of  it." 
The  "  force  and  arms  "  is  applied  only  to  the  entry,  not  to  the  expel- 
ling or  keeping  out  of  possession  ;  they  are  only  charged  to  be  unlaw- 
fully and  unjustly.  This  is  no  other  force  than  the  law  implies.  No 
actual  breach  of  the  peace  is  stated  ;  or  any  riot ;  or  unlawful  assemi>ly. 
And  he  cited  the  cases  of  Rex  v.  Gask,  Rex  v.  Hide,  and  Rex  v.  Hide 
and  Another  (which,  together  with  a  note  upon  them,  may  be  seen  in 
the  text  and  margin  of  page  1768). 

Rex  V.  Bathurst  is  the  only  case  where  the  objection  has  not  been 
held  fatal ;  and  that  was  because  it  was  a  forcible  entry  into  a  dwelling- 
house. 

Rex  y.  Jopson  et  al.  Tr.  24,  25  G.  2  B.  R.  was  an  unlawful  assembly 
of  a  great  number  of  people.     (V.  mite  3  Burr.  1702,  in  the  margin.) 

Mr.  Justice  Wilmot.  No  doubt,  an  indictment  will  lie  at  common 
law  for  a  forcible  entry,  thougli  they  are  generally  brought  on  the  acts 
of  parliament.  On  the  acts  of  parliament,  it  is  necessary  to  state  the 
nature  of  the  estate,  because  there  must  be  restitution  ;  but  they  may 
be  brought  at  common  law. 

Here  the  words  "  force  and  arms"  are  not  applied  to  the  whole  ;  but 
if  they  were  applied  to  the  whole,  yet  it  ought  to  be  such  an  actual 
force  as  implies  a  breach  of  the  peace,  and  makes  an  indictable  offence. 
And  this  I  take  to  be  the  rule,  "  That  it  ought  to  appear  upon  the  face 
of  the  indictment  to  be  an  indictable  offence." 

Here  indeed  are  sixteen  defendants.  But  the  number  of  the  defend- 
ants makes  no  difference,  in  itself;  no  riot,  or  unlawful  assembly,  or 


SECT.  II.] 


COMMONWEALTH   V.    GIBNEY. 


83 


anything  of  that  kind  is  charged.  It  ought  to  amount  to  an  actual 
breach  of  the  peace  indictable,  in  order  to  support  an  indictment.  For, 
otherwise,  it  is  only  a  matter  of  civil  complaint.  And  this  ought  to 
appear  upon  the  face  of  the  indictment. 

Mr.  Justice  Yates  concurred.  Here  is  no  force  or  violence  shown 
upon  the  face  of  the  indictment,  to  make  it  appear  to  be  an  actual 
force  indictable;  nor  is  any  riot  charged,  or  any  unlawful  assembly. 
Therefore  the  mere  number  makes  no  difference. 

Mr.  Justice  Aston  concurred;  the  true  rule  is,  "That  it  ought  tc 
appear  upon  the  face  of  the  indictment  to  be  an  indictable  offence." 

Per  Cur.  unanimously, 

Hide  made  absolute  to  quash  this  indictment.^ 


^ 


COMMONWEALTH  v.  GIBNEY. 
Supreme  Judicial  Court  of  Massachusetts.     1861. 

{Reported  2  Allen,  150.] 

Indictment,  charging  that  the  defendants,  five  in  number,  "  together 
with  divers  others,  to  the  number  of  twelve  and  more,  to  the  jurors 
aforesaid  unknown,  being  evil  disposed  and  riotous  persons,  and  dis- 
turbers of  the  peace  of  said  commonwealth,  on  the  thirty-first  day  ot 
December  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
sixty,  at  North  Andover,  in  the  county  of  Essex  aforesaid,  with,  force 
and  arms,  to  wit,  with  clubs,  staves,  stones,  and  other  dangerous  and 
offensive  weapons,  a  certain  building  there  situate,  called  the  Union 
Hall,  the  property  of  one  Thomas  E.  Foy,  in  the  night  time,  unlawfully, 
riotously,  and  routously  did  attack  and  beset,  and  did  then  and  there 
unlawfullj',  riotously,  routouslj-,  and  outrageously  make  a  great  noise, 
disturbance,  and  affray  near  to  and  about  the  said  building,  and  did 
unlawfully,  riotousl}',  and  routously  continue  near  to  and  about  and  in 
the  said  building,  making  such  noise,  disturbance,  and  affray  for  a  long 
space  of  time,  to  wit,  for  the  space  of  one  hour,  and  the  doors  and  P 
windows  of  the  said  building  did  then  and  there  unlawfully,  riotously,  / 
and  routoush',  with  the  dangerous  and  offensive  weapons  aforesaid,  ^ 
break,  destroy,  and  demolish,  to  the  great  damage  of  the  said  Thomas^ 
E.  Fo}-,  to  the  great  terror  of  divers  good  people  of  said  commonwealth    L/ 
then  and  there  lawfully  being,  against  the  peace,  "  etc.  \A 

After  a  verdict  of  guilty  in  the  superior  court,  Peter  Gibney,  one  of   fc 
the  defendants,  moved  in  arrest  of  judgment  for  reasons  indicated  in 
the  opinion  ;  but  the  motion  was  overruled  by  Morton,  J.,   and  the , 
defendant  alleged  exceptions. 

Dewey,  J.     It  was  held  as  early  as  Regina  v.  Soley,  2  Salk.  594, 
that  judgment  should  be  arrested  and  the  indictment  held  bad,  "  be- 

1  See  Rex  v.  Storr,  3  Burr.  1698 ;  Rex  v.  Wilson,  8  T.  R.  357 ;  Cora.  v.  Shattuck, 
4  Cush.  (Mass.)  141  ;  Kilpatrick  v.  People,  5  Deuio  (N.  Y.)  277;  Com.  v.  Edwards/ 
1  Ashm.  (Pa.)  46.     See  State  v.  Burroughs,  7  N.  J.  L.  426    Com.  v.  Powell,  8  Lei  "h 
(Va.)  719.  / 


84  COMMONWEALTH   V.    GIBNEY.  [CHAP.  II. 

cause  it  is  not  said  that  the  defendants  unlawfully  assembled."  The 
proposition  thus  stated  seems  to  be  held  as  correct  in  the  later  eleraen- 
tar}-  writers.  To  maintain  an  indictment  for  a  riot,  it  is  said  in  Archb. 
Crim.  Pr.  589,  that  the  prosecutor  must  prove:  1.  The  assembling; 
2.  The  intent,  namely,  "  that  they  so  assembled  together  with  intent 
to  execute  some  enterprise  of  a  private  nature,  and  also  mutually  to 
assist  one  another  against  any  person  who  should  oppose  them  in  doing 
so.  The  intent  is  proved  in  this,  as  in  every  other  case,  by  proving 
facts  from  which  the  jury  may  fairly  presume  it."  The  definition  of  a 
riot  includes  the  statement  "  of  three  persons  or  more  assembling  to- 
gether." 1  Russell  on  Crimes,  266.  In  2  Deacon's  Crim.  Law,  1113, 
a  riot  is  said  to  be  "  a  tumultuous  meeting  of  three  or  more  persons, 
who  actually  do  an  unlawful  act  of  violence,  either  with  or  without  a 
common  cause  or  quarrel ;  "  "  or  even  do  a  lawful  act,  as  removing  a 
nuisance  in  a  violent  and  tumultuous  manner." 

The  distinction  in  criminal  treatises,  in  the  definitions  of  riots,  routs, 
and  unlawful  assemblies,  assumes  that  there  must  be  an  assembling 
together,  and  an  unlawful  assembly  ;  although  the  assembly  may  not 
have  been  unlawful  on  the  first  coming  together  of  the  parties,  but 
becomes  so  by  their  engaging  in  a  common  cause,  to  be  accomplished 
with  violence  and  in  a  tumultuous  manner.  And  the  precedents  for 
indictments  for  a  riot,  with  the  exception  of  a  single  one  in  Davis's 
Precedents,  the  others  in  that  book  being  different,  all  allege  an  un- 
lawful assembling  together.  This  seems  to  be  a  necessary  form  in  a 
proper  indictment  for  a  riot,  although  the  proof  of  such  unlawful  as- 
sembly may  be  made  by  showing  three  or  more  persons  acting  in  con- 
cert in  a  riotous  manner,  as  to  using  violence,  exciting  fear,  etc. 

The  present  indictment  cannot  therefore  be  sustained  as  a  good  in- 
dictment for  a  riot,  for  want  of  proper  allegations  of  the  assembling 
together  of  three  or  more  persons. 

It  cannot  be  sustained  as  an  indictment  for  forcible  entry,  the  alle- 
gations not  being  adapted  to  a  charge  of  that  offence. 

It  cannot  be  sustained  as  an  indictment  for  maUcious  mischief,  for 
the  like  reason.  Nor  can  it  be  maintained  as  a  charge  at  common  law 
for  a  disturbance  of  the  peace.  A  man  cannot  be  indicted  for  a  mere 
trespass.  No  indictment  lies  at  common  law  for  mere  trespass  com- 
mitted to  land  or  goods,  unless  there  be  a  riot  or  forcible  entr}-.  The 
King  V.  AYilson,  8  T.  R.  357.  The  words  "violently  and  routously,'' 
here  used,  have  no  particular  pertinency,  except  as  terras  appropriate 
to  a  formal  indictment  for  riot,  charging  also  an  unlawful  assembly. 
In  the  present  indictment  there  is  nothing  more  alleged  than  a  tres- 
pass, with  violence.  There  is  no  allegation  that  any  person  was  in  the 
building,  but  only  of  a  breaking  of  doors  and  windows  of  a  building, 
which  might  be  a  mere  trespass. 

If  the  case  was  a  proper  one  for  an  indictment  for  a  riot,  as  it  prob- 
ably was,  that  offence  not  being  properly  charged,  the  indictment  is 
bad,  and  the  motion  in  arrest  of  judgment  must  prevail. 

Judgment  arrested. 


SECT.  II.]  KESPUBLICA    V.    TEISCIIER.  85 

RESPUBLICA  V.  TEISCHER. 

Supreme  Court  of  Pennsylvania.      1788. 

[Reported  1  Dallas,  335.] 

TnE  defendant  bad  been  convicted  in  the  count}'  of  Berks  upon  an 
indictment  for  maliciously,  wilfully,  and  wickedly  killing  a  horse  ;  and 
upon  a  motion  in  arrest  of  judgment,  it  came  on  to  be  argued  whether 
the  offence,  so  laid,  was  indictable. 

Sergeant,  in  support  of  the  motion,  contended  that  this  was  an  in- 
jury of  a  private  nature,  amounting  to  nothing  more  than  a  trespass  ; 
and  that  to  bring  the  case  within  the  general  rule  of  indictments  for 
the  protection  of  society,  it  was  essential  that  the  injury  should  be 
stated  to  have  been  perpetrated  secretly  as  well  as  maliciously,  —  which 
last  he  said  was  a  word  of  mere  form,  and  capable  of  an  indefinite 
application  to  every  kind  of  mischief.  To  show  the  leading  distinction 
between  trespasses  for  which  there  is  a  private  remedy  and  crimes 
for  which  there  is  a  public  prosecution,  he  cited  Hawk.  PI.  Cr.  210, 
lib.  2,  c.  22,  8.  4  ;  and  he  contended  that  the  principle  of  several 
cases,  in  which  it  was  determined  an  indictment  would  not  lie,  applied 
to  the  case  before  the  court.     2  Stra.  793  ;  1  Stra.  679. 

The  Attorney-General  observed,  in  reply,  that  though  he  had  not 
been  able  to  discover  any  instance  of  an  indictment  at  common  law 
for  killing  an  animal,  or,  indeed,  for  any  other  species  of  malicious 
mischief,  yet  that  the  reason  of  this  was  probably  the  early  interfer- 
ence of  the  statute  law  to  punish  offences  of  such  enormity  ;  for  that 
in  all  the  precedents,  as  well  ancient  as  modern,  he  had  found  the 
charge  laid  co/(fra /onnam  statnti,  except  in  the  case  of  an  information 
for  killing  a  dog,  —  upon  which,  however,  he  did  not  mean  to  rely. 
10  Mod.  337. 

He  said  that  the  law  proceeded  upon  principle,  and  not  merely  upon 
precedent.  In  the  case  of  Wade,  for  embezzling  the  public  money,  no 
precedent  was  produced  ;  and  one  Henry  Shallcross  was  lately  con- 
demned in  Montgomery  County  for  maliciously  burning  a  barn  (not 
having  hay  or  corn  in  it),  though  there  was  certainly  no  statute  for 
punishing  an  offence  of  that  description  in  Pennsylvania.  The  prin- 
ciple, therefore,  is  that  every  act  of  a  public  evil  example  and  against 
good  morals  is  an  offence  indictable  by  the  common  law  ;  and  this 
principle  affects  the  killing  of  a  horse,  as  much,  at  least,  as  the  burn- 
ing of  an  empty  barn. 

But  he  contended  that  there  were  many  private  wrongs  which  were 
punishable  by  public  prosecution  ;  and  that  with  respect  to  these  a 
distinction  had  been  accurately  established  in  2  Burr.  1129,  where  it  is 
said  that  "  in  such  impositions  or  deceits  where  common  prudence 
may  guard  persons  against  the  suffering  from  them,  the  offence  is  not 
indictable,  but  the  party  is  left  to  his  civil  remedy  for  the  redress  of 
the  injury  that  has  been  done  him;  but  where  false  weights  and  meas- 
ures  are  used,  or  false  tokens  produced,  or  such  methods  taken  to 


/ 


86 


KESPUBLICA   V.    TEISCHER. 


[chap.  II. 


5 


V 


cheat  and  deceive  as  people  cannot  by  any  ordinarj'  care  or  prudence 
be  guarded  against,  there  it  is  an  offence  indictable."  —  Accordingly, 
in  Crown  Circ.  Comp.  231 ;  1  Stra.  595  ;  S.  C.  Crown  Circ.  Comp. 
24,  are  cases  of  private  wrongs,  and  yet  punished  by  indictment;  be- 
cause, as  it  is  said  in  Burrow,  common  prudence  could  not  have 
guarded  the  persons  against  the  injury  and  inconveniency  which  they 
respectively  sustained.  The  same  reason  must  have  prevailed  in  an 
indictment  at  Lancaster  (the  draft  of  which  remains  in  the  precedent 
book  of  the  successive  attorneys-general  of  this  State)  for  poisoning 
bread,  and  giving  it  to  some  chickens  ;  and  it  applies  in  full  force  to 
the  case  before  the  court. 

Independent,  however,  of  these  authorities  and  principles,  the  jury 
have  found  the  killing  to  be  something  more  than  a  trespass ;  and  that 
it  was  done  maliciously  forms  the  gist  of  the  indictment ;  which  must  be 
proved  by  the  prosecutor,  and  might  have  been  controverted  and 
denied  by  the  defendant.  Being  therefore  charged,  and  found  by  the 
verdict,  it  was  more  than  form ;  it  was  matter  of  substance. 

The  opinion  of  the  court  was  delivered,  on  the  15th  of  July,  by  the 
Chief  Justice. 

jM'Kean,  C.  J.  The  defendant  was  indicted  for  "  maliciously,  wil- 
fully, and  wickedly  killing  a  horse  ;  "  and  being  convicted  by  the  jury, 
it  has  been  urged,  in  arrest  of  judgment,  that  this  offence  was  not  of 
an  indictable  nature. 

It  is  true  that  on  the  examination  of  the  cases  we  have  not  found 
the  line  accurately  drawn  ;  but  it  seems  to  be  agreed  that  whatever 
amounts  to  a  public  wrong  may  be  made  the  subject  of  an  indictment. 
The  poisoning  of  chickens,  cheating  with  false  dice,  fraudulently^  tear- 
ing a  promissory  note,  and  many  other  offences  of  a  similar  description, 
have  heretofore  been  indicted  in  Pennsylvania;  and  12  Mod.  337, 
furnishes  the  case  of  an  indictment  for  killing  a  dog,  —  an  animal  of 
far  less  value  than  a  horse.  Breaking  windows  by  throwing  stones  at 
them,  though  a  sufficient  number  of  persons  were  not  engaged  to  ren- 
der it  a  riot,  and  the  embezzlement  of  public  moneys,  have,  likewise, 
in  this  State  been  deemed  public  wrongs,  for  which  the  private  sufferer 
was  not  alone  entitled  to  redress  ;  and  unless,  indeed,  an  indictment 
would  lie,  tliere  are  some  very  heinous  offences  which  might  be  perpe- 
trated with  absolute  impunity ;  since  the  rules  of  evidence,  in  a  civil 
suit,  exclude  the  testimony  of  the  party  injured,  though  the  nature  of 
the  transaction  generally  makes  it  impossible  to  produce  any  other 
proof. 

For  these  reasons,  therefore,  and  for  many  others  which  it  is  nu- 
necessary  to  recapitulate,  as  we  entertain  no  doubt  upon  the  subject, 
we  think,  the  indictment  will  lie. 

Let  judgment  be  entered  for  the  Commonwealth.^ 

1  See  U.  S.  V.  Gideon  1  Minn.  292;  State  v.  Beekman,  3  Dntch.  (N.  J.)  124; 
Loomis  I'.  Edgerton,  19  Wend.  (N.  Y.)  419;  State  v.  Phipps,  10  Ire.  (N.  C.)  17. 


d 


SECT.  II.]  COMMONWEALTH    V.   TAYLOR.  87 

6-6" 

COMMON WEALTH  v.  TAYLOR. 

Supreme  Court  of  Pennsylvania.     1812. 

[Reported  5  Binney  277.] 

The  defendant  was  indicted  in  the  Quarter  Sessions  of  Franklin 
county  for  "that  he,  on  the  24th  of  August  1809,  about  the  hour  of  ten 
of  the  clock  m  the  night  of  the  same  day,  loith  force  and  arms  at 
Lurgan  township,  in  the  county  aforesaid,  the  dwelling  house  of  James 
Strain  there  situate,  unlawfully,  maliciously,  and  secrethj  did  break 
and  enter,  with  intent  to  disturb  the  peace  of  the  commonwealth  ;  and 
so  being  in  the  said  dwelling  house,  unlawfully,  vehemently,  and  tur- 
bulently  did  make  a  great  noise,  in  disturbance  of  the  peace  of  the 
commonwealth  and  greatly  misbehave  himself,  in  the  said  dwelling 
house  ;  and  Elizabeth  Strain,  the  wife  of  the  said  James,  greatly  did 
frighten  and  alarm,  by  means  of  which  said  fright  and  alarm  she  the 
said  Elizabeth,  being  then  and  there  pregnant,  did  on  the  7th  day  of 
September  in  the  year  aforesaid  at  the  county  aforesaid  miscarry,  and 
other  wrongs  to  the  said  Elizabeth  then  and  there  did,  to  the  evil 
example,  &c." 

The  jury  having  found  the  defendant  guilty,  the  Quarter  Sessions 
arrested  the  judgment  upon  the  ground  that  the  offence  charged  was 
not  indictable;  and  the  record  was  brought  up  to  this  Court  by  writ 
of  error. 

TiLGHMAM,  C.  J.  It  is  contended  on  the  part  of  James  Taylor,  that 
the  matter  charged  in  the  indictment  is  no  more  than  a  private  trespass, 
and  not  an  offence  subject  to  a  criminal  prosecution.  On  the  other 
hand  it  has  been  urged  for  the  commonwealth  that  the  offence  is  indict- 
able; 1st,  as  a  forcible  entry,— 2d,  as  a  malicious  mischief. 

1.  I  incline  to  the  opinion  that  the  matter  charged  in  the  indictment 
does  not  constitute  a  forcible  entry,  although  no  doubt  a  forcible  entry 
is  indictable  at  common  law.  There  must  be  actual  force  to  make  an 
indictable  offence.  The  bare  allegation  of  its  being  done  with  force 
and  arms,  does  not  seem  to  be  sufficient ;  for  every  trespass  is  said  to 
be  with  force  and  arms.  In  the  King  v.  Storr,  3  Burr.  1 698,  the  indict- 
ment was  for  unlawfully  entering  his  yard  and  digging  the  ground  and 
erecting  a  shed,  and  unlawfully  and  with  force  and  arms  putting  out 
and  expelling  one  Mr.  Sweet  the  owner  from  the  possession,  and  keep- 
ing him  out  of  the  possession.  This  indictment  was  quashed.  The 
King  V.  Bake  and  fifteen  others,  3  Burr.  1731,  was  an  indictment  for 
breaking  and  entering  with  force  and  arms  a  close  (not  a  dwelling 
house),  and  unlawfully  and  unjustly  expelling  the  prosecutors,  and 
keeping  them  out  of  possession.  This  also  was  quashed,  and  the  rule 
laid  down  by  all  the  court  was  that  there  must  be  force  or  violence 
shewn  upon  the  face  of  the  indictment,  or  some  riot  or  unlawful  assem- 
bly.    It  appears  indeed  that  in  the  King  v.  Bathurst,  cited  and  re- 


88 


COMMONWEALTH   V.   TAYLOR. 


[chap.  II. 


J 
i 


marked  by  the  judges  in  the  King  v.  Storr,  the  court  laid  considerable 
stress  on  the  circumstance  of  entering  a  dwelling  house.  We  have  no 
report  of  that  case,  but  Lord  Mansfield's  observation  on  it  (3  Burr. 
1701)  is  that  it  does  not  seem  to  him  to  lay  down  any  such  rule  as 
that  force  and  arms  alone  implies  such  force  as  will  of  itself  support  an 
indictment.  "  There,"  says  he,  "  the  fact  itself  naturally  implied  force ; 
it  was  turning  and  keeping  the  man  out  of  his  dwelling  house,  and 
done  by  three  people."  In  the  case  before  us,  there  is  the  less  reason 
to  suppose  actual  force,  as  the  entry  is  cliarged  to  have  been  made  se- 
cretly. This  might  have  been  done  through  a  door  which  was  open, 
and  yet  in  point  of  law,  it  was  a  breaking  and  entry  with  force  and  arms, 
which  is  the  allegation  in  every  action  of  trespass. 

2.  But  supposing  the  indictment  not  to  be  good  for  a  forcible  entry, 
may  it  not  be  supported  on  other  grounds?  In  the  case  of  the  Com- 
monwealth *?.  Teischer,  1  Dall.  335,  judgment  was  given  against  the  de- 
fendant for  "maliciously,  wilfully  and  wickedly  killing  a  horse." 
These  are  the  words  of  the  indictment,  and  it  seems  to  have  been  con- 
ceded by  Mr.  Sergeant,  the  counsel  for  the  defendant,  that  if  it  had 
been  laid  to  be  done  secretly,  the  indictment  would  have  been  good. 
Here  the  entering  of  the  house  is  laid  to  be  done  "  secretly,  maliciously, 
and  with  an  attempt  to  disturb  the  peace  of  the  commonwealth.  I 
do  not  find  any  precise  line  by  which  indictments  for  malicious  mischief 
are  separated  from  actions  of  trespass.  But  whether  the  malice,  the 
mischief,  or  the  evil  example  is  considered,  the  case  before  us  seems 
full  as  strong  as  Teischer's  case.  There  is  another  principle,  however, 
upon  which  it  appears  to  me  that  the  indictment  may  be  supported. 
It  is  not  necessary  that  there  should  be  actual  force  or  violence  to  c(>'i- 
stitute  an  indictaljle  offence.  Acts  injurious  to  private  persons,  which 
tend  to  excite  violent  resentment,  and  thus  produce  fighting  and  dis- 
turbance of  the  peace  of  society,  are  themselves  indictable.  To  send  a 
challenge  to  fight  a  duel  is  indictable,  because  it  tends  directly  towards 
a  breach  of  the  peace.  Libels  fall  within  the  same  reason.  A  libel 
even  of  a  deceased  person  is  an  offence  against  the  public,  because  it 
may  stir  up  the  passions  of  the  living  and  produce  acts  of  revenge. 
Now  what  could  be  more  likely  to  produce  violent  passion  and  a  dis- 
turbance of  the  peace  of  societ}',  than  the  conduct  of  the  defendant? 
He  enters  secretly  after  night  into  a  private  dwelling  house,  with  an 
intent  to  disturb  the  family,  and  after  entering  makes  such  a  noise  as 
to  terrify  the  mistress  of  the  house  to  such  a  degree  as  to  cause  a  mis- 
carriage. Was  not  this  enough  to  produce  some  act  of  desperate  vio- 
lence on  the  part  of  the  master  or  servants  of  the  family  ?  It  is  objected 
that  the  kind  of  noise  is  not  described  ;  no  matter,  it  is  said  to  have 
been  made  vehemently  and  turbulently,  and  its  effects  on  the  pregnant 
woman  are  described.  In  the  case  of  the  King  v.  Hood  (Sayers'  Eep. 
in  K.  B.  161)  the  court  refused  to  quash  an  indictment  for  disturbing 
a  family  by  violently  knocking  at  the  front  door  of  the  house  for  the 
space  of  two  hours.     It  is  impossible  to  find  precedents  for  all  offences. 


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SECT.  II.]  COMMONWEALTH    V.   TAYLOR.  89 

The  malicious  ingenuity  of  mankind  is  constant!}'  producing  new  inven- 
tions in  tlie  art  of  disturbing  their  neighbours.  To  this  invention  must 
be  opposed  general  principles,  calculated  to  meet  and  punish  them.  I 
am  of  opinion  that  the  conduct  of  the  defendant  falls  within  the  rano^e 
of  established  principles,  and  that  the  judgment  of  the  Court  below 
should  be  reversed. 

Brackenridge,  J.  It  cannot  be  inferred,  vi  termini,  that  the  word 
"  break  "  means  more  than  a  clausumf regit,  or  a  breaking  of  the  close  in 
contemplation  of  law,  even  though  a  dwelling  house  was  the  close 
broken;  because  the  trespass  might  be  by  walking  into  it,  the  door 
ojjen.  But  the  court  might  refuse  to  quash,  because  it  might  appear 
on  the  evidence  that  the  breaking  amounted  to  more  than  a  clausum 
fregit  in  trespass.  But  taking  the  entry  to  amount  to  nothing  more 
than  a  walking  in,  the  door  open,  may  not  the  motive  of  his  entry,  and 
the  use  he  made  of  it,  constitute  a  misdemeanor?  What  is  he  alleged 
to  have  done,  after  entering  the  house?  "  Wilfully,  vehemently,  and 
turbulently  did  make  a  great  noise."  How  is  a  noise  occasioned  that  is 
perceptible  to  the  ear?  It  must  be  by  an  impulse  of  the  air  on  the 
organs  of  hearing.  And  what  is  it,  whether  it  is  by  the  medium  of  air, 
or  water,  or  earth,  that  an  assault  and  battery  is  committed?  The  im- 
pulse of  the  air  may  give  a  great  shock.  Birds  have  fallen  from  the 
atmosphere  struck  by  a  mighty  voice.  This  happened  at  the  celebra- 
tion of  the  Isthmian  games,  as  related  by  Plutarch  in  his  life  of  Paulus 
P^milius.  Are  we  bound  to  consider  the  noise  gentle?  Are  we  not  at 
liberty  to  infer  the  mightiest  effort  of  the  human  lungs?  But  the 
power  of  imagination  increases  the  effect.  Armies  have  been  put  to 
rout  by  a  shout.  The  king  of  Prussia  in  the  seven  years'  war  won  a 
battle  by  the  sound  of  artillery  without  ball.  Individuals  have  been 
thrown  into  convulsions  by  a  sudden  fright  from  a  shout.  The  infant 
in  the  womb  of  a  pregnant  woman  has  been  impressed  with  a  physical 
effect  upon  the  body,  and  even  upon  the  mind,  by  a  fright.  Mary, 
queen  of  Scots,  from  the  assassination  of  Rizzio,  communicated  to  her 
offspring  the  impression  of  fear  at  the  sight  of  a  drawn  sword.  Peter 
the  Great  of  Russia  had  a  dread  of  embarking  on  water  from  the  same 
cause.  Shall  we  wonder  then  that  death  is  occasioned  to  the  embryo, 
in  the  womb  of  a  pregnant  woman,  by  a  sudden  fright?  If  in  this 
indictment  it  had  been  stated  that  the  woman  was  pregnant  with  a  liv- 
ing child,  it  might  have  been  homicide.  But  she  is  stated  to  have  mis- 
carried, which  is  the  parting  with  a  child  in  the  course  of  gestation. 
Will  not  the  act  of  the  individual  maliciouslv  occasioning  this,  consti- 
tute a  misdemeanor?  A  sudden  fright  even  by  an  entry  without  noise, 
presenting  the  appearance  of  a  spectre,  might  occasion  this,  even  though 
in  playful  frolic  ;  yet  after  such  effect,  would  not  the  law  impute  malice? 
No  person  has  a  right  to  trifle  in  that  manner  to  the  injury  of  another.^ 

1  Part  of  the  opinion  of  Brackenridge,  J.,  and  the  concurring  opinion  of  Yeates,  J., 
are  omitted.  See  State  v.  Huntley,  3  Ire.  (N.  C.)  418;  State  v.  Tolever,  5  Ire.  (N.  C.) 
452;  Penns  v.  Cribs,   Add.  (Pa.)  277  ;  Henderson  v.  Com.,  8  Gratt.  (Va  )  708. 


90  KEGINA   V.    ADAMS.  [CHAP.  II. 

EEGINA  V.  ADAMS. 

Court  for  Crown  Cases  Reserved.     1888. 

[Reported  22  Q.  B.  D.  66.] 

Case  stated  b}-  the  Recorder  of  London  for  the  opinion  of  the  Court 
for  the  Consideration  of  Crown  Cases  Reserved. 

At  the  sessions  of  the  Central  Criminal  Court,  held  on  September  17, 
1888,  J.  C.  Adams  was  tried  on  an  indictment  which  charged  him,  in 
the  third  count,  with  having,  on  June  19,  1888,  unlawfully,  wickedl}-, 
and  maliciously  written  and  published  to  E.  S.  Y.,  the  younger,  who 
was  a  good,  peaceable,  virtuous,  and  worthy  subject  of  our  Lady  the 
Queen,  in  the  form  of  a  letter  directed  to  her,  the  said  E.  S.  Y.,  the 
said  letter  containing  divers  false,  scandalous,  malicious,  and  defama- 
tory matters  and  things  of  and  concerning  the  said  E.  S.  Y.,  and  of 
and  concerning  the  character  for  virtue,  modesty,  and  morality  then 
borne  by  the  said  E.  S.  Y.  [the  letter  was  set  out],  to  the  great  damage, 
scandal,  infamy,  and  disgrace  of  the  said  E.  S.  Y.,  to  the  evil  example, 
etc.,  and  against  the  peace,  etc.-' 

At  the  close  of  the  case  for  the  prosecution  counsel  for  the  prisoner 
submitted  that  there  was  no  case  to  go  to  the  jury,  on  the  grounds 
(i)iter  alia)  that  to  write  and  send  to  a  person  letters  in  the  form  of 
those  set  out  in  the  indictment  was  not  an  indictable  offence  ;  that  the 
letter  set  out  in  the  third  count  was  neither  a  defamatory  libel  nor  an 
obscene  libel ;  and  that  there  had  been  no  publication  of  it. 

The  recorder  declined  to  stop  the  case  upon  the  objections  taken, 
but  left  it  to  the  jury,  who  convicted  the  prisoner  on  all  the  counts  of 
the  indictment. 

The  recorder  thereupon  respited  judgment  and  admitted  the  prisoner 
to  bail. 

The  question  for  the  opinion  of  the_Court  was  whether,  upon  the 
facts  stated,  the  prisoner  could  properly  be  convicted  on  aJll^or_any_of 
the  counts  of  the  indictment. 

"  LordT^oleridge,  C.  J.  It  is  unnecessary  to  discuss  some  of  the 
important  questions  which  have  been  raised  in  this  case.  Upon  those 
questions,  therefore,  I,  and  I  believe  the  other  members  of  the  Court, 
desire  to  give  no  opinion.  It  appears  to  me  that  there  is  a  ver}-  short 
and  plain  ground  upon  which  this  conviction  can  be  sustained.  It  is  a 
conviction  upon  an  indictment,  the  third  count  of  which  charges  that 
the  letter  there  set  out  is  a  defamatory  libel,  tending  to  defame  and 
bring  into  contempt  the  character  of  the  person  to  whom  it  was  sent. 
I  am  of  the  opinion  that  the  letter  is  of  such  a  character  as  that  it  tended 
to  provoke  a  breach  of  the  peace.  At  all  events,  the  sending  of  such 
a  letter  to  the  person  to  whom  it  was  sent  might,  under  the  circum- 
stances of  her  position  and  character,  reasonably  or  probably  tend  to 
provoke  a  breach  of  the  peace  on  her  part,  or  on  the  part  of  those  con- 

1  The  evidence  is  omitted.  —  Ed. 


SECT.  II.]  COMMONWEALTH   V.  WING.  91 

nected  with  her.  The  jurj'  must  be  taken  to  have  found  that  it  was  a 
defamatory  libel  which  was  calculated  to  provoke  a  breach  of  the  peace  ; 
and  on  that  short  ground  I  am  of  opinion  that  the  conviction  must  be 
affirmed  on  the  third  count  of  the  indictment. 

Manisty,  Hawkins,  Day,  and  A.  L.  Smith,  JJ.,  concurred. 

Conviction  affirmed} 

REX    y.   HATHAWAY. 
King's  Bench.     1701. 

[Reported  12  Mod.  556.] 

One  Hathaway,  a  most  notorious  rogue,  feigned  himself  bewitched 
and  deprived  of  his  sight,  and  pretended  to  have  fasted  nine  weeks 
together ;  and  continuing,  as  he  pretended,  under  this  evil  influence,  he 
was  advised,  in  order  to  discover  the  person  supposed  to  have  be- 
witched him,  to  boil  his  own  water  in  a  glass  bottle  till  the  bottle 
should  break,  and  the  first  that  came  into  the  house  after  should  be 
the  witch  ;  and  that  if  he  scratched  the  bod}-  of  that  person  till  he 
fetched  blood,  it  would  cure  him  ;  which  being  done,  and  a  poor  old 
woman  coming  by  chance  into  the  house,  she  was  seized  on  as  the 
witch  and  obliged  to  submit  to  be  scratched  till  the  blood  came ; 
whereupon  the  fellow  pretended  to  find  present  ease.  The  poor  woman 
hereupon  was  indicted  for  witchcraft,  and  tried  and  acquitted  at  Surrey 
assizes  before  Holt,  C.  J.,  a  man  of  no  great  faith  in  these  things ;  and 
the  fellow  persisting  in  his  wicked  contrivance,  pretended  still  to  be  ill, 
and  the  poor  woman,  notwithstanding  the  acquittal,  forced  b}-  the  mob 
to  suffer  herself  to  be  scratched  by  him.  And  this  being  discovered 
to  be  all  imposition,  an  information  was  filed  against  him. 


COMMONWEALTH   v.   WING. 

Supreme  Judicial  Court  of  Massachusetts.     1829. 

[Rejiorted  9  Pickering,  I.] 

The  defendant  was  indicted  for  maliciousl}'  discharging  a  gun, 
whereby  a  woman,  named  M.  A.  Gilford,  was  thrown  into  convul- 
sions and  cramps.  It  was  averred  that  the  defendant  well  knew  that 
she  was  subject  to  such  convulsions  and  cramps  upon  the  firing  of  a 
gun,  and  that  at  the  time  when  the  offence  was  committed,  he  was 
warned  and  requested  not  to  fire. 

The  case  was  tried  before  Wilde,  J. 

It  was  proved  that  M.  A.  Gifford  was  severely  affected  with  a 
nervous  disorder,  and  that  she  was  uniformly  thrown  into  a  fit  upon 
hearing  a  gun,  thunder,  or  any  other  sudden  noise,  or  by  hearing  the 

1  See  State  i-.  Roberts,  2  Marv.  (Del.)  450;  Com.  v.  Chapman,  13  Met.  (Mass.)  68. 
Compare  Rex  r.  Freake,  Comb.  13  ;  Reg.  v.  Taylor,  2  Ld.  Raym.  879 ;  State  v.  Edena, 
95  N.  C.  693. 


92 


.^ 


csjL.r»<J^^~'^r^'^ 


COMMONWEALTH   V.    WING 


[chap.  II. 


words  "  gun,  ammunition,"  &c.  mentioned.  It  was  also  proved  that 
^she  had  been  in  this  situation  for  more  than  six  years. 

It  was  furtlier  proved  that  tlie  defendant  discharged  the  gnu  in  a 
'highway,  for  the  purpose  of  killing  a  wild  goose,  at  a  place  two  or 
three  rods  from  the  house  in  which  M.  A.  Gifford  then  lived ;  which 
house  was  situated  on  a  neck  of  land  where  citizens  had  from  tin>e 
immemorial  resorted  for  the  purpose  of  fowling.  And  it  was  also 
proved  that  immediately  before  the  defendant  discharged  his  gun,  he 
was  requested  by  M.  A.  Gifford's  father  not  to  fire,  as  it  would  throw 
his  daughter  into  fits ;  and  evidence  also  was  introduced  showing  the 
defendant's  previous  knowledge  of  the  effect  produced  on  her  by  the 
report  of  a  gun,  especially  when  discharged  near  to  her. 

The  defendant  contended  that  as  he  was  engaged  in  a  lawful  occu- 
pation, and  as  M.  A.  Gifford  had  for  so  long  a  time  been  afflicted 
with  what  had  probably  become  an  incurable  disease,  he  was  not 
liable  to  punishment  for  the  commission  of  the  act  alleged  in  the 
indictment. 

The  judge  instructed  the  jury  that  if  they  believed  that  the  defen- 
dant knew,  or  had  good  reason  to  believe,  that  the  consequences 
above  mentioned  would  be  produced  by  the  firing  of  the  gun,  and  had 
notice  to  that  effect  immediately  before  the  firing,  they  should  return 
ayerdict  of  guilty ;  which  they  did  accordingly.  If  this  in^ructioa 
was  wrong,  a  new  trial  was  to  be  granted^ 


■^ 


^ 


Warren  for  the  defendant.     The  indictment  is  for  an 


alleged  of- 


-e 


R 


4>' 


fence,  which  is  technically  called  a  nuisance.  It  cannot  be  sustauied, 
because  the  act  done  was  not  to  the  annoyance  of  the  citizens  gener- 
an3\  Bac.  Abr.  Nuisance  B  ;  Rex  v.  White,  1  Burr.  333  ;  Re:!  v. 
Combrune,  1  Wils.  301  ;  Rex  v.  Wheatly,  2  Burr.  1126  ;  Rex  v.  Lloyd, 
4  Esp.  200 ;  Arnold  v.  Jefferson,  3  Salk.  248.  The  act,  in  itself,  was 
neither  malum  in  se  nor  malum  prohibitmn.  The  defendant  was  in 
tlie  exercise  of  a  lawful  employment,  and  the  injury  was  to  a  single 
person.  Her  remedy  is  by  action ;  the  Commonwealth  is  not  inter- 
ested in  the  matter.  The  dictum  of  Sewall,  C.  J.,  in  Cole  y.  Fisher, 
11  Mass.  R.  139,  —  that  where  the  discharge  of  a  gun  is  unnecessary, 
a  matter  of  idle  sport  and  negligence,  and  still  more  where  it  is  ac- 
compamed  with  purposes  of  wanton  and  deliberate  mischief,  the 
iparty  is  liable""as~apublic  offender,  — does  not  apply  to  this  case  ;  for 
th"e  act  of  the  defendant  does  not  come  within  either  of  those  de- 
scriptions, and  it  was  not  done  to  the  common  danger  of  the  citizens, 
b"ut.  on  a  neck  of  land  where  citizens  had  immemor ially  resorted  for 
thepurpose^fjowling^ 

The  nature  of  the  disease  is  such  that  a  citizen  was  not  obliged, 
from  regard  to  it,  to  refrain  from  his  usual  lawful  pursuits.  AVhere 
a  person  is  suffering  under  a  complaint  which  is  aggravated  by  the 
transaction  of  the  ordinary  business  of  society,  it  is  better  that  he 
should  suffer  than  that  the  business  of  the  community  should  be  sus- 
pended.    It  is  certainly  better  that  he  should  be  left  to  that  remedy 


^ 


SECT.  II.] 


I 

U 


KEX   V.   MAUD. 


which  the  law  gives  every  man  for  a  violation  of  his  private  rights. 
If  the  above  doctrine  is  not  sound  as  applied  to  temporary  diseases, 
it  is  when  the  affection  is  of  so  long  standing  as  in  this  case.  An 
action  cannot  be  sustained  for  an  injury  which  the  party  might  have 
avoided  by  oidinary  care.  It  was  the  duty  of  the  woman  jtojm^e 
removed  from  a  neigliborhood  where  the  citizens  have  immemorially 
pursued  an  occupation  which Tnjuriously~affected  her  healtli.  Butter- 
field  V.  Forrester,  11  p:ast,  60 ;  Smith  v.  Smith,  2  l^ick.  621  ;  Rex  v. 
Cross,  2  Carr.  &  Payne,  483. 

jMorton,  Attorney-General,  contra,  cited  4  Bl.  Com.  197;  and  Cole 
V.  Fisher,  11  Mass.  R.  139. 

Pakkek,  C.  J.,  delivered  the  opinion  of  the  court.  If  the  indict- 
ment were  for  a  nuisance,  the  authorities  cited  by  the  defendant's 
counsel  would  clearly  show  that  it  could  not  be  sustained  ;  for  the 
most  that  could  be  made  of  it  would  be  a  private  nuisance,  for  which 
an  action  on  the  case  only  would  lie.  But  we  think  the  offence  de- 
scribed is  a  misdemeanor,  and  not_  a  nuisance,  it  w^as  a  wanton  "act 
of  mischief,  necessarily  injurious  to  tiie  person  aggrieved,  after  fujl 
notice  of  the  consequences,  and  a  request  to  desist.  The  jury  have 
found  that  the  act  was  maliciously  done.  ~  ~~       " 

In  the  case  of  Cole  v.  l^islier,  li  liass.  R.  137,  Chief  Justice  Sewall^ 
in  delivering  the  opinion  of  the  court,  speaking  of  the  discharging  of  | 
guns  unnecessarily,  says,  if  it  is  a  matter  of  idle  sport  and  negligence, 
and  still  more  when  tlie  act  is  accompanied  with  purposes  of  wanton 
or  deliberate  mischief,  the  guilty  party  is  liable,  not  only  in  a  civil 
jaction,  but  as  an  offender  against  the  public  peace  and  security,  is 
|lial)le  to  be  indicted,  &c. 

Now  the  facts  proved  in  the  case,  namely,  the  defendant's  previous 
knowledge  that  the  woman  was  so  affected  by  the  report  of  a  gun  as 
to  be  thrown  into  fits,  the  knowledge  he  had  that  she  was  within 
hearing,  the  earnest  request  made  to  him  not  to  discharge  his  gun, 
show  such  a  disregard  to  the  safety  and  even  tlie  life  of  the  afflicted 
party,  as  makes  the  firing  a  wanton  and  dellljerate  act  of  mischief. 

-___  Judgment  on,  the  verdict.^ 


REX  V.   MAUD. 

Bedfordshire  Eyre.     1202. 

[Reported  1  Selden  Soc.  27.] 

Maud,  wife  of  Hugh,  was  taken  with  a  false  gallon  with  which  she 
sold  beer,  so  that  the  keepers  of  the  measures  testify  that  they  took 
her  seUing  beer  with  it.  And  since  she  cannot  defend  this,  it  is 
considered  that  she  be  in  mercy.     She  made  fine  with  two  marks. 

1  But  see  Rogers  y.  Elliott,  146  Mass.  349.  Compare  State  v.  Buckman,  8  N.  H. 
203  ;  Peoples.  Blake,  1  Wheel.  (N.  Y.)  490.  For  other  kinds  of  personal  injury,  see 
State  V.  Cooper,  2  Zab.  (N.  J.)  52;  State  r.  Slagle,  82  N.  C.  653;  Reg.  v.  Hogan, 
2  Den.  C.  C.  277;  Cora.  v.  Stoddard,  9  All.  (Mass.)  280;  Rex  v.  Treeve,  2  East  P.  C 
821  ;  State  v.  Smith,  3  Hawks  (N.  C.)  378. 


?' 


Ir-Z 


^- 


94  REGINA   V.    HANNON.  [CHAP.    II. 

Go 

ANONYMOUS. 

Common  Bench.    1309. 

[Reported  Year  Book,  2  &  3  £dw.  II  (Seld.  Sac.)  120.] 

A  MAN  was  sued  by  the  commonalty  of  the  town  of  London  for  a  tres- 
pass against  the  statute  of  forestallers  (made)  in  the  Guildhall,  and 
(the  plaintiffs)  said  that,  whereas  all  the  citizens  of  London  came  for 
their  merchandise  and  foreign  folk  came  with  their  merchandise  to 
the  city,  to  wit,  with  beasts,  sheep,  and  poultr}-,  etc.,  without  which 
the  city  cannot  be  sustained,  this  man  is  a  common  forestaller  of  all  the 
things  aforesaid,  so  that  when  he  has  bought  them  for  a  certain  sum 
he  will  sell  them  for  doul)le,  wrongfully  and  against  the  common 
.ordinance,  and  to  their  damage,  etc. 

Fasseley  for  the  defendant :  We  do  not  believe  that  you  have  war- 
rant to  try  this  plaint,  for  this  is  a  matter  which  should  be  tried  in  the 
eyre,  like  a  charge  that  a  man  is  a  common  thief,  a  common  robber, 
or  a  common  breaker  of  parks,  where  no  certain  deed  is  laid  to  his 
charge.  The  suit  cannot  be  maintained  unless  some  certain  fact  be 
mentioned ;  for,  were  it  otherwise,  every  man  might  have  this  suit, 
whereas  it  belongs  to  the  King  and  to  his  crown,  which  is  not  to  be 
dismembered.  Judgment,  whether  you  can  or  ought  to  be  received 
to  this  plaint. 

Therefore  it  was  awarded  that  they  took  nothing  of  their  plaint,  etc. 
(and  that  the  commonalty  of  London  be  amerced). 

^ 


REGINA  V.  HANNON. 

Queen's  Bench.     1704. 

[Reported  6  Mod.  311.] 

Hannon  was  indicted,  for  that  being  a  communis  deceptor  of  the 
Queen's  people,  he  came  to  the  wife  of  B.  and  made  her  believe  that 
he  had  sold  part  of  a  ship  to  her  husband,  and  upon  that  account  got 
several  sums  of  monej'  from  her. 

By  the  Court, 

First,  ^'■communis  deceptor^'  is  too  general,  and  so  is  ^'communis 
oppressor  "  "  communis  pertitbator ^''^  etc.  and  so  of  all  other  (except 
barretor  and  scold),  without  adding  of  particular  instances. 

Secondly,  The  particular  instance  alledged  here  is  of  a  private  nature ; 
if  he  had  made  use  of  any  false  token  it  would  have  been  otherwise. 

And  the  court  ordered  the  indictment  to  be  quashed. 


SECT.  II. J  REX   V.   WHEATLY.  95 


REX  V.  WHEATLY. 
King's  Bench.     1761. 

[Reported  2  Burrow,  1  l25.i] 

Defendant  was  indicted,  for  that  he,  being  a  common  brewer,  and 
intending  to  deceive  and  defraud  one  Richard  Webb,  delivered  to  him 
sixteen  gallons,  and  no  more,  of  amber  beer,  for  and  as  eighteen  gal- 
lons, which  wanted  two  gallons  of  the  due  measure  contracted  to  be 
delivered;  and  received  los  for  the  same;  to  the  evil  example,  «fec., 
and  against  the  peace,  &c.  After  conviction  before  Lord  Mansfield, 
C.  J.,  at  Guildhall,  Morton  moved  in  arrest  of  judgment. 

Mr.  31orton  and  Mr.  Yates,  who  were  of  counsel  for  the  defendant, 
objected  that  the  fact  charged  was  nothing  more  than  a  mere  breach  of 
a  civil  contract,  not  an  indictable  oflence.  To  prove  this,  they  cited 
Rex  V.  Combrun,  p.  1751,  24  G.  2  B.  R.,  which  was  exactly-  and  punc- 
tually the  same  case  as  the  present,  onl}'  mutatis  mutandis.  And 
Rex  V.  Driffield,  Tr.  1754,  27,  28  G.  2  B.  R.  S.  P.  An  indictment  for 
a  cheat,  in  selling  coals  as  and  for  two  bushels,  whereas  it  was  a  peck 
short  of  that  measure  ;  there  the  indictment  was  quashed  on  motion. 
Rex  V.  Hannah  Heath:  An  indictment  for  selling  and  delivering 
seventeen  gallons,  three  quarts,  and  one-half  pint  of  geneva  (and  the 
like  of  brandy)  as  and  for  a  greater  quantit}',  was  quashed  on  motion. 

In  1  Salk.  151.,  Nehutf  s  Case,  P.  4  Am.  B.  R.,  a  certiorari  was 
granted  to  remove  the  indictment  from  the  Old  Bailey  ;  because  it  was 
not  a  matter  criminal :  it  was  "■  borrowing  £600  and  promising  to  send 
a  pledge  of  fine  cloth  and  gold  dust,  and  sending  only  some  coarse 
cloth,  and  no  gold  dust." 

In  Tremaine,  title  Indictments  for  Cheats,  all  of  them  either  la}-  a 
conspiracy  or  show  something  amounting  to  a  false  token. 

A  mere  civil  wrong  will  not  support  an  indictment.  And  here  is  no 
criminal  charge.  It  is  not  alleged  "  that  he  used  false  measures." 
The  prosecutor  should  have  examined  and  seen  that  it  was  the  right 
and  just  quantity-. 

Mr.  Norton^  pro  rege,  offered  the  following  reasons  whj-  the  judg- 
ment should  not  be  arrested. 

The  defendant  has  been  convicted  of  the  fact.  He  ma}'  bring  a  writ 
of  error,  if  the  indictment  is  erroneous. 

1  s.  c.  1  William  Blackstone,  273.  The  statement  of  the  case  is  taken  from  the 
latter  report. 


I 


»< 


i 


1 


96 


y>^ 


Cci   >nJ*_a 


KEX   V.    WHEATLY, 


[chap.  II. 


•  y  This  is  an  indictable  offence ;  't  is  a  cheat,  a  public  fraud  in  the 
r  course  of  his  trade,  —  he  is  stated  to  be  a  brewer.  There  is  a  distinction 
between  private  frauds  and  frauds  in  the  course  of  trade.  The  same 
fact  may  be  a  ground  for  a  private  action,  and  for  an  indictment  too. 

None  of  the  cited  cases  were  after  verdict.  It  might  here  (for  aught 
that  appears  to  the  contrary)  have  been  proved  "  that  he  sold  this  less 
quantity  b\'  false  measure ;  "  and  everything  shall  be  presumed  in 
favor  of  a  verdict.  And  here  is  a  false  pretence,  at  the  least ;  and  it 
appeared  upon  the  trial  to  be  a  vei'v  foul  case. 

The  counsel  for  the  defendant,  in  reply,  said,  that  nothing  can  be 
intended  or  presumed  in  a  criminal  case  but  seciindinn  allegata  et 
probata;  it  might  happen  without  his  own  personal  knowledge.  And 
they  denied  any  distinction  between  this  being  done  privatelj'  and  its 
being  done  in  the  course  of  trade. 

Lord  Mansfield,  The  question  is,  Whether  the  fact  here  alleged 
be  an  indictable  crime  or  not.     The  fact  alleged  is :  — 

[Then  his  Lordship  stated  the  charge,  verbatim.'] 

The  argument  that  tias  been  urged  by  the  prosecutor's  counsel,  from 
the  present  case's  coming  before  the  court  after  a  verdict,  and  the  cases 
cited  being  only  of  quashing  upon  motion,  before  an}-  verdict  really  turns 
the  other  way  ;  because  the  Court  ma}-  use  a  discretion,  "  w-hether  it  be 
right  to  quash  upon  motion  or  put  the  defendant  to  demur;  "  but  after 
verdict  they  are  obliged  to  arrest  the  judgment  if  they  see  the  charge  to 
be  insufficient.  And  in  a  criminal  charge  there  is  no  latitude  of  inten- 
tion, to  include  anything  more  than  is  charged;  the  charge  must  be 
explicit  enough  to  support  itself. 

Here  the  fact  is  allowed,  but  the  consequence  is  denied  :  the  c-bjec- 
tion  is,  that  the  fact  is  not  an  offence  indictable,  though  acknowledged 
to  be  true  as  charged. 

And  that  the  fact  here  charged  should  not  be  considered  as  an  indic- 
table offence,  but  left  to  a  civil  remedy  by  an  action,  is  reasonable  and 
right  in  the  nature  of  the  thing ;  because  it  is  only  an  inconvenience 
and  injury  to  a  private  person,  arising  from  that  private  person's  own 
negligence  and  carelessness  in  not  measuring  the  liquor,  upon  receiving 
it,  to  see  whether  it  held  out  the  just  measure  or  not. 

The  offence  that  is  indictable  must  be  such  a  one  as  affects  the  i)ub- 
lic.  As  if  a  man  uses  false  weights  and  measures,  and  sells  by  them 
to  all  or  to  many  of  his  customers,  or  uses  tliem  in  the  general  course 
of  his  dealing;  so,  if  a  man  defrauds  another,  under  false  tokens.  For 
these  are  deceptions  that  common  care  and  prudence  are  not  sufficient 
to  guard  against.  So,  if  there  be  a  conspiracy  to  cheat;  for  ordinary 
care  and  caution  is  no  guard  against  this. 

Tliose  cases  are  much  more  than  mere  private  injuries :  they  are 
public  offences.  But  here,  it  is  a  mere  private  imposition  or  deception. 
No  false  weights  or  measures  are  used,  no  false  tokens  given,  no  con- 
spiracy ;  only  an  imposition  upon  the  person  he  was  dealing  with,  in 
delivering  him  a  less  quantity  instead  of  a  greater,  which  the  other 


rvjuL 


^^^cvX.«-S- 


SECT.  II.] 


REX   V.   WHEATLY. 


carelessly  accepted.     '  T  is  o\\\y  a  non-performance  of  his  contract,  for 
which  non-performance  he  may  bring  his  action. 

The  selling  an  unsound  horse,  as  and  for  a  sound  one,  is  not  indic- 
table ;  the  buyer  should  be  more  upon  his  guard. 

The  several  cases  cited  are  alone  sufficient  to  prove  that  the  offence 
here    charged    is    not  an    indictable  offence.     But  besides  these,   my 
brother   Benison    informs    me   of   another   case,  that   iias   not   been" 
mentioned  at  the  bar.     It  was  M.   6  G.  1.  B.  R.  Rex  v.  Wilders,  a  ^ 
brewer.      He  was  indicted  for  a  cheat  in  sending  in  to  Mr.  Hicks,  an 
ale-house  keeper,  so  many  vessels  of  ale  marked  as  containing  such  a  «<) 
measure,  and  writing  a  letter  to  Mr.  Hicks,  assuring  him  that  they  did   y 
contain  that  measure,  when  in  fact  they  did  not  contain  such  measure, 
but  so  much  less,   &c.     This  indictment  was  quashed  on  argument, 
upon  a  motion,  which  is  a  stronger  case  than  the  present. 

Therefore  the  law  is  clearly  established  and  settled  ;  and  I  think  on 
right  grounds  ;  but  on  whatever  grounds  it  might  have  been  originally 
established,  yet  it  ouglit  to  be  adhered  to,  after  it  is  established  and 
settled. 

Therefore  (though  I  may  be  sorry  for  it  in  the  present   case,  as 
circumstanced)  ^hejiKlgraei^^ 
Mr.  Just.  DENisoNcoacurren"'v^^ 

This  is  nothing  moi'e  than  an  action  upon  the  case  turned  into  an 
indictment.  'T  is  a  private  breach  of  contract.  And  if  this  were  to  be 
allowed  of,  it  would  alter  the  course  of  the  law,  by  making  the  injured 
person  a  witness  upon  the  indictment,  which  he  could  not  be  (for  him- 
self; hi  ^'1  action.  ^ 

Here  are  no  false  weights,  nor  false  measures,  nor  any  false  token 
at  all,  nor  any  conspiracy. 

In  the  case  of  the  Queen  y.Maccarty  et  at,  6  Mod.  301,  2  Ld.  Raym. 
1179,  there  were  false  tokens,  or  what  was  considered  as  such.  In  the 
case  of  the  Queen  u.  Jones,  1  Salk.  379,  2  Ld.  Raym.  1013,  6  Mod. 
105,  the  defendant  had  received  £20,  pretending  to  be  sent  by  one  who 
did  not  send  him.  Et  per  Cur. :  "  It  is  not  indictable,  unless  he  came 
with  false  tokens.  We  are  not  to  indict  one  man  for  making  a  fool  of 
another;  let  him  bring  his  action." 

If  there  be  false  tokens,  or  a  conspiracy,  it  is  another  case.  The 
Queen  v.  Maccarty  was  a  conspiracy,  as  well  as  false  tokens.  Rex  r. 
Wilders  was  a  much  stronger  case  than  this,  and  was  well  considered. 
That  was  an  imposition  in  the  course  of  his  trade,  and  the  man  had 
marked  the  vessels  as  containing  more  gallons  than  they  did  really 
contain,  and  had  written  a  letter  to  Mr.  Hicks,  attesting  that  they 
did  so. 

But  the  present  case  is  no  more  than  a  mere  breach  of  contract :  he 
has  not  delivered  the  quantity  which  he  undertook  to  deliver. 

The  Court  use  a  discretion  in  quashing  indictments  on  motion,  but 
they  are  obliged  to  arrest  judgment  when  the  matter  is  not  indictable. 
And  this  matter  is  not  indictable,  therefore  the  judgment  ought  to  be 
arrested.  7 


\ 


i- 


',■ 


98  KEX  V.   WHEATLY.  [CHAP.  II. 

Mr.  Just.  Foster.  We  are  obliged  to  follow  settled  and  established 
rules  already  fixed  by  former  determinations  in  cases  of  the  same  kind. 

The  ease  of  Rex  v.  Wilders  was  a  strong  case,  —  too  strong,  perhaps, 
for  there  were  false  tokens  ;  the  vessels  were  marked  as  containing  a 
greater  quantity  than  they  really  did. 

Mr.  Just.  WiLMOT  concurred.  This  matter  has  been  fully  settled 
and  estabUshed,  and  upon  a  reasonable  foot.  The  true  distinction  tiiat 
ought  to  be  attended  to  in  all  cases  of  this  kind,  and  which  will  solve 
them  all,  is  this,  —  That  in  such  impositions  or  deceits,  where  common 
prudence  may  guard  persons  against  the  suffering  from  them,  the 
offence  is  not  indictable,  but  the  party  is  left  to  his  civil  remedy  for  the 
redress  of  the  injury  that  has  been  done  him  ;  but  where  false  weights 
and  measures  are  used,  or  false  tokens  produced,  or  such  methods 
taken  to  cheat  and  deceive  as  people  cannot,  by  any  ordinary 
care  or  prudence,  be  guarded  against,  there  it  is  an  offence  indictable. 

In  the  case  of  Rex  v.  Pinkney,  P.  6  G.  2  B.  R.,  upon  an  indictment 
"  for  selling  a  sack  of  corn  (at  Rippon  market)  which  he  falsely 
affirmed  to  contain  a  Winchester  bushel,  tcbi  reveru  et  infacto  i)lurimum 
deficiebat,  t&c,"  the  indictment  was  quashed  upon  motion. 

In  the  case  now  before  us,  the  prosecutor  might  have  measured  the 
liquor  before  he  accepted  it,  and  it  was  his  own  indolence  and 
negligence  if  he  did  not.  Therefore  common  prudence  might  have 
guarded  him  against  suffering  any  inconvenience  by  the  defendant's 
offering  him  less  than  he  had  contracted  for. 

This" was  the  case  of  Rex  v.  Pinkney;  and  it  was  there  said.  That 
if  a  shop-keeper  who  deals  in  cloth  pretends  to  sell  ten  yards  of  cloth, 
but  instead  of  ten  yards  bought  of  him,  delivers  only  six,  yet  the 
buyer  cannot  indict  him  for  delivering  only  six ;  because  he  m^ght 
have  measured  it,  and  seen  whether  it  held  out  as  it  ought  to  do,  or 
not.  In  this  case  of  Rex  v.  Pinkney,  and  also  in  the  case  of  Rex  v. 
Combrun,  a  case  of  Rex  v.  Nicholson,  at  the  sittings  before  Lord 
Raymond  after  Michaelmas  term,  4  G.  2,  was  mentioned;  which  was 
an  indictment  for  selling  six  chaldron  of  coals,  which  ought  to  contain 
thirty-six  bushels  each,  and  delivering  six  bushels  short.  Lord  Ray- 
mond was  so  clear  in  it  that  he  ordered  the  defendant  to  be  acquitted. 

Per  Cur.  unanimously, 

The  judgmeiit  must  he  arrested} 

1  See  Rex  v.  Osborn,  3  Burr.  1697;  Com.  v.  Warren,  6  Mass.  72.  — Ed. 


SECT.  III.] 


COMMONWEALTH   V.    ECKERT. 


99 


SECTION  III. 

Public  Torts. 


COMMONWEALTH  v.  ECKERT. 

Court  of  Quarter  Sessions,  Pennsylvania,  1812. 

[Reported  2  Browne,  249.] 

The  defendant  was  indicted  for  a  misdemeanor,  in  cutting  and 
deadening  a  black-walnut  tree,  on  the  common,  or  public  ground, 
adjoining  the  village  of  Hanover,  the  propert}'  of  which  was  vested  in 
certain  trustees,  for  the  use  of  the  inhabitants  of  said  town,  by  deed 
from  the  original  owner  of  the  land. 

Boicie,  for  the  defendant.  It  is  a  rule  in  morality,  as  well  as  in 
charity,  to  apply  an  innocent  motive,  rather  than  a  malicious  one,  to 
have  actuated  the  defendant.  A  crime  or  misdemeanor  indictable, 
must  be  a  violation  of  some  known  public  law.  4  Bl.  Com.  5  ;  1  Hawk. 
P.  C.  366,  7,  sect.  1.  Act  of  Assembly  against  taking  off  or  breaking 
knockers  on  doors,  spouts,  &c.,  breaking  down  or  destroying  signs, 
&c.  Read  Dig.  7,  Act  of  1772.  These  were  offences  not  indictable 
at  common  law;  and  therefore  the  necessity  of  the  statute.  A  number 
of  cases  of  a  private  nature  are  not  indictable.  2  Hawk.  P.  C.  301. 
Such  as  breaking  closes,  &c.  3  Burr.  1698.  Cases  that  apply  to  indi- 
viduals or  to  a  parish  are  not  indictable,  and  there  is  no  difference  in 
this  case  from  that  of  six,  eight,  or  ten  tenants  in  common  of  a  prop- 
erty ;  and  one  of  the  number  cutting  a  tree,  an  indictment  could  not  be 
supported  against  him  that  did  the  act. 

Per  Curiam,  Franklin,  President,  to  the  jury  :  — 
The  defendant  is  charged  with  a  misdemeanor,  in  cutting  and  dead- 
ening a  black-walnut  tree,  standing  on  public  ground  adjoining  the 
town  of  Hanover,  which  ground  appears  to  be  vested  by  deed  in  cer- 
tain trustees,  for  the  use  and  benefit  of  all  the  inhabitants  of  said 
town.  \  This  tree  was  kept  and  appropriated,  by  the  people  of  that 
place,  for  shade  and  ornament.  \ 

The  doctrine  on  subjects  of  this  kind  is  well  laid  down  by  the  late 
Chief  Justice  McKean.  1  Dall.  335.  Whatever  amounts  to  a  public 
wrong,  as  killing  a  horse,  poisoning  chickens,  and  the  like,  is  the  sub- 
ject of  an  indictment  for  a  misdemeanor. 

I   Malice  forms  the  guilt  of  the  indictment.     Any  evil  design,  proceed- 
ing from  a  depraved  or  wicked  heart. 

j      If  you  should  consider  the  tree  was  useful  for  public  convenience, 

ornament,  and  shade  (which  we  think  has  been  fully  proved),  you  may 

1  convict  the  defendant ;  if  not,  acquit  him.^  Verdict,  Guilty. 

1  See  Resp.  v.  Powell,  1  Dall.  (Pa  )  47. 


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100  HEX   V.    RICHARDS.  [CHAP.  11. 

V 

REX   V.   RICHARDS. 

King's  Bench.     1800. 

[Reported  8  T.  R.  634.] 

This  was  an  indictment  against  the   defendants  for  not  repairing 
a  road.     The  indictment  stated  that  by  virtue  of  an  act  of  parliament, 
31  Geo.  3.,  intitled  "  an  act  for  draining  and  dividing  a  certain  moor 
or  tract  of  waste  land  called  King's  sedgmore  in  the  county  of  Somer- 
set"  it  was  enacted  that  certain  commissioners  therein  named  should 
before  making  any  allotments  of  the  said  moor  set  out  and  appoint  such 
private  roads  and  drove-ways  over  the  same  as  in  the  judgment  of  the 
said  commissioners  should  be  necessary  and  convenient ;  and  that  all 
private  roads  and  ways  so  to  be  set  out  should  be  made  and  repaired 
at  the  expense  of  all  or  any  of  the  persons  interested  in  the  said  moor 
and  in  such   manner  as  the  said    commissioners  should   direct;  that 
certain  commissioners  under  the  act  in  execution  of  the  powers  thereby 
vested  in  them  by  their  award  set  out  and  appointed  a  certain  private 
road  and  drove-way  in  over  and  upon  the  said  moor  to  be  a  private 
road  and  drove-way  to  be  called  Henley  Drove- way  (describing  it)  ; 
that  the  said  commissioners    also  awarded   that   the  said  drove-way 
should  be  for  the  benefit  use  and  enjoyment  of  the  several  owners 
tenants  and  occupiers  for  the  time  being  of  all  and  singular  the  tene- 
ments in  the  several  parishes  or  hamlets  of  Highham  Lowham  AUcr 
Pitney  Long  Sutton  Huish  Episcopi  Butleigh  Ashcott  and  Greinton  in 
the   said   county  in    respect  whereof  and   of  the   rights   of  common 
severally  appurtenant  thereto  the  divisions  and  allotments  of  the  said 
moor  were  thereby  assigned  and  allotted  unto  the  same  parishes  or 
hamlets  respectively;  that  the  said  commissioners  thereby  ordered  and 
directed  that  the  said  drove-way  should  for  ever  thereafter  be  repaired 
by  the  several  owners  tenants  and  occupiers  for  the  time  being  of  all 
and  singular  the  tenements  in  the  several  parishes  or  hamlets  of  High- 
ham  Lowham  AUer  Pitney  Long  Sutton  and  Huish  Episcopi  ia  respect 
whereof  and  of  the  rights  of  common  severally  appurtenant  thereto  the 
divisions  and  allotments  of  the  moor  were  thereby  assigned  and  allotted 
unto  the  same  parishes  or  hamlets  respectively  in  equal  shares  and  pro- 
portions, when  and  so  often  as  need  should  be  &c ;  by  reason  whereof 
the  said  private  road  and  drove-waj"  became  and  was  a  private  road 
and  drove-way  for  the  purposes  above  mentioned,  and  by  virtue  of  the 
said  act  and  of  the  said  award  liable  for  ever  hereafter  to  be  from  time 
to  time  amended  and  kept  in  repair  in  the  manner  and  b}'  the  means 
aforesaid  ;  that  on  &c.  the  said  way,  called  Henley  Drove- Way,  was 
ruinous  and  in  decay  for  want  of  needful  reparation   thereof;    that 
J.  Richards  late  of  Highham,  and  the  five  other  defendants,  (describ- 
ing them  respectively  as  of  the  parishes  of  Lowham,  Aller,  Pitney, 
Long  Sutton,  and  Huish   Episcopi)  being  severally  and  respectively 
owners   tenants   and   occupiers  of    certain  tenements   in  the   several 


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SECT.  III.]  REX  V.   RICHARDS.  101 

parishes  or  hamlets  of  Highham  Lowham  AUer  Pitne}'  Long  Sutton 
and  Huish  Episeopi,  in  respect  whereof  and  of  the  rights  of  common 
severally  appurtenant  thereto  the  divisions  and  allotments  of  the  said 
moor  were  thereby  assigned  unto  the  same  parishes  or  hamlets,  and 
being  persons  interested  in  the  said  moor,  and  by  virtue  of  the  premises 
liable  to  keep  in  repair  and  amend  the  said  drove-way,  had  not  duly 
repaired  and  amended  the  same  &c.  The  defendants  pleaded  not 
guilty;  and  on  the  trial  at  the  last  assizes  at  Bridgewater  before 
Mr.  Justice  Grose  the  jur}-  found  a  special  verdict.^  When  this  case 
was  called  on  in  the  paper  for  argument,  The  Court  asked  the  prose- 
cutor's counsel  on  what  ground  it  could  be  contended  that  this  was  an 
indictable  offence,  the  road  in  question  being  only  a  private  road? 

J*raed,  for  the  prosecutor,  answered  that  this  though  a  private  road 
was  set  out  by  virtue  of  a  public  act  of  parliament,  under  which  the 
defendants  were  directed  to  repair  it ;  that  consequently  the  not  repair- 
ing was  a  disobedience  of  a  public  statute,  and  therefore  the  subject 
of  an  indictment.  That  this  might  be  considered  to  a  certain  degree 
as  concerning  the  public  ;  that  even  "  a  private  act  of  parliament  may 
be  given  in  evidence  without  comparing  it  with  the  record,  if  it  con- 
cern a  whole  count}',  as  the  act  of  Bedford  Levels."  12  Mod.  216. 
And  that  there  was  no  other  remedy  than  the  present,  because  it 
appeared  b}'  the  special  verdict  that  there  were  no  less  than  two 
hundred  and  fifty  persons  who  were  liable  to  the  repair  of  this  road, 
and  that  the  difficulty  of  suing  so  many  persons  together  was  almost 
insuperable. 

But  the  Court  interposed,  and  said  that,  however  convenient  it 
might  be  that  the  defendants  should  be  indicted,  there  was  no  legal 
ground  on  which  this  indictment  could  be  supported.  That  the  known 
rule  was  that  those  matters  onl}'  that  concerned  the  public  were  the 
subject  of  an  indictment.  That  the  road  in  question  being  described 
to  be  a  private  road  did  not  concern  the  public,  nor  was  of  a  public 
nature,  but  merely  concerned  the  individuals  who  had  a  right  to  use  it. 
That  the  question  was  not  varied  by  the  circumstance  that  many  indi- 
viduals were  liable  to  repair,  or  that  man}'  others  were  entitled  to  the 
benefit  of  it ;  that  each  party  injured  might  bring  his  action  against 
those  on  whom  the  duty  was  thrown.  That  the  circumstance  of  this 
road  having  been  set  out  under  a  public  act  of  parliament  did  not  make 
the  non-repair  of  it  an  indictable  offence  ;  that  many  public  acts  are 
passed  which  regulate  private  rights,  but  that  it  never  was  conceived 
that  an  indictment  lay  on  that  account  for  an  infringement  of  such 
rights.  That  here  the  act  was  passed  for  a  private  pui*i30se,  that  of 
dividing  and  allotting  the  estates  of  certain  individuals.  That  even 
if  it  were  true  that  there  was  no  remedy  by  action  the  consequence 
would  not  follow  that  an  indictment  could  be  supported  ;  but  that 
in  truth  the  parties  injured  had  another  legal  remedy. 

Judgment  for  the  defendants. 
1  The  special  verdict  is  omitted.  — Ed. 


102  COMMONWEALTH    V.    KING.  [CHAP.  II. 

(^'^ 

COMMONWEALTH  v.    KING. 

Supreme  Judicial  Court  of  Massachusetts.     1847. 

[Reported  13  Met.  115.] 

The  indictment,  in  this  case,  alleged  that  there  was  a  common  and 
public  highway  in  the  town  of  Sutton,  called  the  Old  Central  Turnpike, 
and  that  the  defendant,  on  the  1st  of  August  1846,  "  did  unlawfully 
and  injuriously  put,  place,  lay  and  continue  a  large  quantity  of  stones, 
in  and  upon  a  part  of  said  highway,  to  wit,  upon  a  space  thereof  ten 
rods  long  and  one  rod  wide,  and  the  said  stones,  so  placed  as  aforesaid, 
he  the  said  Wm.  King,  from  said  first  day  of  August,  until  the  finding 
of  this  bill,  unlawfully  and  injuriously  did  keep,  continue  and  maintain, 
in  and  upon  said  highway,  whereby  the  same  has  been,  during  all  the 
time  aforesaid,  and  still  is,  greatly  narrowed,  obstructed  and  stopped 
up,"  &c.  "against  the  peace,"  &c.  "and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided."  ^ 

Dewey,  J.  .  .  .  The  next  enquiry  is,  whether  the  facts  alleged  con- 
stitute an  offence  at  common  law.  Upon  this  point  we  have  no  doubt. 
Bv  the  location  of  a  public  highway,  with  certain  defined  exterior  limits, 
the  public  acquire  an  easement  coextensive  with  the  limits  of  such 
highway.  Whoever  obstructs  the  full  enjoyment  of  that  easement,  by 
making  deposits,  within  such  limits  of  the  located  highway,  of  timber, 
stones  or  other  things,  to  remain  there  and  occupy  a  portion  of  such 
public  highway,  is  guilty  of  a  nuisance  at  common  law. 

It  was  contended  by  the  counsel  for  the  defendant,  that  the  rights  of 
the  public  are  confined  exclusively  to  the  made  or  travelled  road,  or  to 
that  part  which  might  be  safely  and  properly  used  for  travelling.;  and 
that  a  deposit  of  timber,  stones  or  otlier  articles,  upon  a  part  of  the 
located  highway,  which,  from  its  want  of  adaptation  to  use  for  travel, 
could  not  be  thus  enjoyed,  —  as  a  portion  of  the  way  on  which  there 
was  a  high  bank,  or  a  deep  ravine,  —  would  not  subject  the  party  to  an 
indictment  for  a  nuisance  upon  the  highway.  This  principle  is  sup- 
posed to  be  sanctioned  by  the  decisions  of  this  court  in  reference  to  the 
rights  of  travellers,  holding  that  such  travellers  are  to  use  the  travelled 
or  made  road,  and  that  if  such  road  is  of  suitable  width,  and  kept  in 
proper  repair,  the  town  may  have  fully  discharged  its  duty,  althougli 
it  has  not  made  and  kept  in  repair  a  road  of  the  entire  width  of  the 
located  highway.  But  there  is  a  manifest  distinction  between  the  two 
cases.  In  the  case  supposed,  the  traveller  has  all  the  benefits  of  a 
public  way  secured  to  him.  He  only  requires  a  road  of  proper  width, 
and  kept  in  good  repair.  But  the  town,  on  the  other  hand,  to  enable 
itself  to  discharge  its  obligation  to  the  public,  requires  the  full  and 

1  Only  so  much  of  the  case  as  involves  the  question  of  a  nuisance  at  common  law 
is  given.  —  Ed. 


SECT.  UI.]  ■      PEOPLE    V.    RUGGLES.  103 

entire  use  of  the  whole  located  highway.  The  space  between  the  made 
road  and  the  exterior  limits  of  the  located  highway  may  be  required 
for  various  purposes  ;  as  for  maliing  and  keeping  in  repair  the  travelled 
path  ;  for  making  sluices  and  water-courses ;  for  furnishing  earth  to 
raise  the  road.  And,  not  unfrequently,  from  the  location  of  the  road 
and  from  its  exposure  to  be  obstiucted  by  snow,  the  entire  width  of 
the  located  road  is  required  to  be  kept  open,  to  guard  against  accumu- 
lations of  snow  that  might  otherwise  wholly  obstruct  the  public  travel 
at  such  seasons.  For  these  and  other  uses,  in  aid  of  what  is  the  lead- 
ing object,  the  keeping  in  good  repair  of  the  made  or  travelled  road, 
the  general  easement  in  the  public,  acquired  by  the  location  of  a  high- 
way, is  coextensive  with  the  exterior  limits  of  the  located  highway ; 
and  the  question  of  nuisance  or  no  nuisance  does  not  depend  upon  the 
fact,  whether  that  part  of  the  highway,  which  is  alleged  to  have  been 
unlawfully  entered  upon  and  obstructed  by  the  defendant,  was  a  portion 
of  the  highway  capable  of  being  used  by  the  traveller.  Whether  it  be 
so  or  not,  an  entry  upon  the  located  highway,  and  occupation  of  any 
portion  of  it  by  deposits  of  lumber,  stones,  &c.,  would  be  a  nuisance, 
and  subject  the  party  to  an  indictment  therefor. '^ 


PEOPLE  V.  RUGGLES. 
Supreme  Court  of  New  York.     1811. 

[Reported  8  Johns.  290.] 

•Indictment  for  blasphemy.  After  conviction  the  record  was  removed 
to  the  Supreme  Court.  Wendell,  for  the  prisoner,  now  contended  that 
the  oflence  charged  in  the  indictment  was  not  punishable  by  the  law  of 
this' state,  though,  he  admitted,  it  was  punishable  by  the  common  law 
of  England,  where  Christianity  makes  part  of  the  law  of  the  land,  on 
account  of  its  connection  with  the  established  church.^ 

Kent,  C.  J.  And  wh}'  should  not  the  language  contained  in  the 
indictment  be  still  an  offence  with  us  ?  There  is  nothing  in  our  man- 
ners or  institutions  which  has  prevented  the  application  or  the  necessity 
of  this  part  of  the  common  law.  We  stand  equally  in  need,  now  as 
formerly,  of  all  that  moral  discipline,  and  of  those  principles  of  virtue, 
which  help  to  bind  society  together.  The  people  of  this  state,  in  com- 
mon with  the  people  of  this  country,  profess  the  general  doctrines  of 
Christianity,  as  the  rule  of  their  faitli  and  practice  ;  and  to  scandalize 
the  author  of  these  doctrines  is  not  only,  in  a  religious  point  of  view, 
extremelyimpious,  but,  even  in  respect  to  the  obligations  due  to  soci- 

1  See  Hall's  Case,  1  Mod.  76 ;  State  v.  Peckard,  5  Ilarr.  (Del.)  500 ;  State  v.  Use- 
ful Manufactures  Society,  44  N.  J.  Law  502  ;  People  i'.  Cunningham,  1  Den.  (N.  Y.) 
524. 

2  This  short  statement  is  substituted  for  that'of  the  reporter.  Only  so  much  of  the 
opinion  is  given  as  discusses  the  argument  above  advanced.  —  Ed. 


104  PEOPLE    V.    RUGGLES.  [CHAP.  II. 

ety,  is  a  gross  violation  of  decenc}'  and  good  order.  Nothing  could  be 
more  offensive  to  the  virtuous  part  of  the  communitv,  or  more  injurious 
to  the  tender  morals  of  the  3'oung,  than  to  declare  such  profauit}-  law- 
ful. It  would  go  to  confound  all  distinction  between  things  sacred  and 
profane  ;  for  to  use  the  words  of  one  of  the  greatest  oracles  of  human 
wisdom,  "  profane  scofBng  doth  b}-  little  and  little  deface  the  reverence 
for  religion  ;  "  and  who  adds,  in  another  place,  "two  principal  causes 
have  I  ever  known  of  atheism, — curious  controversies  and  profane 
scoffing."  (Lord  Bacon's  Works,  vol.  ii,  291,  503.)  Things  which 
corrupt  moral  sentiment,  as  obscene  actions,  prints  and  writings,  and 
even  gross  instances  of  seduction,  have,  upon  the  same  principle,  been 
held  indictable  ;  and  shall  we  form  an  exception  in  these  particulars  to 
the  rest  of  the  civilized  world?  No  government  among  an}-  of  the 
polished  nations  of  antiquity,  and  none  of  the  institutions  of  modern 
Europe  (a  single  and  monitory  case  excepted),  ever  hazarded  such  a 
bold  experiment  upon  the  solidity  of  the  public  morals,  as  to  permit 
with  impunit}',  and  under  the  sanction  of  their  tribunals,  the  general 
religion  of  the  community'  to  be  openly  insulted  and  defamed.  The 
ver}'  idea  of  jurisprudence  with  the  ancient  lawgivers  and  philosophers 
embraced  the  religion  of  the  country.  Jurisprudeiitia  est  dlvinarum 
atque  hvmanaruvi  rerum  notitia.  (Dig.  b.  1.  10.  2.  Cic.  De  Legibus, 
b.  2.  passim.) 

The  free,  equal,  and  undisturbed  enjoyment  of  religious  opinion, 
whatever  it  may  be,  and  free  and  decent  discussions  on  any  religious 
subject,  is  granted  and  secured ;  but  to  revile,  with  malicious  and  blas- 
phemous contempt,  the  religion  professed  by  almost  the  whole  commu- 
nit}',  is  an  abuse  of  that  right.  Nor  are  we  bound,  by  any  expressions 
in  the  constitution,  as  some  hjive  strangeh*  supposed,  either  not  to 
punish  at  all,  or  to  punish  indiscriminately  the  like  attacks  upon  the 
religion  of  Mahomet  or  of  the  grand  Lama ;  and  for  this  plain  reason, 
that  the  case  assumes  that  we  are  a  Christian  people,  and  the  morality 
of  the  country  is  deepl}'  ingrafted  upon  Christianit\',  and  not  upon  the 
doctrines  or  worship  of  those  impostors.  Besides,  the  offence  is  crimen 
malitice,  and  the  imputation  of  malice  could  not  be  inferred  from  any 
invectives  upon  superstitions  equall}'  false  and  unknown.  We  are  not 
to  be  restrained  from  animadversion  upon  offences  against  public  de- 
cency, like  those  committed  b}-  Sir  Charles  Sedley  (1  Sid.  168),  or  by 
one  RoUo  (Sa3-er,  158),  merely  because  there  may  be  savage  tribes,  and 
perhaps  semi-barbarous  nations,  whose  sense  of  shame  would  not  be 
affected  by  what  we  should  consider  the  most  audacious  outrages  upon 
decorum.  It  is  sufficient  that  the  common  law  checks  upon  words  and 
actions,  dangerous  to  the  public  welfare,  apply  to  our  case,  and  are 
suited  to  the  condition  of  this  and  every  other  people  whose  manners 
are  refined,  and  whose  morals  have  been  elevated  and  inspired  with  a 
more  enlarged  benevolence,  by  means  of  the  Christian  religion.  ^ 

1  Ace.  Updegraph  v.  Com.,  1 1  S.  &  R.  (Pa )  394.  —  Ed. 


SECT.  III.]  STATE   V.    LINKHAW.  105 

67 

REGINA  V.    BRAD  LAUGH. 

ASSIZES. 

[Keported  15  Cox  C.  C.  217.] 

Lord  Coleridge,  C.  J.^  .  .  .  .  But  I  have  told  you  that,  with  re- 
gard to  these  Ubels,  the}'  are,  in  m}'  judgment,  in  any  view  of  the  law, 
blasphemous  libels.  It  is  not  merely  that  they  asperse  the  doctrine  of 
Christianity  ;  it  is  not  merely  that  they  question  particular  portions  of 
the  Hebrew  Scriptures.  I  should  suppose  that  there  are  few  reasoning, 
thoughtful  men  to  whom  the  character  of  David  and  the  acts  of  Jehu 
may  not  have  occasioned  considerable  question ;  and  to  find  them  rep- 
resented as  approved  by  an  all-pure  and  all-merciful  God  ma}-  and  must 
have  raised  very  strong  doubts.  And  if  these  things  were  argued 
with  due  gravity  and  propriety,  I  for  one  would  never  be  a  party,  unless 
the  law  were  clear,  to  saying  to  any  man  who  put  forward  his  views  on 
those  most  sacred  things,  that  he  should  be  branded  as  apparently 
criminal  because  he  differed  from  the  majority  of  mankind  in  his  relig- 
ious views  or  convictions  on  the  subject  of  religion.  If  that  were  so, 
we  should  get  into  ages  and  times  which,  thank  God,  we  do  not  live  in, 
when  people  were  put  to  death  for  opinions  and  beliefs  which  now  al- 
most all  of  us  believe  to  be  true.  It  is  not  a  question  of  that  sort  at  all. 
It  is  a  question,  first  of  all,  whether  these  things  are  not  in  any  point 
of  view  blasphemous  libels,  whether  they  are  not  calculated  and  intended 
to  insult  the  feelings  and  the  deepest  religious  convictions  of  the  great 
majorit}''  of  the  persons  amongt  whom  we  live  ;  and  if  so,  the}'  are  not 
to  be  tolerated  any  more  than  other  nuisance  is  tolerated.  We  must 
not  do  things  that  are  outrageous  to  the  general  feeling  of  propriety 
among  the  persons  amongst  whom  we  live. 


CoV 


STATE  V.  LINKHAW. 
Supreme  Court  of  North  Carolina.     1873. 

[Reported  69  N.  C.  214.] 

Settle,  J.  The  defendant  is  indicted  for  disturbing  a  congre- 
gation while  engaged  in  divine  worship,  and  the  disturbance  is 
alleged  to  consist  in  his  singing,  which  is  described  to  be  so  peculiar 
as  to  excite  mirth  in  one  portion  of  the  congregation  and  indigna- 
tion in  the  other. 

From    the   evidence   reported   by  his  honor   who   presided   at   the 

1  An  extract  from  the  charge  only  is  given.  —  Ed. 


106 


1;EX    v.    LYNN. 


[chap.  II. 


1 


trial,  it  appears  that  at  the  end  of  each  verse  his  voice  is  heard 
after  all  the  other  singers  have  ceased,  and  t-liat  the  disturbance  is 
decided  and  serious;  that  the  church  members  and  authorities 
expostulated  with  the  defendant  about  his  singing  and  the  disturb- 
ance growing  out  of  it;  to  all  of  which  he  replied  ''that  he  would 
worship  his  God,  and  that  as  a  part  of  his  worship  it  was  his  duty 
to  sing."  It  was  further  in  evidence  that  the  defendant  is  a  strict 
member  of  the  church,  and  a  man  of  most  exemplary  deportment. 

"  It  was  not  contended  by  the  State  upon  the  evidence  that  he 
had  any  intention  or  purpose  to  disturb  the  congregation ;  but  on  the 
contrary,  it  was  admitted  that  he  was  conscientiously  taking  part  in 
the  religious  services." 

UtMs  admission  by  the  State  puts  an  end  to  the  prosecution.  It  is 
true,  as  said  by  his  honor,  that  a  man  is  generally  presumed  to  intend 
consequences  of  his  acts,  but  here  the  presumption  is  rebutted  by  a  fact 
admitted  by  the  State. 

It  would  seem  that  the  defendant  is  a  proper  subject  for  the  disci- 
pline of  his  church,  but  not  for  the  discipline  of  the  courts. 

Ve?iire  de  novo} 


Ja^     I^EX  V.  LYNN. 


King's  Bench.     1789. 

[Reported  Leach  {ith  ed.),  497.] 

Lynn  had  been  convicted  of  a  misdemeanor  on  an  indictment  which 
charged  that  he,  on  such  a  day,  had  entered  a  certain  burying-ground, 
and  taken  from  a  coffin  buried  in  the  earth  a  dead  body  for  the  purpose 
of  dissection. 

In  Michaelmas  Term,  1789,  it  was  moved  in  the  Court  of  King's 
Bench  in  arrest  of  the  judgment,  that  this  was  an  offence  of  ecclesiastical 
cognizance,  and  not  indictable  in  any  court  of  criminal  jurisdiction  at 
the  common  law.  But  by  the  Court,  the  office  is  cognizable  in  a 
criminal  court,  as  highl}'  indecent,  and  contra  bonos  mores;  and  the 
circumstance  of  its  being  for  the  purposes  of  dissection  does  not  make 
it  a  less  indictable  offence. 

The  defendant,  on  the  probability  of  his  having  committed  this  crime 
merely  from  ignorance,  was  only  fined  five  marks.  •^ 


1  See  State  v.  Jasper,  4  Dev.  (N.  C.)  323. 

2  See  Reg.  v.  Jacobson,  14  Cox,  C.  C.  522.  —  Ed. 


SECT.  III.]  KANA van's   CASE.  107 

7o 

KANAVAN'S   CASE. 
Supreme  Judicial  Court  of  Maine.     1821. 

[Reported  1  Greenleaf,  226. J 

The  second  count  stated  that  the  defendant  unlawfully  and  indeeentU' 
took  the  body  of  [a]  child  and  threw  it  into  the  river,  against  common 
decenc}',  &c.^ 

The  defendant  being  convicted  on  the  second  count,  a  motion  was 
made  in  arrest  of  judgment,  on  the  grouhd  that  the  offence  charged  was 
not  indictable  at  common  law. 

By  the  Court.  We  have  no  doubt  upon  this  subject,  and  do  not 
hesitate  a  moment  to  pronounce  the  indictment  to  be  good  and  suffi- 
cient, and  that  there  must  be  sentence  against  the  prisoner. 

From  our  childhood  we  all  have  been  accustomed  to  paj'  a  reveren- 
tial respect  to  the  sepulchres  of  our  fathers,  and  to  attach  a  character 
of  saCredness  to  the  grounds  dedicated  and  enclosed  as  the  cemeteries 
of  the  dead.  Hence,  before  the  late  statute  of  Massachusetts  was  en- 
acted, it  was  an  offence  at  common  law  to  dig  up  the  bodies  of  those 
who  had  been  buried  for  the  purpose  of  dissection.  It  is  an  outrage 
upon  the  public  feeUngs,  and  torturing  to  the  afflicted  relatives  of  the 
deceased.  If  it  be  a  crime  thus  to  disturb  the  ashes  of  the  dead,  it 
must  also  be  a  crime  to  deprive  them  of  a  decent  burial,  by  a  disgraceful 
exposure,  or  disposal  of  the  body  contrary  to  usages  so  long  sanctioned, 
and  which  are  so  grateful  to  the  wounded  hearts  of  friends  and  mourn- 
ers. If  a  dead  body  may  be  thrown  into  a  river,  it  may  be  cast  into  a 
street ;  if  the  body  of  a  child,  so  the  bod}'  of  an  adult,  male  or  female. 
Good  morals,  decency,  our  best  feelings,  the  law  of  the  land,  —  all  for- 
bid such  proceedings.  It  is  imprudent  to  weaken  the  influence  of  that 
sentiment  which  gives  solemnity  and  interest  to  everything  connected 
with  the  tomb. 

Our  funeral  rites  and  services  are  adapted  to  make  deep  impressions 
and  to  produce  the  best  effects.  The  disposition  to  perform  with  all 
possible  solemnity  the  funeral  obsequies  of  the  departed  is  universal  in 
our  country  ;  and  even  on  the  ocean,  where  the  usual  method  of  sepulture 
is  out  of  the  question,  the  occasion  is  marked  with  all  the  respect  which 
circumstances  will  admit.  Our  legislature,  also,  has  made  it  an  offence 
in  a  civil  officer  to  arrest  a  dead  body  by  any  process  in  his  hands 
against  the  part}'  while  living ;  it  is  an  affront  to  a  virtuous  and  decent 
public,  not  to  be  endured. 

It  is  to  be  hoped  that  punishment  in  this  instance  will  serve  to 
correct  any  mistaken  ideas  which  ma}'  have  been  entertained  as  to 
the  nature  of  such  an  offence  as  this  of  which  the  prisoner  stands 
convicted. 


<^ 


Wdt^t 


^ 


108 


/ 


ON  WEALTH   V.    SHARPLESS. 


[chap.  II. 


y     €OMMON^YEALTH  v.    SHARPLESS. 


Supreme  Court  of  Pennsylvania.     1815. 
[Reported  2  Sergeant  Sf  Rawle,  91.] 

TiLGHMAN,  C.  J.^  This  is  an  indictment  against  Jesse  Sharpless 
and  others  for  exhibiting  an  indecent  picture  to  divers  persons  for 
money.  The  defendants  consented  that  a  verdict  should  go  against 
them,  and  afterwards  moved  in  arrest  of  judgment  for  several  reasons. 

1.  "That  the  matter  laid  in  the  indictment  is  not  an  indictable 
offence."  It  was  denied,  in  the  first  place,  that  even  a  public  exhibi- 
tion of  an  indecent  picture  was  indictable  ;  but  supposing  it  to  be  so, 
it  was  insisted  that  this  indictment  contained  no  charge  of  a  public 
exhibition.  In  England  there  are  some  acts  of  immorality,  such  as 
adultery,  of  which  the  ecclesiastical  courts  have  taken  cognizance  from 
very  ancient  times,  and  in  such  cases,  although  they  tended  to  the  cor- 
ruption of  the  public  morals,  the  temporal  courts  have  not  assumed 
jurisdiction.  This  occasioned  some  uncertainty  in  the  law  ;  some  dif- 
ficulty in  discriminating  between  the  offences  punishable  in  the  tem- 
poral and  ecclesiastical  courts.  Although  there  was  no  ground  for 
this  distinction  in  a  country  like  ours,  where  there  was  no  ecclesiastical 
jurisdiction,  yet  the  common  law  principle  was  supposed  to  be  in 
force,  and  to  get  rid  of  it  punishments  were  inflicted  by  act  of  assem- 
bly. There  is  no  act  punishing  the  offence  charged  against  the 
defendants,  and  therefore  the  case  must  be  decided  upon  the  prin- 
ciples of  the  common  law.  That  actions  of  public  indecency  were 
always  indictable,  as  tending  to  corrupt  the  public  morals,  I  can  have 
no  doubt;  because,  even  in  the  profligate  reign  of  Charles  II.,  Sir 
Charles  Sedley  was  punished  by  imprisonment  and  a  heavy  fine  for 
standing  naked  in  a  balcony  in  a  public  part  of  the  city  of  Loudon. 
It  is  true  tliat,  besides  this  shameful  exhibition,  it  is  mentioned  in 
some  of  the  reports  of  that  case  that  he  threw  down  bottles  containing 
offensive  liquor  among  the  people  ;  but  we  have  the  highest  authority 
for  saying  that  the  most  criminal  part  of  his  conduct,  and  that  which 
principally  drew  upon  him  the  vengeance  of  tlie  law,  was  the  exposure 
of  his  person.  For  this  I  refer  to  the  opinion  of  the  judges  in  The 
Queen  v.  Curl,  2  Str.  792  ;  Lord  Mansfield,  in  The  King  v.  Sir  Francis 
Blake  Delaval,  &c.,  3  Burr.  1438,  and  of  Blackstone,  in  the  4th  vol- 
ume of  his  Commentaries,  page  64.    Neither  is  there  any  doubt  that  tha 

1  Part  of  this  opinion  only  is  given.     Yeates,  J.,  delivered  a  concurring  opinion. 


^^i 


SECT.  III.] 


COMMONWEALTH   V.    SIIAEPLESS. 


109 


publication  of  an  indecent  book  is  indictable,  although  it  was  once 
doubted  b}^  the  Court  of  King's  Bench,  in  The  Queen  v.  Reed  (in  the 
sixth  year  of  Queen  Anne).  But  the  authority  of  that  case  was 
destroyed,  upon  great  consideration,  in  The  King  v.  Curl  (1  George 
II.),  2  8tr.  788.  The  law  was  in  Curl's  case  established  upon  true 
principles.  What  tended  to  corrupt  society  was  held  to  be  a  breach 
of  the  peace  and  punishable  by  indictment.  The  courts  are  guardians 
of  the  public  morals,  and  therefore  have  jurisdiction  in  such  cases. 
Hence  it  follows  that  an  oft'ence  may  be  punishable  if  in  its  nature 
and  by  its  example  it  tends  to  the  corruption  of  morals,  although  it  be 
not  committed  in  public.  In  The  King  v.  Delaval,  «S:c.,  there  was  a 
conspiracy,  and  for  that  reason  alone  the  court  had  jurisdiction  ;  yet 
Lord  Mansfield  expressed  his  opinion  that  they  would  have  had  juris- 
diction from  the  nature  of  the  offence,  which  was  the  seduction  of  a 
young  woman  under  the  age  of  twenty-one,  and  placing  her  in  the 
situation  of  a  kept  mistress,  under  the  pretence  of  binding  her  as  an 
apprentice  to  her  keeper  ;  and  he  cited  the  opinion  of  Lord  Hardwicke, 
who  ordered  an  information  to  be  filed  against  a  man  who  had  made  a 
formal  assignment  of  his  wife  to  another  person.  In  support  of  this 
we  find  an  indictment  in  Trem.  PI.  213  (The  King  v.  Dingley),  for 
seducing  a  married  woman  to  elope  from  her  husband.  Now,  to  apply 
these  principles  to  the  present  case.  The  defendants  are  charged 
with  exhibiting  and  showing  to  sundry  persons,  for  money,  a  lewd, 
scandalous,  and  obscene  painting.  A  picture  tends  to  excite  lust  as 
strongly  as  a  writing ;  and  the  showing  of  a  picture  is  as  much  a  pub- 
lication as  the  selling  of  a  book.  Curl  was  convicted  of  selling  a 
book.  It  is  true,  the  indictment  charged  the  act  to  have  been  in  a  pub- 
lic shop,  but  that  can  make  no  difference.  The  mischief  was  no 
greater  than  if  he  had  taken  the  purchaser  into  a  private  room  and 
sold  him  the  book  there.  The  law  is  not  to  be  evaded  by  an  artifice  of 
that  kind.  If  the  privacy  of  the  room  was  a  protection,  all  the  youth 
of  the  city  might  be  corrupted  by  taking  them  one  by  one  into  a 
chamber,  and  there  inflaming  their  passions  by  the  exhibition  of  las- 
civious pictures.  In  the  eye  of  the  law  this  would  be  a  publication, 
and  a  most  pernicious  one.  Then,  although  it  is  not  said  in  the 
indictment  in  express  terms  that  the  defendants  published  the  paint- 
ing, yet  the  averment  is  substantially  the  same,  that  is  to  say,  that 
they  exhibited  it  to  sundry  persons  for  money;  for.  that  in  law  is  a 
publication. 

Motion  in  arrest  of  judgment  overruled,  and  judgment  o?i 
the  verdict.^ 

1  See  Keg.  v.  Grey,  4  F.  &  F.  73 ;  Reg.  v.  Saunders,  1  Q.  B.  D.  15 ;  Pike  v.  Com., 
2  Duv.  (Ky.)  89.  —  Ed. 


>ct, 


k 


//i^^af//     ^^^ 


REX   V.   DE LAVAL. 

7^ 


[chap.  II. 


I 


REX  V.  DELAVAL. 
King's  Bench.  1763. 
[Reported  3  Burrow,  1434.] 

Lord  Mansfield  now  delivered  the  opinion  of  tlie  court.^ 

This  is  a  motion  for  an  information  against  the  defendants  for  a 
conspirac}'  to  put  this  3'onng  girl  (an  apprentice  to  one  of  them)  into 
the  hands  of  a  gentleman  of  rank  and  fortune,  for  the  purpose  of 
prostitution  ;  contraiy  to  decency  and  moralit}-,  and  without  the  knowl- 
edge or  approbation  of  her  father,  who  prosecutes  them  for  it,  and  has 
now  cleared  himself  of  all  imputation,  and  appears  to  be  an  innocent 
and  an  injured  man. 

A  female  infant,  then  about  fifteen,  was  bound  apprentice  b}'  her 
father  to  the  defendant  Bates,  a  music-master ;  the  girl  appearing  to 
have  natural  talents  for  music.  The  father  became  bound  to  the 
master  in  the  penalt\'  of  £200  for  his  daughter's  performance  of  the 
covenants  contained  in  the  indenture.  She  became  eminent  for  vocal 
music  ;  and  thereby  gained  a  great  profit  to  Bates,  her  master.  During 
her  apprenticeship,  being  then  about  seventeen,  she  is  debauched  by 
Sir  Francis  Delaval,  whilst  she  resided  in  the  house  of  Bates'  father ; 
as  Bates  himself  was  a  single  man  and  no  housekeeper.  In  April  last, 
Bates,  her  master,  indirectly  assigns  her  to  Sir  Francis,  as  much  as  it 
was  in  his  power  to  assign  her  over ;  and  this  is  done,  plainly-  and 
manifestl}',  for  bad  purposes.  Bates  at  the  same  time  releases  the 
penalty  to  the  father,  but  witliout  the  father's  application  or  even 
privity,  and  receives  the  £200  from  Sir  Francis,  b}-  the  hands  of  his 
tailor,  who  is  emploj'ed  to  pay  it  to  Bates,  and  also  enters  into  a  bond 
to  Bates  to  secure  to  him  the  profits  arising  from  the  girl's  singing  this 
summer  at  Marybone.  And  then  she  is  indentured  to  Sir  Francis 
Delaval  to  learn  music  of  him  ;  and  she  covenants  with  him,  both  in 
the  usual  covenants  of  indentures  of  apprenticeship,  and  likewise  in 
several  others  (as  "  not  to  quit  even  his  apartments "),  etc.  These 
articles  between  the  parties  are  signed  by  all  but  the  father,  and  a 
bond  is  drawn  from  him,  in  the  penalt}'  of  £200  for  his  daughter's  per- 
formance of  these  covenants  (which  he  never  executed).  And  the  girl 
goes  and  lives  and  still  does  live  with  Sir  Francis,  notoriously,  as  a 
kept  mistress. 

Thus  she  has  been  played  over,  by  Bates,  into  his  hands,  for  this 
purpose.  No  man  can  avoid  seeing  all  this ;  let  him  wink  ever  so 
much. 

I  remember  a  cause  in  the  court  of  chancer}',  wherein  it  appeared 
that  a  man  had  formerl}-  assigned  his  wife  over  to  another  man,  and 
Lord  Hardwicke  directed  a  prosecution  for  that  transaction,  as  being 


Part  of  the  opinion  only  is  given. 


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JO^ 


SECT.  III.]  •  REGINA    V.    BRAXWORTH.  Ill 

notoriously  and  grossly  against  public  decency  and  good  manners. 
And  so  is  tlie  present  case. 

It  is  true  that  man}'  offences  of  tlie  incontinent  kind  fall  properl}' 
under  the  jurisdiction  of  the  ecclesiastical  court,  and  are  appropri- 
ated to  it.  But  if  you  except  tliose  appropriated  cases,  this  court  is 
tlie  custos  morion  of  the  people,  and  has  tlie  superintendency  of 
offences  contra  bonos  mores  ;  and  upon  this  ground  both  Sir  Charles 
Sedley  and  Curl,  who  had  been  guilty  of  offences  against  good  manners, 
were  prosecuted  here. 

However,  besides  this,  there  is,  in  the  present  case,  a  conspiracy 
and  confederac}'  amongst  the  defendants,  which  are  clearly  and  indis- 
putabl}'  within  the  proper  jurisdiction  of  this  court. 

And  in  the  conspiracy  they  were  all  three  concerned. 

Therefore  let  the  rule  be  absolute  against  all  three. ^ 


REGINA   V.  BRANWORTH. 

King's  Bench.     1704. 

[Reported  6  Mod.  240.] 

Indictment  by  a  jury  of  the  town  of  Portsmouth,  "  for  that  he, 
being  an  idle  person,  did  wander  in  the  said  town  selling  of  small 
wares  as  a  petit  chapman." 

To  maintain  this  indictment  it  was  urged  that  a  petit  chapman  is  a 
vagabond  by  the  statute  of  39  Eliz.  c.  4.  ;  and  though  some  petit 
chapmen,  that  is,  such  as  are  legally  qualified  by  the  statute  of  8  &  9 
Will.  3,  25,  may  now  lawfully  use  that  occupation,  3'et  that  act  excepts 
boroughs  and  corporations,  so  that  as  to  them  they  remain  in  statu  quo. 

Holt,  Chief  Justice.  Is  a  vagabond  g-tmie^tis  such,  indictable?  It 
seems  not ;  for  at  common  law  a  man  might  go  where  he  would  ;  but  if 
he  be  an  idle  and  loose  person,  you  may  take  him  up  as  a  vagrant,  and 
bind  him  to  his  good  behaviour  by  the  common  law  ;  and  by  the  Statute 
of  Labourers  he  may  be  compelled  to  serve.  There  is  indeed  a  way  by 
law  of  punishing  incorrigible  rogues,  by  burning  them  in  the  shoulder, 
and  sending  them  to  the  gallies ;  from  whence  it  may  be  urged,  that 
there  must  be  a  way  before  of  convicting  them  of  being  rogues,  because 
they  cannot  otherwise  be  punished  as  incorrigible  rogues;  and  there- 
fore that  conviction  must  first  be  by  indictment. 

But  by  Holt,  Chief  Justice,  No  ;  but  by  being  judged  by  a  justice  of 
peace  to  be  a  vagrant,  and  used  by  him  as  such  ;  and  if  he  offend  again, 
he  ma}'  be  indicted  as  a  common  vagrant. 

Rule  for  quashin^t  was  enlarged. 

1  See  Reg.  v.  Webb,  1  Den.  C.  C  338';  Reg.  v.  Elliot,  L.  &  C.  103.  —Ed. 


112  BAKER  V.    STATE.  [CHAP.  II. 

BAKER   V.  STATE. 

Supreme  Court  of  New  Jersey.     1890. 

[Reported  53  JV\  /.  Law,  45.] 

DixoN,  J.^  The  plaintiff  in  error  was  convicted  in  the  Camden 
Quarter  Sessions  of  being  a  common  scold. 

One  ground  on  which  she  seeks  a  reversal  of  the  judgment  is  because 
the  indictment  does  not  state  the  particular  facts  which  make  a  com- 
mon scold.  But  it  is  not  necessary  that  the  indictment  should  be  so 
explicit.  It  is  enough  for  it  to  aver  that  the  accused  is  a  common 
scold,  to  the  common  nuisance,  etc.  Where  the  offence  consists,  not 
of  a  single  act,  but  of  a  habitual  course  of  conduct,  an  indictment  need 
not  charge  the  details  of  that  conduct,  which  are  only  evidence  of  the 
misdemeanor,  but  must  charge  the  general  practice  which  constitutes 
the  crime  itself.  Hawk.,  bk.  2,  ch.  2.'),  §§  57,  59;  Commonwealth  v. 
Pray,  13  Pick.  359,  362 ;  Whart.  Cr.  PI.  &  Pr.,  §  155. 

Another  reason  urged  for  reversal  is,  that  the  court  charged  the  jury 
as  follows  :  "  The  evidence  on  the  part  of  the  state  consists  of  a  number 
of  witnesses  who  have  sworn,  not  that  she  only  scolded  one  person  at 
one  time,  but  that  she  did  it  to  several  persons  on  several  occasions. 
Now,  if  you  believe  she  did  that  thing,  if  you  believe  the  evidence  on 
the  part  of  the  state,  she  is  guilty  of  being  a  common  nuisance  to  the 
neighborhood  in  which  she  resides." 

This  charge  did  not  correctly  point  out  to  the  jury  the  facts  required 
to  warrant  a  conviction,  nor  submit  to  their  judgment,  as  it  should,  the 
question  whether  such  facts  were  proved.  A  woman  does  not  neces- 
sarily become  a  common  scold  by  scolding  several  persons  on  several 
occasions.  It  is  the  habit  of  scolding,  resulting  in  a  public  nuisance, 
which  is  criminal ;  and  whether  the  scoldings  to  which  the  State's  wit- 
nesses testified  were  so  frequent  as  to  prove  the  existence  of  the  habit, 
and  whether  the  habit  was  indulged  under  such  circumstances  as  to 
disturb  the  public  peace,  were  questions  which  the  jury  alone  could 
lawfully  decide,  and  which  were  no  less  important  than  the  credibility 
of  witnesses.     Brown  v.  State,  20  Vroom  61. -^ 

1  Part  of  the  opinion  is  omitted.  —  Ed. 

2  Ace.  Foxbv'e  Case,  6  Mod.  11  ;  Com.  v.  Mohn,  52  Pa.  243.  See  State  v.  Davis, 
139  N.  C.  547. 


SECT.  III.]  KING   V.   PEOPLE.  113 

COMMON^YEALTH   v.  SMITH. 
Supreme  Judicial  Court  of  Massachusetts.     1850. 

[Reported  6  Cush.  80.] 

The  defendants  were  tried  before  Mellen,  J.,  in  the  court  of  common 
pleas,  and  convicted,  on  a  complaint  originally  made  to  a  justice  of  the 
peace,  in  which  it  was  alleged  that  the  defendants,  on  the  17th  of  April, 
1850,  at  Grafton,  "  with  force  and  arms,  were  disturbers  and  breakers 
of  the  peace,  and  then  and  there  contriving  and  intending  to  disturb  the 
peace  of  said  commonwealth,  did,  in  one  of  the  public  streets  and  other 
public  places  of  said  town,  utter  loud  exclamations  and  outcries,  and 
other  loud  noises,  and  did  then  and  thereby  draw  together  a  number  of 
persons,  to  the  great  disturbance  of  divers  citizens,  in  evil  example 
to  all  others  in  like  cases  to  offend  against  good  morals,  against  the 
peace  of  said  commonwealth,  and  contrary  to  the  form  of  the  statutes 
in  such  case  made  and  provided." 

The  defendants  moved  in  arrest  of  judgment,  on  the  ground  that  no 
offence  was  set  forth  and  alleged  in  the  complaint.  The  motion  was 
overruled,  and  the  defendants  excepted. 

Dewey,  J.  The  judgment  in  this  case  must  be  arrested.  No  offence 
is  technically  charged  in  this  complaint.  The  "  disturbance  of  divers 
citizens  "  by  noises  in  the  public  streets  is  not  a  proper  setting  out  of 
the  offence  here  intended  to  be  charged.  If  the  acts  done  by  the  par- 
ties constitute  an\-  criminal  offence,  it  is  that  of  a  nuisance.  As  such 
it  ought  to  have  been  alleged  that  the  noises  made  by  the  defendants 
were  to  the  great  damage  and  common  nuisance  of  all  the  citizens  of 
the  commonwealth  there  inhabiting,  being,  and  residing,  &c. 

Judgment  arrested} 


76. 

KING  V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1881. 

[Reported  83  N.  Y.  587.] 

Andrews,  J.  The  indictment  charges  the  plaintiff'  in  error  with 
keeping  a  disorderly  and  common  bawdy  and  gambling  house,  con- 
cluding ad  commune  7\ociimentum.  The  evidence  abundantly  sus- 
tained the  charge,  and  justified  the  jury  in  finding  that  the  defendant 
kept  a  house  to  which  gamblers  and  prostitutes  resorted  for  the  pur- 
pose of  gambling  and  prostitution. 

1  SeeState  v.  Appling,  25  Mo.  315  ;  State  v.  Powell,  70  N.  C.  67  ;  Com.  »>.  Linn  (Pa.) 
27  Atl.  843 ;  Com.  v.  Spratt,  14  Phila.  (Pa.)  365 ;  Bell  v.  State,  1  Swan  (Tenn.)  42. 


114  KING   V.   PEOPLE.  [CHAP.  II. 

The  court,  in  the  course  of  the  charge,  stated  to  the  jur}-  that  it  was 
not  necessary,  to  constitute  tlie  offence  of  keeping  a  disorderly  house, 
that  the  public  should  be  disturbed  by  noise,  and  refused  to  charge 
that,  in  order  to  convict  the  defendant  of  keeping  a  disorderly  house, 
the  jury  must  find  that  the  house  was  so  kept  as  to  disturb,  annoy,  and 
disquiet  the  neighbors  and  the  people  passing  and  repassing  the  house. 
An  exception  was  taken  to  the  charge  in  this  respect  and  to  the  refusal 
to  chaige  as  requested. 

The  exception  was  not  well  taken.  The  keeping  of  a  common 
bawdy  or  gambling  house  constitutes  the  house  so  kept  a  disorderly 
house  and  an  indictable  nuisance  at  common  law.  Rex  v.  Dixon,  10 
Mod.  335  ;  1  Hawk.  P.  C.  693.  It  is  a  public  offence,  for  the  reason 
that  its  direct  tendency  is  to  debauch  and  corrupt  the  public  morals,  to 
encourage  idle  and  dissolute  habits  and  to  disturb  the  public  peace.  It 
is  not  an  essential  element  that  it  should  be  so  kept  that  the  neiglibor- 
hood  is  disturbed  by  the  noise,  or  that  the  immoral  practices  should  be 
open  to  public  observation.  The  law,  it  is  true,  gives  a  remedy  l)y 
indictment  against  those  who  unduly  disturb  the  quiet  of  a  community 
by  noises  which  tend  to  impair  the  enjoyment  of  life,  but  it  does  not 
refuse  cognizance  of  those  for  greater  public  injuries,  which  arise  from 
practices  which  destroy  the  peace  of  famiUes  and  disturb  and  under- 
mine the  foundations  of  social  order  and  virtue. 

The  court  also  charged,  that  if  prostitutes  came  to  the  defendant's 
saloon  for  the  purpose  of  prostitution,  and  there  consummated  their 
intent,  to  the  knowledge  and  with  the  consent  of  the  defendant,  the 
jury  should  find  him  guilty.  The  defendant's  counsel  excepted,  and 
requested  the  court  to  charge  that,  in  order  to  find  the  defendant 
guilty  of  keeping  a  bawdy  house,  the  jury  must  find  that  he  kept  his 
house  for  the  resort  and  unlawful  commerce  of  lewd  people  of  both 
sexes.  The  court  said  :  "I  have  charged  the  jury  on  that  subject,  and 
decline  to  change  my  charge ;  I  have  substantially  so  charged  ;  "  and 
exception  was  taken  to  the  refusal  of  the  court  to  charge  as  requested. 
In  this  there  was  no  error.  If  the  defendant's  house  was  the  resort  of 
prostitutes  plying  their  vocation  there,  to  the  knowledge  of  the  defend- 
ant, the  house  was  a  bawdy  house  ;  and  this  was  what  in  substance  the 
court  charged,  and  the  court,  ni  stating  that  it  had  charged  substan- 
tially as  requested  by  the  defendant's  counsel,  gave  the  defendant  the 
benefit  of  the  definition  contained  in  his  request. 

The  defendant's  counsel  requested  the  court  to  charge  that  the  play- 
ing of  cards  in  the  defendant's  house  does  not,  of  itself,  make  it  a 
gambhng  house  ;  and  the  court,  in  reply,  said  :  "  Except  .that  it  is  the 
gambling  for  mone}'  that  makes  it  a  disorderl}'  house."  The  defend- 
ant's counsel  excepted.  The  request  was  directed  to  the  point  that 
the  mere  playing  of  cards  in  a  house  did  not  constitute  the  house  a 
gambling  house ;  and  the  remark  of  the  court,  in  response  to  the 
request,  amounted  to  an  assent  to  this  proposition. 

The  defendant's  counsel  .claims  that  the  remark  is  to  be  construed 


SECT.  III.]  REX   V.    SMITH.  115 

as  affirming  that  if  the  jiirj-  should  find  that  the  defendant  permitted 
gaming  in  his  house  on  a  single  occasion  he  could  l)e  convicted.  But 
the  remark  of  the  court  is  to  be  construed  in  connection  with  the  pre- 
vious cliarge  and  the  occasion  on  whicli  it  was  made.  The  court  hatl 
stated  to  the  jury  that  if  the  defendant  kept  a  gambling  house,  where 
gamblers  resorted  to  play  for  money  and  did  so  play,  to  the  knowlcdo-e 
of  the  defendant,  he  was  guilty.  The  counsel  requested  the  court  to 
charge  a  specific  proposition,  which  the  court  substantially  consented 
to,  and  added  the  element  to  which  the  defendant's  request  pointed,' 
viz. ,  that  the  playing  must  be  for  money  in  order  to  make  the  house  a  ' 
gambling  house.  If  the  defendant  desired  a  specific  instruction  upon 
the  point  now  made,  he  should  have  requested  it.  The  court  had 
properly  defined  the  offence  of  keeping  a  gambling  house,  and  the 
remark  of  the  court  clearly  referred  to  a  house  of  this  character. 

These  are  all  the  exceptions  relied  upon  by  counsel.     We  think  none 
of  them  are  well  taken,  and  that  the  conviction  should  be  affirmed. 

All  concur.  Judgment  affirmed} 


77. 

REX   y.    SMITH. 
King's  Bench.     1726. 

[Reported  I  Stramje,  704.] 

The  defendant  was  convicted  on  an  indictment  for  making  great 
noises  in  the  night  with  a  speaking  trumpet,  to  tiie  disturbance  of  the 
neighborhood ;  which  the  court  held  to  be  a  nuisance,  and  fined  the 
defendant  £5. 

1  See  De  Forest  v.  U.  S.,  11  App.  D.  C.  458 ;  Smith  ».  Com.,  6  B.  Mon.  (Ky.)  21 ; 
State  V.  Haines,  30  Me.  65  ;  People  v.  Jackson,  3  Den.  (N.  Y.)  101.  —  Ed. 


^ 


116  hall's  case.  [chap.  n. 

REX  V.   CROSS. 

Westminster  Sittings.     1826. 

[Reported  2  C.  ^  P.  483.] 

Indictment  for  a  nuisance  in  keeping  a  house  for  slaughtering  horses 
at  a  place  called  Bell  Isle,  in  the  parish  of  St.  Mary,  Islington.  There 
were  also  counts  framed  on  a  private  Act  of  Parliament,  59  Geo.  III. 
e.  39,  s.  88,  on  which  no  question  was  raised.     Plea,  not  guilt}'. 

It  was  proved  that  very  offensive  smells  proceeded  from  the  defend- 
ant's slaughtering  house  to  the  annoyance  of  those  who  lived  near  it, 
and  also  of  persons  who  passed  along  a  turnpike  road,  leading  from 
Battle  Bridge  to  Holloway. 

The  defendant  put  in  a  certificate  and  license  under  the  statute  26 
Geo.  III.  c.  71,  s.  1,  authorizing  him  to  keep  a  house  for  the  slaughter- 
ing of  horses. 

Abbott,  C.  J.  This  certificate  is  no  defence,  and  even  if  it  were  a 
license  from  all  the  magistrates  in  the  county  to  the  defendant  to 
slaughter  horses  in  this  very  place  it  would  not  entitle  the  defendant  to 
continue  the  business  there  one  hour  after  it  becomes  a  public  nuisance 
to  the  neighborhood.  If  a  certain  noxious  trade  is  already  established 
in  a  place  remote  from  habitations  and  public  roads,  and  persons  after- 
wards come  and  build  houses  within  the  reach  of  its  noxious  effects,  or 
if  a  public  road  be  made  so  near  to  it  that  the  carrying  on  of  the  trade 
becomes  a  nuisance  to  the  persons  using  the  road ;  in  those  cases  the 
party  would  be  entitled  to  continue  his  trade,  because  his  trade  tras 
legal  before  the  erection  of  the  houses  in  the  one  case  and  the  making 
of  the  road  in  the  other.  Verdict,  Guilty.'^ 


7  9 


HALL'S  CASE. 
King's  Bench.     1671. 

[Reported  1   Ventris,  169.] 

Complaint  was  made  to  the  Lord  Chief  Justice  by  divers  of  the 
inhabitants  about  Charing-Cross,  that  Jacob  Hall  was  erecting  of  a 
great  booth  in  the  street  there,  intending  to  show  his  feats  of  activity, 
and  dancing  upon  the  ropes  there,  to  their  great  annoyance  b}'  reason 
of  the  crowd  of  idle  and  naughty  people  that  would  be  drawn  thither, 
and  their  apprentices  inveigled  from  their  shops. 

Upon  this  the  Chief  Justice  appointed  him  to  be  sent  for  into  the 
court,  and  that  an  indictment  should  be  presented  to  the  grand  jur}'  of 

1  See  Com.  v.  Perrv,  139  Mass.  198. 


SECT.  III.]  ANONYMOUS.  117 

this  matter ;  and  withal  the  court  warned  him,  that  he  should  proceed 
no  further. 

But  he  being  dismissed,  they  were  present!}-  after  informed  that  he 
caused  his  workmen  to  go  on.  Whereupon  they  commanded  the  mar- 
shal to  fetch  him  into  court;  and  being  brought  in  and  demanded, 
how  he  durst  go  on  in  contempt  of  the  court,  he  with  great  impudence 
affirmed,  that  he  had  the  King's  warrant  for  it,  and  piomise  to  bear  him 
harmless. 

Then  they  required  of  him  a  recognizance  of  £300,  that  he  should 
cease  further  building ;  which  he  obstinately  refused  and  was  commit- 
ted. And  the  court  caused  a  record  to  be  made  of  this  nuisance,  as 
upon  their  own  view  (it  being  in  their  way  to  Westminster),  and  awarded 
a  writ  thereupon  to  the  Sheriff  of  Middlesex,  commanding  him  to  pros- 
trate the  building. 

And  the  court  said,  things  of  this  nature  ought  not  to  be  placed 
amongst  people's  habitations,  and  that  it  was  a  nuisance  to  the  King's 
royal  palace  ;  besides  that  it  straitened  the  way  and  was  insufferable  in 
that  respect.^ 


%0     - 
ANONYMOUS. 
Nisi  Pkius.     1699. 

[Reported  12  Modern,3i2.] 

One  was  indicted  for  a  nuisance  for  keeping  several  barrels  of  gun- 
powder in  a  house  in  Brentford  town,  sometimes  two  days,  sometimes  a 
week,  till  he  could  conveniently  send  them  to  London.     Wherein 

Holt,  C.  J.,  resolved,  1st.  That  to  support  this  indictment  there  must 
be  apparent  danger,  or  mischief  already  done.'^ 

2dly.  Though  it  had  been  done  for  fifty  or  sixty  years,  yet  if  it  be  a 
nnisance  time  will  not  make  it  lawful. 

3dly.  If,  at  the  time  of  setting  up  this  house  in  which  the  gunpowder 
is  kept  there  had  been  no  houses  near  enough  to  be  prejudiced  by  it, 
but  some  were  built  since,  it  would  be  at  peril  of  builder. 

4thl3'.  Though  gunpowder  be  a  necessary  thing,  and  for  defence  of 
the  kingdom,  yet  if  it  be  kept  in  such  a  place  as  it  is  dangerous  to  the 
mhabitants  or  passengers  it  will  be  a  nuisance. 

I  See  Rex  v.  Bradford,  Comb.  304. 

»  See  Peo.  v.  Sands,  1  Johns.  (N.  Y.)  78. 


yo 


I 


0 


V.  BURNET 


[chap.  ii. 


REX  w.  BURNETT. 
King's  Bench.     1815. 

fS    [Reported  4  HJaule  and  Selwijn,  272.] 

The  defendant,  an  apothecary,  was  indicted  b}'  that  addition  at  the 
Middlesex  Sessions  that  he,  on,  etc.,  in  the  fifty-fourth  year,  etc.,  and  on 
Uvers  other  days  between  that  day  and  the  29th  of  July,  with  force  and 
arms  at,  etc.,  unlawfully  and  injuriously  did  inoculate  one  A.  S.  an 
infant  of  seven  months,  one  W.  M.  an  infant  of  one  year,  and  divers 
other  infants  of  tender  years,  whose  names  are  unknown,  with  a  certain 
contagious  and  dangerous  disease  called  the  small  pox,  by  means  of 
which  the  said  A.  S.,  W.  M.,  and  the  said  other  infants  on  the  said  day 
and  on  the  other  daj-s,  etc.,  at,  etc.,  became  and  were  dangerously  ill 
of  the  said  contagious  disease ;  and  the  defendant,  well  knowing  the 
premises,  after  he  had  so  inoculated  them,  and  while  they  were  so 
dangerously  ill  of  the  said  contagious  disease  on,  etc.,  at,  etc.,  did 
unlawfully  and  injuriowsly  cause  the  said  A.  S.,  W.  M.,  and  the  said 
other  infants,  to  be  carried  into  and  along  a  certain  public  street  and 
highwa}',  called,  etc.,  in  and  along  which  divers  subjects  were  then 
passing,  and  near  to  divers  dwelling-houses,  etc.,  to  the  great  danger 
of  infecting  with  the  said  contagious  disease  all  the  subjects  who  were 
on  those  days  and  times  in  and  near  the  said  street  and  highway, 
dwelling-houses,  etc.,  who  had  not  had  the  disease,  and  ad  commune 
nocianentum^  etc. 

The  indictment  being  removed  into  this  court,  the  defendant  pleaded 
not  guilty,  and  was  found  guilty. 

And  now  it  was  moved  by  W.  Owen,  in  arrest  of  judgment,  that  this 
was  not  any  offence.  And  he  said  that  this  indictment  differed  materially 
from  that  in  Rex  v.  Vantandillo,  4  M.  &  S.  73  ;  for  by  this  indictment  it 
appears  that  the  defendant  is  by  profession  a  person  qualified  to  inoc- 
ulate with  this  disease,  provided  it  be  lawful  for  any  person  to  inoculate 
with  it.  Therefore  unless  the  court  determine  that  the  inoculating 
with  the  small  pox  has  now  become  of  itself  unlawful,  there  is  nothing 
in  this  indictment  to  show  it  unlawful ;  for  as  to  its  being  alleged  that 
he  caused  them  to  be  carried  along  the  street,  that  is  no  more  than 
this,  that  he  directed  the  patients  to  attend  him  foi»  advice  instead  of 
visiting  them,  or  that  he  prescribed  what  he  might  deem  essential  to 
their  recover}-,  air  and  exercise.  And  in  Rex  v.  Sutton,  which  was  an 
indictment  for  keeping  an  inoculating  house,  and  therefore  much  more 
likely  to  spread  infection  than  what  has  been  done  here,  the  court  said 
that  the  defendant  might  demur. 

Lord  Ellenborough,  C.  J.  The  indictment  lays  it  to  be  unlawfully 
and  injuriousl}-,  and  to  make  that  out,  it  must  be  shown  that  what  was 
done  was  in  the  manner  of  doing  it  incautious,  and  likely  to  affect  the 
health  of  others.     The   words  unlawfully  and  injuriously  preclude  all 


REGINA  V.  PARDENTON. 


119 


SECT.  III.] 

legal  cause  of  excuse.  And  though  inoculation  for  the  small  pox  mn}- 
be  practised  lawfully  and  innocently,  yet  it  must  be  under  such  guards 
as  not  to  endanger  the  pul)lic  health  by  communicating  this  infectious 
disease. 

Dampier,  J.  The  charge  amounts  to  this,  that  the  defendant,  after 
inoculating  the  children,  unlawfully  exposed  them,  while  infected  with 
the  disease,  in  the  public  street  to  the  danger  of  the  public  health. 

Le  Blanc,  J.  in  passing  sentence  observed  that  the  introduction 
of  vaccination  did  not  render  the  practise  of  inoculation  for  the  small 
pox  unlawful,  but  that  in  all  times  it  was  unlawful,  and  an  indictable 

■   '  --«--^;^iic!     rliar»vflpv«!      mid 


of. 


>\-rvv,Ci-< 


_C)JLCo<si-'oO._Sljui    Vt*_xvL>r: 


danger,  wuereoy  lue  me  anu  mxn^^  — ^ „         _ 

dangered.      Three   other  counts  varying  the   manner   of  stating   the 
charge. 

1  See  Reg.  v.  Henson,  Dears.  24 ;   Reg.  v.  Lister,  Dears.  &  B.  209  (but  see  People 
V.  Sands,  1  Johns.  78) ;  U.  S.  v.  Hart,  1  Pet.  C.  C.  390.  —  Ed. 


BUKNETiy 


[chap.  II. 


REX  V.  BURNETT, 
'yy^o^      King's  Bench.     1815. 

rj^    [Reported  4  Maide  and  Selwijn,  272.] 

'Mmf  '^'^'"^'^"*'  ^"  '-apothecary,  was  indicted  bj  that  addition  at  the 
jl.ddlesex  Sessions  that  he,  on,  etc.,  in  the  fift3-fourth  year,  etc  and  on 
fivers  other  days  between  that  day  and  the  29th  of  Jul-,  w  ith  W  anS 
arms  at,  etc.,  unlawfully  and  injuriously  did  ^...JL,:l.l^''^ 

I  oth 
con 
whi 
and 
of  f 
prei 
dan- 
unla 
othe 
high 
pass 
of  in 
on  t 
dwel 

710CU 

Tl] 
not  g 

Ay, 
was  n 
from 
appea 
ulate 
with 
with 
in  thif 
he  cai 
this,  t 
visitin 
their  i 
indicti 
likely 
that  the  defendant  might  demur'"^ 

clone  was  in     /e  ,  1  ^of  dd,t!  t,"  '      ";'"'  '"  '"o""  '"■■"  "''>'"  ™« 


Q 


4 

JS 


QxJi. 


^. 


^^cu  uuue  uere,  the  court  said 


SECT.  III.]  EEGINA  V.  PARDENTON.  119 

feo-al  cause  of  excuse.  And  though  inoculation  for  the  small  pox  may 
be  practised  lawfully  and  innocently,  yet  it  must  be  under  such  guards 
as  not  to  endanger  the  public  health  by  communicating  this  infectious 
disease. 

Dampier,  J.  The  charge  amounts  to  this,  that  the  defendant,  after 
inoculating  the  children,  unlawfully  exposed  them,  while  infected  with 
the  disease,  in  the  public  street  to  the  danger  of  the  public  health. 

Le  Blanc,  J.  in  passing  sentence  observed  that  the  introduction 
of  vaccination  did  not  render  the  practise  of  inoculation  for  the  small 
pox  unlawful,  but  that  in  all  times  it  was  unlawful,  and  an  indictable 
offence,  to  expose  persons  infected  with  contagious  disorders,  and 
therefore  liable  to  communicate  them  to  the  public,  in  a  public  place 
of  resort.^ 

The  defendant  was  sente7iced  to  six  months'  imprisonment. 


Lord  Ellenborough,  C.  J.,  in  Williams  v.  East  India  Co.,  3  East  192, 
200.  Tliat  the  declaration  in  imputing  to  the  defendants  the  having 
wrongfully  put  on  board  a  ship,  without  notice  to  those  concerned  in 
the  management  of  the  ship,  an  article  of  an  highly  dangerous  com- 
bustible nature,  imputes  to  the  defendants  a  criminal  negligence  cannot 
well  be  questioned.  In  order  to  make  the  putting  on  board  wrongful 
the  defendants  must  be  conusant  of  the  dangerous  quality  of  the  article 
put  on  board;  and  if  being  so,  they  yet  gave  no  notice  considering  the 
probable  danger  thereby  occasioned  to  the  lives  of  those  on  board,  it 
amounts  to  a  species  of  delinquency  in  the  persons  concerned  in  so 
putting  such  dangerous  article  on  board,  for  which  they  are  criminally 
liable,  and  punishable  as  for  a  misdemeanor  at  least. 


EEGINA   V.   PARDENTON. 
Central  Criminal  Court.     1853. 
[Reported  6  Cox  C.  C.  247.] 

Richard  Pardenton  and  Joseph  Woods  were  indicted  for  unlawfully 
and  negligently  driving  a  certain  railway  engine  in  an  incautious,  care- 
less, and  negligent  manner,  and  without  regarding  a  certain  signal  of 
danger,  whereby  the  life  and  limbs  of  divers  persons  were  greatly  en- 
dangered. Three  other  counts  varying  the  manner  of  stating  the 
charge. 

1  See  Reg.  v.  Henson,  Dears.  24  ;  Reg.  v.  Lister,  Dears.  &  B.  209  (but  see  People 
V.  Sands,  1  Johns.  78) ;  U.  S.  v.  Hart,  1  Pet.  C.  C.  390.  —  Ed. 


120 


KEX    V.    RODERICK. 


[chap.  II. 


The  indictment  was  founded  upon  the  13th,  14th,  and  15th  sections 
of  3  &  4  Vict.  c.  97.  A  difficulty  occurred  on  the  first  three  counts, 
founded  on  the  13th  section,  as  to  the  jurisdiction  of  this  Court;  it 
being  directed  that  upon  the  magistrate  declining  to  act  summarily,  the 
complaint  should  be  removed  to  the  Quarter  Sessions.^ 

Chambers  [for  the  prosecution]  admitted  that  there  was  no  act 
which  placed  the  Central  Criminal  Court  in  the  same  position  as  a  Court 
of  Quarter  Sessions.  But  still  the  question  would  arise  whether, 
although  the  offence  was  alleged  to  be  against  the  form  of  the  statute, 
the  indictment  did  not  disclose  an  offence  at  common  law,  where  it 
charged  acts  endangering  the  lives  of  Her  Majesty's  subjects. 

Cresswell,  J.  Do  you  mean  to  argue  that  if  a  man  were  to  gallop 
a  horse  furiously  through  the  public  streets  without  hurting  any  person, 
that  he  would  be  guilty  of  a  misdemeanor  because  he  might  be  convicted 
of  manslaughter  if  any  one  were  knocked  down  by  him  and  killed? 

Without  hearing  the  evidence,  I  think  this  case  is  now  ripe  for  de- 
cision. Whatever  construction  may  be  put  upon  the  13th  and  14th 
sections  of  the  act  referred  to  as  regards  the  first  three  counts,  I  have 
no  difficulty  in  saying  that  these  counts  do  not  disclose  any  offence  at 
common  law. 


SECTION   IV. 

Incomplete   Offences. 


^ 


I 


^ 


REX  V.  RODERICK. 

Stafford  Assizes.     1837. 

[Reported  7  C.  <^-  P.  795.] 

V  J  Misdemeanor.  The  first  count  of  the  indictment  charged  the  pris- 
oner with  unlawfully  knowing  a  child  under  the  age  of  twelve  years. 
Second  count,  for  attempting  so  to  do.  Third  count,  for  a  common 
assault. 

F.  V.  Lee,  for  the  prisoner,  objected  that  an  attempt  to  commit  a 
statutory  misdemeanor  was  not  a  misdemeanor. 

Godson,  for  the  prosecution,  cited  the  case  of  Rex  v.  Butler,  6  C.  &  P. 
368. 

Parke,  B.  If  this  offence  is  made  a  misdemeanor  by  statute,  it  is 
made  so  for  all  purposes.  There  are  many  cases  in  which  an  attempt 
to  commit  a  misdemeanor  has  been  held  to  be  a  misdemeanor  ;  and  an 
attempt  to  commit  a  misdemeanor  is  a  misdemeanor,  whether  the  offence 
is  created  by  statute  or  was  an  offence  at  common  law. 

Verdict,  guilty. 


1  This  short  statement  is  taken  from  the  report  in  38  Cent  iCrim.  Ct.  Rep.  691. 
Only  so  much  of  the  case  as  discusses  the  offence  at  common  law  is  given.  —  Ed. 


oJL  Jiz5kjLjLjc_Q    ajcv^..*.^JLsu«£i^  jLjL>-<J:Jiv  o.ji_jL_oji^  CovjjtxAxiiut^ 
*--<>-VJi>Jk  c.crtx>'0i^0k<xjuo^  Ova  >i3kji  JLouuOrt 


Q-Xirv>^vJ5Lfl   Vv.<yV  J>^  ^»^io^ciiJ^QL3;3L.cSl  -^^    CKJUL.  oCJt:.- 


^ 


120 

The  inc 

of  3  &  4  ^ 

founded  < 

being  dirt 

complaint 

Chamb 

wbich  pla 

of  Quart' 

although 

the   indie 

charged  j 

Cress"v 

a  horse  fi 

that  he  •« 

of  mansli 

Witho 

cision. 

sections 

no  diffici 

common 


\ 


o 


^-tDl-rX^iL  .x. 

ZK-JUULlX. 

V.JI>-    -A-A_X>      C 

-'1                           .o. 

x:^.^; 

V  ''v,jLJirx 

t^; 

PAJ 

.. 

'»-      V                                    .         -      i      <    \ 

s 


iThi 
Only  so 


ii-:-      :>V 


JX.> 


SECT.  IV.]  REGINA  V.   COLLINS.  121 

^V 

REGINA  V.  COLLINS. 
Crown  Case  Reserved.     1864. 

[Reported  9  Cox  C.  C.  497.] 

Case  reserved  for  the  opinion  of  this  court  by  the  Deputy-Assistant 
Judge  at  the  Middlesex  Sessions. 

The  prisoners  were  tried  before  me  at  the  Middlesex  Sessions  on  an 
indictment  which  stated  that  they  unlawfully  did  attempt  to  commit  a 
certain  felony  ;  that  is  to  say,  that  they  did  then  put  and  place  one  of 
the  hands  of  each  of  them  into  the  gown  pocket  o'f  a  certain  woman, 
whose  name  is  to  the  jurors  unknown,  with  intent  the  property  of  the 
said  woman,  in  the  said  gown  pocket  then  being,  from  the  person  of 
the  said  woman  to  steal,  &c. 

The  evidence  showed  clearly  that  one  of  the  prisoners  put  his  hand 
into  the  gown  pocket  of  a  lady,  and  that  the  others  were  all  concerned 
in  the  transaction. 

The  witness  who  proved  the  case  said  on  cross-examination  that  he 
asked  the  lady  if  she  had  lost  anything,  and  she  said  "  No." 

For  the  defence  it  was  contended  that  to  put  a  hand  into  an  empt}' 
pocket  was  not  an  attempt  to  commit  felony,  and  that  as  it  was  not 
proved  affirmatively  that  there  was  any  property  in  the  pocket  at  the 
time,  it  must  be  taken  that  there  was  not,  and  as  larceny  was  the  steal- 
ing of  some  chattel,  if  there  was  not  any  chattel  to  be  stolen,  putting 
the  hand  in  the  pocket  could  not  be  considered  as  a  step  towards  the 
completion  of  the  offence. 

I  declined  to  stop  the  case  upon  this  objection  ;  but  as  such  cases 
are  of  frequent  occurrence,  I  thought  it  right  that  the  point  should  be 
determined  b}'  the  authority  of  the  Court  of  Criminal  Appeal. 

The  jury  found  all  the  prisoners  guiltj-,  and  the  question  upon  which 
the  opinion  of  your  Lordships  is  respectfully  requested  is,  whether 
under  the  circumstances  the  verdict  is  sustainable  in  point  of  law  ? 

The  prisoners  are  in  custody  awaiting  sentence. 

Joseph  Payne,  Deputy-Assistant  Judge. 

Poland^  for  the  prisoners.  The  conviction  is  bad.  It  is  not  an 
indictable  offence  to  put  a  hand  into  an  empty  pocket  with  intent  to 
steal,  but  an  offence  punishable  onl}'  under  the  Vagrant  Act.  It  is  not 
alleged  in  the  indictment  that  there  was  any  property  in  the  pocket. 
This  is  very  like  the  case  of  Reg.  v.  M'Pherson  (1  Dears.  &  B.  197; 
7  Cox  Crim.  Cas.  281),  where  it  was  held  that  a  man  who  was  charged 
with  breaking  and  entering  a  dwelling-house  and  stealing  certain  spe- 
cified goods,  could  not  be  convicted  unless  the  specified  goods  were 
in  the  house,  notwithstanding  other  goods  were  there.  [Cockburn, 
C.  J.  That  case  proceeds  on  the  ground  that  you  must  prove  the 
property  as  laid.]  In  the  course  of  the  argument  Bramwell,  B.,  put 
this  very  case,  and  said  :  "The  argument  that  a  man  putting  his  hand 


122  REGINA   V.   COLLINS.  [CIIAP.  II. 

into  an  empty  pocket  might  be  convicted  of  attempting  to  steal, 
appeared  to  me  at  first  plausible  ;  but  supposing  a  man,  believing  a 
block  of  wood  to  be  a  man  who  was  his  deadly  enemy,  struck  it  a  blow 
intending  to  murder,  could  he  be  convicted  of  attempting  to  murder  the 
man  he  took  it  to  be?"  So  in  R.  v.  Scudder  (3  C.  &  P.  605)  it  was 
held  that  there  could  not  be  a  conviction  for  administering  a  drug  to  a 
woman  to  procure  abortion,  if  it  appeared  that  the  woman  was  not 
with  child  at  all.  That  case  was  before  the  Consolidation  Act  (24  & 
25  Vict.  c.  96).  [Bramwell,  B.  You  may  put  this  case :  Suppose  a 
man  takes  away  an  umbrella  from  a  stand  with  intent  to  steal  it,  believ- 
ing it  not  to  be  his  own,  but  it  turns  out  to  be  his  own,  could  he  be 
convicted  of  attempting  to  steal  ?]     It  is  submitted  that  he  could  not. 

Metcalfe,  for  the  prosecution.  The  fallacy  in  the  argument  on  the 
other  side  consists  in  assuming  that  it  is  necessary  to  prove  anything 
more  than  an  attempt  to  steal.  The  intent  to  steal,  it  is  conceded,  is 
not  sufficient ;  but  any  act  done  to  carry  out  the  intent,  as  putting  a 
hand  into  the  pocket,  will  do.  [Crompton,  J.  Suppose  a  man  were 
to  go  down  a  lane  armed  with  a  pistol,  with  the  intention  to  rob  a 
particular  person,  whom  he  expected  would  pass  that  way,  and  the  per- 
son does  not  happen  to  come,  would  that  be  an  attempt  to  rob  the 
person  ?] 

CocKBURN,  C.  J.  We  are  all  of  opinion  that  this  conviction  cannot 
be  sustained,  and  in  so  holding  it  is  necessary  to  observe  that  the  judg- 
ment proceeds  on  the  assumption  that  the  question,  whether  there  was 
anything  in  the  pocket  of  the  prosecutrix  which  might  have  been  the 
subject  of  larceny,  does  not  appear  to  have  been  left  to  the  jury.  The 
case  was  reserved  for  the  opinion  of  this  court  on  the  question,  whether, 
supposing  a  person  to  put  his  hand  into  the  pocket  of  another  for  the 
purpose  of  larceny,  there  being  at  the  time  nothing  in  the  pocket,  that 
is  an  attempt  to  commit  larcen}-  ?  We  are  far  from  saying  that  if  the 
question  whether  there  was  anything  in  the  pocket  of  the  prosecutrix 
had  been  left  to  the  jury,  there  was  not  evidence  on  which  they  might 
have  found  that  there  was,  in  which  case  the  conviction  would  have 
been  affirmed.  But,  assuming  that  there  was  nothing  in  the  pocket  of 
the  prosecutrix,  the  charge  of  attempting  to  commit  larceny  cannot  be 
sustained.  This  case  is  governed  by  that  of  Reg.  v.  MTherson  ;  and 
we  think  that  an  attempt  to  commit  a  felony  can  only  be  made  out 
when,  if  no  interruption  had  taken  place,  the  attempt  could  have  been 
carried  out  successfully,  and  the  felony  completed  of  the  attempt  to 
commit  which  the  party  is  charged.  In  this  case,  if  there  was  nothing 
in  the  pocket  of  the  prosecutrix,  in  our  opinion  the  attempt  to  commit 
larceny  cannot  be  established.  It  may  be  illustrated  by  the  case  of  a 
person  going  into  a  room,  the  door  of  which  he  finds  open,  for  the  pur- 
pose of  stealing  whatever  property  he  may  find  there,  and  finding 
nothing  in  the  room,  in  that  case  no  larceny  could  be  committed,  and 
therefore  no  attempt  to  commit  larceny  could  be  committed.  In  the 
absence,  therefore,  of  any  finding  by  the  jury  in  this  case,  either  di- 


^- 


^ 


<^-ou5*jk  V^. 


^' 


122 

into  an 

appeare 

block  o; 

intendii 

man  he 

held  th: 

woman 

with  ch 

25  Vict 

man  ta' 

ing  it 

convict 

Mete 

other  s 

more  tl 

not  sui 

hand  ii 

to  go  ' 

particii 

son  dc 

person 

Coci 

be  sus' 

raent  j 

anythi 

subjec 

case  w 

suppo! 

purpof 

is  an  i 

questi' 

had  b( 

have  : 

been  f 

the  pr 

snstai 

we  th 

when, 

Carrie 

comrr 

in  the 

larcer 

perso 

pose 

nothi 

there 

absei 


--y'^.-o  ^/X  yu^*^  i::^^  v>^  JLuL^jo^^i^-^-^^o^ 


'vAi^ 


•y-  JS..^- J~Tj>--cjt_JO  jLA->   'V^ -^  >3   J^*_slXjlj^J 


'i^^^'Vji^    >-<  *  J!X-r*ji^  v-vt>.A^.  vv^O\A^  j^5b 
*v-^'ifcxJc£/>r  j:>  f^bLA^^a^-iS^^c    J^3  XLa^  ^:$JLL 

\^.XAJ.J  cy^^f-O^Xf  JUoAJ-  JLJL^^--^  ^fs^JX^f^Xj-ci 


O- -  J^^J^:J>^K^.--^.J-^. 


„>0    ,A-». 


1a^   ^  .»J> 


AJ>*rV\,>yN 


_    O       J  y9   ^ 


SECT.  IV.]  COMMONWEALTH    V.   GREEN.  123 

rectly,  or  inferentiallj  b}-  their  verdict,  tliat  there  was  any  propert}'  in 
the  pocket  of  the  prosecutrix,  we  think  that  this  conviction  must  be 
quashed.^  Conviction  quashed: 


COMMONWEALTH  v.  GREEN. 
Supreme  Judicial  Court  of  Massachusetts.     1824. 

[Reported  2  Pickering,  380.] 

At  May  term,  1823,  in  the  county  of  Hampden,  the  prisoner,  an 
infant  under  the  age  of  fourteen  years,  was  convicted  of  an  assault  with 
intent  to  commit  a  rape. 

And  now,  upon  a  motion  in  arrest  of  judgment,  E.  II.  Mills  and 
G.  Bliss,  junior,  for  the  prisoner,  contended  that  it  was  clear  from 
all  the  authorities  that  an  infant  under  that  age  is  presumed  by 
law  to  be  unable  to  commit  a  rape  (1  Haile's  P.  C.  630  ;  4  Bl. 
Com.  212;  1  East's  P.  C.  446,  §  8);  and  in  3  Chit.  Cr.  L.  811,  it 
is  said  that  no  evidence  will  be  admitted  to  implicate  him  as  the 
actual  ravisher,  though  he  may  be  guilt}'  as  an  abettor.  It  would  be 
absurd  then  to  say  that  he  may  be  indicted  for  an  attempt  to  do  what 
the  law  presumes  him  incapable  of  doing.  Suppose  an  assault  by  a 
man  upon  another  man  dressed  in  woman's  apparel ;  an  indictment 
charging  him  with  an  assault  with  intent  to  commit  a  rape  could  not  be 
sustained.  So  a  female  could  not  be  indicted  for  an  assault  with  such 
an  intent.  An  indictment  for  throwing  oil  of  vitriol  with  intent  to 
burn  a  person's  clothes  might  be  good  ;  but  not  so  of  an  indictment  for 
throwing  water  with  such  an  intent.  If  a  woman  were  indicted  for 
petty  treason,  and  it  should  appear  that  she  had  not  been  married,  she 
could  not  be  convicted.  A  man  cannot  be  convicted  of  a  rape  on  his 
own  wife,  nor  of  attempting  to  commit  one,  because  the  matrimonial 
consent  cannot  be  retracted.  In  like  manner  the  prisoner  cannot  be 
convicted  of  a  rape,  nor  of  an  attempt  to  commit  one,  because  the  law 
presumes  him  to  be  incapable.  To  constitute  an  offence  there  must  be 
an  intent  coupled  with  an  act,  and  likewise  a  legal  ability  to  do  the 
thing  attempted.  In  regard  to  the  physical  powers  of  the  prisoner  the 
court  cannot  go  into  the  inquiry  whether  here  is  a  particular  exception 

1  This  decision  was  overruled  by  Tieg.  v.  Rins,  17  Cox,  C.  C  491. 

"If  a  statute  simply  made  it  a  felony  to  attempt  to  kill  any  human  beingr,  or  to 
conspire  to  do  so,  an  attempt  by  means  of  witchcraft,  or  a  conspiracy  to  kill  by  means 
of  charms  and  incantations,  would  not  be  an  offense  within  such  a  statute.  The  pov- 
erty of  language  compels  one  to  say,  '  an  attempt  to  kill  by  way  of  witchcraft,'  but 
such  an  attempt  is  really  no  attempt  at  all  to  kill.  It  is  true  the  sin  or  wickedness 
may  be  as  great  as  an  attempt  or  conspiracy  by  competent  means ;  but  human  laws  are 
made,  not  to  punish  sin,  but  to  prevent  crime  and  mischief." — Pollock,  C.  B.,  in 
Atf  y-GeuT  v.  Sillem,  2  H.  &  C.  431,  525.—  Ed. 


^ 


^ 


124  COMMONWEALTH   V.  GREEN.  [CHAP.  II. 

contrary  to  the  general  rule  of  law.  "We  do  not  contend  that  the  pris- 
oner may  not  be  punished  for  the  assault,  but  only  that  he  is  not  indict- 
able for  an  assault  with  the  intent  alleged  in  this  indictment. 

Davis,  SoUcitor-General,  for  the  Commonwealth.  The  maxim  that 
an  infant  under  the  age  of  fourteen  years  is  presumed  unable  to  com- 
mit a  rape,  is  indeed  found  in  the  books.  It  originated  in  ancient 
times,  and  it  requires  to  be  subjected  to  the  examination  of  a  modern 
judicial  tribunal.  That  no  evidence  shall  be  admitted  to  impeach  this 
presumption  is  the  dictum  of  one  writer  only,  and  it  cannot  hold  uni- 
versally. In  some  cases  an  infant  under  fourteen  years  is  physically 
able,  and  there  was  evidence  of  it  in  the  present  case ;  it  would  be 
absurd  then  by  such  presumption  to  shut  out  the  fact  itself.  The 
maxim  is  founded  on  the  principle  that  there  must  be  both  penetration 
and  emission  ;  but  this  idea  is  now  exploded.  1  Hale's  P.  C.  628 ; 
3  Inst.  59,  60  :  1  East's  P.  C.  436,  §  3  ;  1  Russell  on  Crimes,  805.  In 
Pennsylvania  v.  Sullivan,  Addis.  143,  it  is  said  that  the  essence  of  the 
crime  is  the  violence  to  the  person  and  feelings  of  the  woman.  An 
injury  to  the  feelings  may  be  inflicted  by  a  person  under  fourteen  years 
as  much  as  by  one  over  that  age ;  and  where  there  is  a  guilty  inten- 
tion in  the  perpetrator  of  the  injury,  there  seems  to  be  no  good  rea- 
son for  exonerating  him  from  punishment  on  account  of  his  physical 
incapacity. 

Mills,  in  reply,  said  the  law  was  not  clear  as  to  what  facts  are 
necessary  to  constitute  the  crime  of  rape,  and  in  addition  to  the  author- 
ties  before  cited  to  this  point,  he  referred  to  12  Co.  37;  1  Hawk. 
P.  C.  c.  41,  §  3. 

By  the  Court  (Parker,  C.  J.,  dissenting).  The  court  are  of  opin- 
ion that  the  verdict  must  stand  and  judgment  be  rendered  on  it.  The 
law  which  regards  infants  under  fourteen  as  incapable  of  committing 
rape  was  established  in  favorem  vitce,  and  ought  not  to  be  applied  by 
analogy  to  an  inferior  offence,  the  commission  of  which  is  not  punished 
with  death.  A  minor  of  fourteen  years  of  age,  or  just  under,  is  capable 
of  that  kind  of  force  which  constitutes  an  essential  ingredient  in  the 
crime  of  rape,  and  he  may  make  an  assault  with  an  intent  to  commit  that 
crime,  although  by  an  artificial  rule  he  is  not  punishable  for  the  crime 
itself.  An  intention  to  do  an  act  does  not  necessarily  imply  an  ability 
to  do  it ;  as  a  man  who  is  emasculated  may  use  force  with  intent  to 
ravish,  although  possibly,  if  a  certain  effect  should  be  now,  as  it  was 
formerly,  held  essential  to  the  crime,  he  could  not  be  convicted  of  a 
rape.  Females  might  be  in  as  much  danger  from  precocious  boys  as 
from  men,  if  such  boys  are  to  escape  with  impunity  from  felonious 
assaults,  as  well  as  from  the  felony  itself.^  Motiofi  overruled. 

1  Contra,  State  v.  Sam,  Winston,  300  (attempt)  ;  Rex  v.  Eldershaw,  3  C.  &  P.  396  ; 
Reg.  V.  Philips,  8  C  &  P.  736 ;  State  v.  Handy,  4  Harr.  666  (assaults  with  intent). 


vj^>^^jLlvJ«oii-^  >3;^  ^^V:^kjJaJ   Y<>iLj.jcr  X5FI^^^^  unxjt^ 
x3o^VnyAr5^   >zVJ(    VA.'li.  Qx-x^^  ^^^^omXj^^^-^^ 


124 


contrary 
oner  ma 
able  for 
Davii 
an  infan 
mit  a  r 
times,  a 
judicial 
presumi 
versall}^ 
able,  an 
absurd 
maxim 
and  em 
3  Inst. 
Pennsy 
crime  i 
injury  t 
as  muc! 
tion  in 
son  foi 
incapa( 
Ifill 
necesss 
ties  be 
P.  C.  < 
Byt 
ion  the 
law  wl 
rape  w 
analog 
with  d 
of  thai 
crime 
crime, 
itself, 
to  do 
ravish 
forme 
rape, 
fi'om 
assaul 


x^xjl-xj:: 


.a 


a 


1  c 

Reg.  V 


KJ-U 


124 

contrary 
oner  ma 
able  for 
Davi 
an  infai 
mit  a  I 
times,  a 
judicial 
presum] 
versally 
able,  an 
absurd 
maxim 
and  ere 
3  Inst. 
Pennsy 
crime  i 
injury  t 
as  muc 
tion  in 
son  foi 
incapac 
Mill 
necess! 
ties  be 
P.  C.  < 
Byi 
ion  tbs 
law  wl 
rape  w 
analog 
with  d 
of  thai 
crime 
crime, 
itself, 
to  do 
ravish 
forme 
rape, 
from 
assaul 

Reg.  V. 


SECT.  IV.]  COMMONWEALTH   V.    MCDONALD.  125 

COMMONWEALTH  v.  McDONALD. 
Supreme  Judicial  Court  of  Massachusetts.     1850. 

^Reported  5  Cushing,  365.] 

The  defendant  was  indicted  in  the  municipal  court,  and  there  tried 
before  Mellen,  J.,  for  an  attempt  to  commit  a  larceny  from  the 
person. 

At  the  trial,  there  being  no  evidence,  on  the  part  of  the  prosecution, 
that  the  individual  from  whom  the  defendant  was  charged  with  an 
attempt  to  steal,  had  any  property  upon  his  person  at  the  time  of  the 
alleged  attempt,  the  defendant  asked  the  judge  to  rule  that  the  indict- 
ment could  not  be  sustained.^ 

But  the  presiding  judge  ruled  otherwise ;  and,  the  jury  thereupon 
returning  a  verdict  of  guilty,  the  defendant  excepted. 

T.  Willey,  for  the  defendant. 

Clifford,  Attorney-General,  for  the  Commonwealth. 

Fletcher,  J.  It  was  said,  in  argument  for  the  defendant,  that  he 
could  not  be  said  to  have  attempted  to  steal  the  property  of  the  un- 
known person,  if  there  was  no  property  to  be  stolen  ;  and  that  therefore 
the  indictment  should  have  set  out  the  propert}'  and  shown  the  exist- 
ence and  nature  of  it  by  the  proof.  But  it  will  appear  at  once,  by  a 
simple  reference  to  the  import  of  the  term  "  attempt,"  that  this  propo- 
sition cannot  be  maintained.  To  attempt  is  to  make  an  etfort  to  effect 
some  object,  to  make  a  trial  or  experiment,  to  endeavor,  to  use  exer- 
tion for  some  purpose.  A  man  may  make  an  attempt,  an  effort,  a  trial, 
to  steal,  b}'  breaking  open  a  trunk,  and  be  disappointed  in  not  finding 
the  object  of  pursuit,  and  so  not  steal  in  fact.  Still  he  remains  never- 
theless chargeable  with  the  attempt,  and  with  the  act  done  towards  the 
commission  of  the  theft.  So  a  man  may  make  an  attempt,  an  experi- 
ment, to  pick  a  pocket,  b}'  thrusting  his  hand  into  it,  and  not  succeed, 
because  there  happens  to  be  nothing  in  the  pocket.  Still  he  has  clearly 
made  the  attempt,  and  done  the  act  towards  the  commission  of  the 
offence.  So  in  the  present  case  it  is  not  probable  that  the  defendant 
had  in  view  any  particular  article,  or  had  any  knowledge  whether  or  not 
there  was  anything  in  the  pocket  of  the  unknown  person  ;  but  he 
attempted  to  pick  the  pocket  of  whatever  he  might  find  in  it,  if  haplj^ 
he  should  find  anything  ;  and  the  attempt,  with  the  act  done  of  thrust- 
ing his  hand  into  the  pocket,  made  the  offence  complete.  It  was  an 
experiment,  and  an  experiment  which,  in  the  language  of  the  statute, 
failed  ;  and  it  is  as  much  within  the  terms  and  meaning  of  the  statute, 
if  it  failed  by  reason  of  there  being  nothing  in  the  pocket,  as  if  it  had 
failed  from  any  other  cause.  The  following  cases  fully  support  the 
view  taken  in  this  case,  and  I  am  not  aware  of  any  opposing  authori- 

1  Ouly  so  much  of  the  case  as  relates  to  this  point  is  printed. 


126  PEOPLE    V.   LEE   KONG.  [CHAP.  IL 

ties  :  King  v.  Higgins,  2  East,  5  ;  People  v.  Bush,  4  Hill,  133  ;  Josslyn 
V.  Commonwealth,  6  Met.  236  ;   Rogers  v.  Commonwealth,  5  S.  &  R. 

463. 

This  decision  is  confined  to  the  particular  case  under  consideration, 
of  an  attempt  to  steal  from  the  person  ;  as  there  may  perhaps  be  cases 
of  attempts  to  steal  where  it  would  be  necessary  to  set  out  the  par- 
ticular property  attempted  to  be  stolen,  and  the  value.  It  not  being 
necessary,  in  the  present  case,  to  set  out  in  the  indictment  the  property 
attempted  to  be  stolen,  the  defendant's  exception  to  the  ruling  of  the 
judge,  that  there  need  be  no  evidence  of  any  property  in  the  pocket  of 
the  unknown  person,  cannot,  of  course,  be  sustained,  unless  such  evi- 
dence was  made  necessary  by  the  allegations  in  the  indictment. 

The  indictment  alleges  that  the  defendant  attempted  to  steal  from  the 
unknown  person  his  personal  property  then  in  his  pocket  and  in  his 
possession,  neither  the  name  nor  the  value  of  the  property  being  known 
to  the  jurors.  But  this  allegation  is  wholly  unnecessary  and  imma- 
terial, and  may  be  stricken  out ;  and  the  indictment  will  still  remain 
sufficient,  and  contain  all  the  allegations  necessary  to  make  out  the 
offence  against  the  defendant,  and  to  warrant  the  conviction. 

It  not  being  necessary  to  allege  that  there  was  anything  in  the 
pocket  of  the  unknown  person,  and  as  all  that  part  of  the  indictment 
may  be  stricken  out,  the  ruling  of  the  court,  that  there  need  be  no  evi- 
dence of  any  property  in  the  pocket  of  the  person,  was  correct,  and  is 
fully  supported  by  authority.     Roscoe,  Crim.  Ev.  100. 

Exceptions  overruled.^ 


%7 

PEOPLE  V.    LEE   KONG. 
Supreme  Court  of  California.     1892. 

[Reported  95  California,  666.] 

Garoutte,  J.  Appellant  was  convicted  of  the  crime  of  au  as- 
sault with  intent  to  commit  murder,  and  now  prosecutes  this  appeal, 
insisting  that  the  evidence  is  insufficient  to  support  the  verdict. 

The  facts  of  the  case  are  novel  in  the  extreme,  and  when  applied 
to  principles  of  criminal  law,  a  question  arises  for  determination  upon 
which  counsel  have  cited  no  precedent. 

A  policeman  secretly  bored  a  hole  in  the  roof  of  appellant's  build- 
ing, for  the  purpose  of  determining,  by  a  view  fi'om  that  point  of 
observation,  whether  or  not  he  was  conducting  therein  a  gambling  or 
lottery  game.  This  fact  came  to  the  knowledge  of  appellant,  and 
upon  a  certain  night,  believing  that  the  policeman  was  upon  the  roof 

1  Accord  State  v.  Wilson,  30  Conn.  505  ;  People  i;.  Jones,  46  Midi.  441 ;  People  v. 
Moran,  123  N.  Y.  254.  And  see  Harvick  v.  State,  49  Ark.  514;  Clark  v.  State,  86 
Tenn.  511. 


V<^-XAfi.  .  ^WjL/v_fi^  v^-o-co^    Q.Jl^s»_-0    '^l_vjJMy^^LJ^.S^>.^>-^    ^Vf-.<iJjuJ^ 


126 

ties  :  Ki 
v.  Comm 
463. 

Thisd 
of  an  att 
of  attem 
ticulav  \: 
necessar 
attempte 
judge,  tl 
the  unki 
dance  w. 
The  h 
unknowi 
possessii 
to  the  j 
terial,  a 
sufficien 
offence 

It  no 
pocket  c 
ma}'  be 
dence  ol 
fully  suj 


_>-0^       J  JLA  A.JD 


J^J^ 


JO    J^>- 


o\J2P 


Garc 
sault  M' 
insistin* 

The  ^ 
to  pi-inc 
which  c 

A  po 
ing,  for 
observa 
lottery 
npon  a 

1  Ace/ 
Moran,  1 
Tenn.  51 


^^O   *■  *  t .  vjuJU>-> 


jJLo^^d 


^>,^  \Xisi^  ^(TOuuxjLrvi    CL>cx.A3_  >c9<v.A-rvsi^  JLJti-vv^vi   cOC- 


tJL/ 


126 


ties  :  Kii 
V.  Comm 
463. 

This  d 
of  an  att 
of  attem 
ticular  \ 
necessar 
attempte 
judge,  tl 
tlie  unlii 
dence  w; 
The  ii 
unknowi 
possessi' 
to  the  j 
terial,  a 
suffieien 
offence 

It  no 
pocket  c 
may  be 
dence  o 
fully  su] 


V- 


::^ 


"Ou>~cx-^ 


(la 


Gar( 
sault  ■« 
insistin 

The 
to  prini 
which  ( 

A  po 
ing,  foi 
observE 
lottery 
upon  a 

1  Ace 
Moran,  . 
Tenn.  5: 


SECT.  IV.]  PEOi'LE   V.    LEE    KONG.  127 

at  the  contemplated  point  of  observation,  he  fired  his  pistol  at  the 
spot.  He  shot  in  no  fright,  and  his  aim  was  good,  for  the  bullet 
passed  through  the  roof  at  the  point  intended  ;  but  very  fortunately 
for  the  officer  of  the  law,  at  the  moment  of  attack  he  was  upon  the 
roof  at  a  different  spot,  viewing  the  scene  of  action,  and  thus  no 
substantial  results  followed  from  appellant's  fire. 

The  intent  to  kill  is  quite  apparent  from  the  evidence,*  and  the 
single  question  is  presented,  Do  the  facts  stated  constitute  an  assault? 
Our  criminal  code  defines  an  assault  to  be  "  an  unlawful  attempt, 
coupled  with  a  present  ability,  to  commit  a  violent  injury  upon  the 
person  of  another."  It  will  thus  be  seen  that  to  constitute  an  assault 
two  elements  are  necessary,  and  the  absence  of  either  is  fatal  to  the 
charge.  There  must  be  an  unlawful  attempt,  and  there  must  be  a 
present  ability,  to  inflict  the  injury.  In  this  case  it  is  plain  that  the 
appellant  made  an  attempt  to  kill  the  officer.  It  is  equally  plain  that 
this  attempt  was  an  unlawful  one.  For  the  intent  to  kill  was  present 
in  his  mind  at  the  time  he  fired  the  shot,  and  if  death  had  been  the 
result,  under  the  facts  as  disclosed,  there  was  no  legal  justification  to 
avail  him.  The  fact  that  the  officer  was  not  at  the  spot  where  the 
attacking  party  imagined  he  was,  and  where  the  bullet  pierced  the 
roof,  renders  it  no  less  an  attempt  to  kill.  It  is  a  well-settled  prin- 
ciple of  criminal  law  in  this  country,  that  where  the  criminal  result 
of  an  attempt  is  not  accomplished  simply  because  of  an  obstruction 
in  the  way  of  the  thing  to  be  operated  upon,  and  these  facts  are  un- 
known to  the  aggressor  at  the  time,  the  criminal  attempt  is  committed. 
Thus  an  attempt  to  pick  one's  pocket  or  to  steal  from  his  person, 
when  he  has  nothing  in  his  pocket  or  on  his  person,  completes  the 
offence  to  the  same  degree  as  if  he  had  money  or  other  personal  prop- 
erty which  could  be  the  subject  of  larceny.  State  v.  Wilson,  30 
Conn.  500  ;  Commonwealth  y.  McDonald,  5  Cush.  365  ;  People  v. 
Jones,  46  Mich.  441  ;  People  v.  Moran,  123  N.  Y.  254. 

Having  determined  that  appellant  was  guilty  of  an  unlawful  attempt 
to  kill,  was  such  attempt  coupled  with  the  present  ability  to  accom- 
plish the  deed?  In  the  case  of  People  v.  Yslas,  27  Cal.  633,  this 
court  said:  "The  common-law  definition  of  an  assault  is  substan- 
tially the  same  as  that  found  in  our  statute."  Conceding  such  to  be 
the  fact,  we  cannot  indorse  those  authorities,  principal!}'  English, 
which  hold  that  an  assault  may  be  committed  by  a  person  pointing 
in  a  threatening  manner  an  unloaded  gun  at  another ;  and  this,  too, 
regardless  of  the  fact  whether  the  party  holding  the  gun  thought  it 
was  loaded,  or  whether  the  part}'  at  whom  it  was  menacingly  pointed 
was  thereby  placed  in  great  fear.  Under  our  statute  it  cannot  be 
said  that  a  person  with  an  unloaded  gun  would  have  the  present 
ability  to  inflict  an  injury  upon  another  many  yards  distant,  however 
apparent  and  unlawful  his  attempt  to  do  so  might  be.  ,  It  was  held, 
in  the  case  of  State  v.  Swails,  8  Ind.  524,  that  there  was  no  assault 
to  commit  murder  where  A  fires  a  gun  at  B  at  a  distance  of  forty 


PEOPLE   V.   LEE   KONG. 


eet,  with  intent  to  murder  him,  if  the  gun 
powder  and  a  slight  cotton  wad,  although  A 
with  powder  and  ball 
although  in  Kunkle  v. 


[chap.  IL 


d 


is  in  fact  loaded  with 
believes  it  to  be  loaded 
The  later  Indiana  cases  support  this  rule, 
State,  32  Ind.  220,  the  court,  in  speaking  of 
the  Swails  case,  said :  "  But  if  the  case  is  to  be  understood  as  laying 
down  the  broad  proposition  that  to  constitute  an  assault  .  .  .  with 
intent  to  commit  felony,  the  intent  and  the  present  ability  to  execute 
must  necessarily  be  conjoined,  it  does  not  command  our  assent  or 
approval."  In  the  face  of  the  fact  that  the  statute  of  this  State  in 
terms  requires  that  in  order  to  constitute  an  assault  the  unlawful 
attempt  and  present  ability  must  be  conjoined,  Kunkle  v.  State,  32 
Ind.  220,  can  have  no  weight  here.  In  State  v.  Napper,  6  Nev.  115, 
the  court  reversed  the  judgment  upon  the  ground  that  the  people 
failed  to  prove  that  the  pistol  with  which  the  assault  was  alleged 
to  have  been  made  was  loaded,  and  that  consequently  there  was  no 
proof .  that  the  defendant  had  the  present  ability  to  inflict  the 
injury. 

It  is  not  the  purpose  of  the  court  to  draw  nice  distinctions  between 
an  attempt  to  commit  an  offence  and  an  assault  with  intent  to  commit 
the  offence,  for  such  distinctions  could  only  have  the  effect  to  favor 
the  escape  of  criminals  from  their  just  deservings.  And  in  view  of 
the  fact  that  all  assaults  to  commit  felonies  can  be  prosecuted  as 
attempts,  we  can  see  no  object  in  carrying  the  discussion  of  the  sub- 
ject to  any  greater  lengths. 

In  this  case  the  appellant  had  the  present  ability  to  inflict  the  in- 
jury.    He  knew  the  officer  was  upon  the  roof,  and  knowing  that  fact 
^    he  fired  through  the  roof  with  the  full  determination  of  killing  him. 
«^    The  fact  that  he  was  mistaken  in  judgment  as  to  the  exact  spot  where 
^1     his  intended  victim  was  located  is    immaterial.     That  the  shot  did 
"X)  not  fulfil  the  mission  intended  was  not  attributable  to  forbearance  or 
^  kindness  of  heart  upon  defendant's  part ;  neither  did  the  officer  es- 
/^    cape  by  reason  of  the  fact  of  his  being  so  far  distant  that  the  deadly 
' -^missile  could  do  him  no  harm.     He  was  sufficiently  near  to  be  killed 
from  a  bullet  from  the  pistol,  and  his  antagonist  fired  with  the  intent 
of  killing  him.     Appellant's  mistake  as  to  the  policeman's  exact  loca- 
tion upon  the  roof  affords  no  excuse  for  his  act,  and  causes  the  act 
to  be  no  less  an  assault.     These  acts  disclose  an  assault  to  murder  as 
fully  as  though  a  person  should  fire  into  a  house  with  the  intention 
of  killing  the  occupant,  who  fortunately  escaped  the  range  of   the 
bullet.     See  Cowley  v.  State,  10  Lea,  282.     The  fact  that  the  shots 
were  directed  indiscriminately  into  the  house  rather  than   that   the 
intended  murderer  calculated  that  the  occupant  was  located  at  a  par- 
^    ticular  spot,  and  then  trained  his  fire  to  that  point,  could  not  affect 
1*5     the  question.     The  assault  would  be  complete  and  entire  in  either 
_  case.     If  a  man  intending  murder,  being  in  darkness  and  guided  by 
sound  only,  should  fire,  and  the  bullet  should  pierce  the  spot  where 
the  party  was  supposed  to  be,  but  by  a  mistake  in  hearing  the  in- 


n 


SECT.  IV.] 


RESPUBLICA    V.    MALIN. 


129 


tended  victim  was  not  at  the  point  of  danger,  hut  some  distance 
therefrom,  and  yet  within  reach  of  the  pistol-ball,  the  crime  of  assault 
to  commit  murder  would  be  made  out ;  for  the  unlawful  attempt  and 
the  present  ability  are  found  coupled  together.  If  appellant's  aim 
had  not  been  good,  or  if  through  fright  or  accident  when  pointing 
the  weapon  or  pulling  the  trigger,  or  if  the  ball  had  been  deflected  in 
its  course  from  the  intended  point  of  attack,  and  by  reason  of  the 
occurrence  of  any  one  of  these  contingencies  the  party  had  been  shot 
and  killed,  a  murder  would  have  been  committed.  Such  being  the 
fact,  the  assault  is  established. 

The  fact  of  itself  that  the  policeman  was  two  feet  or  ten  feet  from 
the  spot  where  the  fire  was  directed,  or  that  he  was  at  the  right  hand 
or  at  the  left  hand  or  behind  the  defendant  at  the  time  the  shot  was 
fired,  is  immaterial  upon  this  question.  That  element  of  the  case 
does  not  go  to  the  question  of  present  ability,  but  pertains  to'  the 
unlawful  attempt. 

Let  the  judgment  and  order  be  aflirmed. 

Patterson,  J.,   concurred. 

Harrisox,  J.,  concurring.  I  concur  in  the  judgment,  upon  the 
ground  that  u^xju  the  evidence  before  them  the  jury  have  determined 
that  the  unlawful  attempt  of  the  defendant  was  coupled  with  a  present 
ability  —  that  is,  an  ability  by  tlie  means  then  employed  by  him  in 
furtherance  of  such  attempt  —  to  commit  murder  upon  the  policeman.^ 


RESPUBLICA  V.  MALIN. 
Oyer  and  Terminer,  Philadelphia.     1778. 

[Reported  1  Dallas,  33.] 

Indictment  for  high  treason."^  The  prisoner,  mistaking  a  corps  of 
American  troops  for  British,  went  over  to  them.  And  now  the  Attor- 
ney-General offered  evidence  of  words  spoken  by  the  defendant,  to 
prove  this  mistake,  and  his  real  intention  of  joining  and  adhering  to 
the  enemy. 

By  THE  Court.  No  evidence  of  words  relative  to  the  mistake  of 
the  American  troops  can  be  admitted  ;  for  any  adherence  to  them, 
though  contrary  to  the  design  of  the  party,  cannot  possibly  come 
within  the  idea  of  treason. 

1  Ace.  State  v.  Mitchell  (Mo.),  71  S.  W.  175.  In  that  case  Gantt,  J.,  said  :  "The 
intent  evidenced  hy  tlie  tiring  into  the  bedroom  with  a  deadly  weapon,  accompanied 
by  a  present  capacity  in  defendant  to  murder  Warren  if  he  were  in  the  room,  and  the 
failure  to  do  so  only  because  Warren  happily  retired  upstairs  instead  of  in  the  bed 
into  which  defendant  fired,  made  out  a  perfect  case  of  an  attempt." 

2  The  statement  of  the  case  is  abridged,  and  part  only  of  the  opinion  is  given. 

9 


130  PEOPLE    V.    JAFPE.  [chap.  II. 

PEOPLE  V.  JAFFE. 

Court  of  Appeals  of  Xew  York.     1906. 

[Reported  185  N.  Y.  497.] 

Wjllard  Bartlett,  J.  The  indictment  charged  that  the  defendant 
on  the  6th  day  of  October,  1902,  in  the  county  of  New  York,  feloni- 
ously received  twenty  yards  of  cloth  of  the  value  of  twenty-five  cents  a 
yard  belonging  to  the  copartnership  of  J.  W.  Goddard  &  Son,  know- 
ing that  the  said  property  had  been  feloniously  stolen,  taken  and  carried 
.away  from  the  owners.  It  was  found  nnder  section  550  of  the  Penal 
Code,  which  provides  that  a  person  who  buys  or  receives  any  stolen 
property,  knowing  the  same  to  have  been  stolen,  is  guilty  of  crimiuall}' 
receiving  such  property.  The  defendant  was  convicted  of  an  attempt 
to  commit  the  crime  charged  in  the  indictment.  The  proof  clearly 
showed,  and  the  district  attorney  conceded  upon  the  trial,  that  the 
goods  which  the  defendant  attempted  to  purchase  on  October  6th,  1902, 
had  lost  their  character  as  stolen  goods  at  the  time  when  they  were 
offered  to  the  defendant,  and  when  he  sought  to  buy  them.  In  fact 
the  property  had  been  restored  to  the  owners  and  was  wholly  within 
their  control,  and  was  offered  to  the  defendant  by  their  authority  and 
through  their  agenc}'.  The  question  presented  by  this  appeal,  there- 
fore, is  whether  upon  an  indictment  for  receiving  goods  knowing  them 
to  have  been  stolen  the  defendant  may  be  convicted  of  an  attempt  to 
commit  the  crime  where  it  appears  without  dispute  that  the  property 
which  he  sought  to  receive  was  not  in  fact  stolen  propert}'. 

The  conviction  was  sustained  by  the  Appellate  Division  chiefly  upon 
the  authority  of  the  numerous  cases  in  which  it  has  been  held  that  one 
ma}'  be  convicted  of  an  attempt  to  commit  a  crime  notwithstanding  the 
existence  of  facts  unknown  to  him  which  would  have  rendered  the  com- 
plete perpetration  of  the  crime  itself  impossible.  Notably  among 
these  arc  what  may  be  called  the  pickpocket  cases,  where  in  prosecu- 
tions for  attempts  to  commit  larceny  from  the  person  by  pocket  picking 
it  is  held  not  to  be  necessary  to  allege  or  prove  that  there  was  an}-- 
thing  in  the  pocket  which  could  be  the  subject  of  larceny.  (Common- 
wealth V.  McDonald,  5  Cush.  365;  Rogers  v.  Commonwealth,  5  S.  & 
R.  463;  State  v.  Wilson,  30  Conn.  500;  People  v.  Moran,  123  N.  Y. 
254.)  Much  reliance  was  also  placed  in  the  opinion  of  the  learned 
Appellate  Division  upon  the  case  of  People  v.  Gardner  (144  N.  Y.  119), 
wliere  a  conviction  of  an  attempt  to  commit  the  crime  of  extortion  was 
upheld,  although  the  woman  from  whom  the  defendant  sought  to  obtain 
money  by  a  threat  to  accuse  her  of  a  crime  was  not  induced  to  pa}-  the 
money  b}-  fear,  but  was  acting  at  the  time  as  a  decoy  for  the  police, 
and  hence  could  not  have  been  subjected  to  the  influence  of  fear. 

In  passing  upon  the  question  here  presented  for  our  determhiation, 
it  is  important  to  bear  in  mind  precisely  what  it  was  that  the  defend- 


SECT.  IV J  PEOPLE  V.    JAFFE.  131 

ant  attempted  to  do.  He  simply  made  an  effort  to  purchase  certain 
specific  pieces  of  cloth.  He  believed  the  cloth  to  be  stolen  property, 
but  it  was  not  such  in  fact.  The  purchase,  therefore,  if  it  had  been 
completely  effected,  could  not  constitute  the  crime  of  receiving  stolen 
property,  knowing  it  to  be  stolen,  since  there  could  be  no  such  thing  as 
knowledge  on  the  part  of  the  defendant  of  a  non-existent  fact,  although 
there  might  be  a  belief  on  his  part  that  the  fact  existed.  As  jNIr. 
Bishop  well  says,  it  is  a  mere  truism  that  there  can  be  no  receiving  of 
stolen  goods  which  have  not  been  stolen.  (2  Bishop's  New  Crim.  Law, 
§  1140.)  It  is  equally  difficult  to  perceive  how  there  can  be  an  attempt 
to  receive  stolen  goods,  knowing  them  to  have  been  stolen,  when  they 
have  not  been  stolen  in  fact. 

The  crucial  distinction  between  the  case  before  us  and  the  pickpocket 
cases,  and  others  involving  the  same  principle,  lies  not  in  the  possi- 
bility or  impossibility  of  the  commission  of  the  crime,  but  in  the  fact 
that  in  the  present  case  the  act,  which  it  was  doubtless  the  intent 
of  the  defendant  to  commit,  would  not  have  been  a  crime  if  it  had 
been  consummated.  If  he  had  actually  paid  for  the  goods  which  he 
desired  to  buy,  and  received  them  into  his  possession,  he  would  have 
committed  no  offence  under  section  550  of  the  Penal  Code,  because  the 
very  definition  in  that  section  of  the  offence  of  criminall}'  receiving  prop- 
erty maljtos  it  an  essential  element  of  the  crime  that  the  accused  shall 
have  known  the  property  to  have  been  stolen  or  wrongfull}'  appropriated 
in  such  manner  as  to  constitute  larcen}-.  This  knowledge  being  a  ma- 
terial ingredient  to  the  offence  it  is  manifest  that  it  cannot  exist  unless 
the  property  has  in  fact  been  stolen  or  larcenouslj-  appropriated.  No 
man  can  know  that  to  be  so  which  is  not  so  in  truth  and  in  fact.  He 
may  believe  it  to  be  so,  but  belief  is  not  enough  under  this  statute.  In 
the  present  case  it  appeared  not  only  by  the  proof  but  by  the  express 
concession  of  the  prosecuting  officer  that  the  goods  which  the  defendant 
intended  to  purchase  had  lost  their  character  as  stolen  goods  at  the 
time  of  the  proposed  transaction.  Hence,  no  matter  what  was  the 
motive  of  the  defendant,  and  no  matter  what  he  supposed,  he  could  do 
no  act  which  was  intrinsieall}-  adapted  to  the  then  present  successful 
perpetration  of  the  crime  denounced  by  this  section  of  the  Penal  Code, 
because  neither  he  nor  an}'  one  in  the  world  could  know  that  the 
property  was  stolen  propert}',  inasmuch  as  it  was  not  in  fact  stolen 
property. 

In  the  pickpocket  cases  the  Immediate  act  which  the  defendant  had 
in  contemplation  was  an  act  which  if  it  could  have  been  carried  out 
would  have  been  criminal,  whereas  in  the  present  case  the  immediate 
act  which  the  defendant  had  in  contemplation  (to  wit,  the  purchase  of 
the  goods  which  were  brought  to  his  place  for  sale)  could  not  have  been 
criminal  under  the  statute  even  if  the  purchase  had  been  completed, 
because  the  goods  had  not  in  fact  been  stolen,  but  were  at  the  time 
when  they  were  offered  to  him  in  the  custody  and  under  the  control 
of  the  true  owners. 


132  PEOPLE    V.    JAFFE.  [CHAP.  II. 

If  all  which  an  accused  person  intends  to  do  would,  if  done,  consti- 
tute no  crime  it  cannot  be  a  crime  to  attempt  to  do  with  the  same  pur- 
pose a  part  of  the  thing  intended.  (1  Bishop's  Crim.  Law  [7th  ed.], 
sec.  747.)  The  crime  of  which  the  defendant  was  convicted  necessa- 
rily consists  of  three  elements:  first,  the  act;  second,  the  intent;  and 
third,  the  knowledge  of  an  existing  condition.  There  was  proof 
tending  to  establish  two  of  these  elements,  the  first  and  second,  but 
none  to  establish  the  existence  of  the  third.  Tliis  was  knowledge  of 
the  stolen  character  of  the  property-  sought  to  be  acquired.  There 
could  be  no  such  knowledge.  The  defendant  could  not  know  that  the 
property  possessed  the  character  of  stolen  property  when  it  had  not  in 
fact  been  acquired  by  theft. 

The  language  used  by  Ruger,  C.  J.,  in  People  v.  Moran  (123  N.  Y. 
254),  quoted  with  approval  by  Earl,  J.,  in  People  v.  Gardner  (144 
N.  Y.  119),  to  the  effect  that  "  the  question  whether  an  attempt  to  com- 
mit a  crime  has  been  made  is  determinable  solely  by  the  condition  of 
the  actor's  mind  and  his  conduct  in  the  attempted  consummation  of 
his  design,"  although  accurate  in  those  cases  has  no  application  to  a 
case  like  this,  where,  if  the  accused  had  completed  the  act  which  he 
attempted  to  do,  he  would  not  be  guilty  of  a  criminal  offence.  A  partic- 
ular belief  cannot  make  that  a  crime  which  is  not  so  in  the  absence  of 
such  belief.  Take,  for  example,  the  case  of  a  young  man  who  attempts 
to  vote,  and  succeeds  in  casting  his  vote  under  the  belief  that  he  is  but 
twenty  years  of  age,  when  he  is  in  fact  over  twenty-one  and  a  qualified 
voter.  His  intent  to  commit  a  crime,  and  his  belief  that  he  was  com- 
mitting a  crime,  would  not  make  him  guilty  of  any  offence  under  these 
circumstances,  altliough  the  moral  turpitude  of  the  transaction  on  his 
part  would  be  just  as  great  as  it  would  if  he  were  in  fact  under  age.  So, 
also,  in  the  case  of  a  prosecution  under  the  statute  of  this  state,  which 
makes  it  rape  in  the  second  degree  for  a  man  to  perpetrate  an  act  of 
sexual  intercourse  with  a  female  not  his  wife  under  the  age  of  eighteen 
years.  There  could  be  no  conviction  if  it  was  established  upon  the 
trial  that  the  female  was  in  fact  over  the  age  of  eighteen  years,  although 
the  defendant  believed  her  to  be  younger  and  intended  to  commit  the 
crime.  No  matter  how  reprehensible  would  be  his  act  in  morals,  it  would 
not  be  the  act  forbidden  by  this  particular  statute.  "  If  what  a  man 
contemplates  doing  would  not  be  in  law  a  crime,  he  could  not  be  said 
in  point  of  law  to  intend  to  commit  the  crime.  If  he  thinks  his  act 
will  be  a  crime,  this  is  a  mere  mistake  of  his  understanding  where  the 
law  holds  it  not  to  be  such,  his  real  intent  being  to  do  a  particular 
thing.  If  the  thing  is  not  a  crime  he  does  not  intend  to  commit  one, 
whatever  he  may  erroneously  suppose."  (1  Bishop's  Crim.  Law  [7th 
ed.,]  sec.  742.) 

The  judgment  of  the  Appellate  Division  of  the  Court  of  General 
Sessions  must  be  reversed  and  the  defendant  discharged  upon  this  in- 
dictment, as  it  is  manifest  that  no  conviction  can  be  had  thereunder. 
This  discharge,  however,  in  no  wise  affects  the  right  to  prosecute  the 


132 

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SECT.  IV.]  UNITED    STATES   V.    STEPHENS,  133 

defendant  for  other  offences  of  a  like  character,  concerning  which 
there  is  some  proof  in  the  record,  but  which  were  not  charged  in  the 
present  indictment. 

Chase,  J.  (dissenting).  I  dissent.  Defendant  having  with  knowl- 
edge repeatedly  received  goods  stolen  from  a  dry  goods  firm  by  one  of 
its  employees,  suggested  to  the  employee  that  a  certain  specified 
kind  of  cloth  be  taken,  he  was  told  by  tlie  employee  that  that  particular 
kind  of  cloth  was  not  kept  on  his  floor,  and  he  then  said  that  he  would 
take  a  roll  of  a  certain  Italian  cloth.  The  employee  then  stole  a  roll 
of  the  Italian  cloth  and  carried  it  away,  but  left  it  in  another  store  where 
he  could  subsequently  get  it  for  delivery  to  the  defendant.  Before  it 
was  actually  delivered  to  the  defendant  the  employers  discovered  that 
the  employee  had  been  stealing  from  them,  and  they  accused  him  of 
the  thefts.  The  employee  then  confessed  his  guilt,  and  told  them  of 
the  piece  of  cloth  that  had  been  stolen  for  the  defendant,  but  had  not 
actually  been  delivered  to  him.  The  roll  of  cloth  so  stolen  was  then 
taken  by  another  employee  of  the  firm,  and  it  was  arranged  at  the  police 
headquarters  that  the  employee  who  had  taken  the  cloth  should  deliver 
it  to  the  defendant,  which  he  did,  and  the  defendant  paid  the  employee 
about  one-half  the  value  thereof.  The  defendant  was  then  arrested  and 
this  indictment  was  thereafter  found  against  him.  That  the  defendant 
intended  to  commit  a  crime  is  undisputed.  I  think  the  record  shows  an 
attempt  to  commit  the  crime  of  criminally  receiving  property  as  defined 
in  sections  550  and  34  of  the  Penal  Code,  within  the  decisions  of  this 
court  in  People  v.  Moran  (123  N.  Y.  254)  and  People  v.  Gardner  (144 
N.  Y.  119). 

CuLLEN,  C.  J.,  Gray,  Edward  T.  Bartlett,  Vann  and  Werner, 
JJ.,  concur  with  Willard  Bartlett,  J.;  Chase,  J.,  dissents  in 
memorandum. 

Judgment  of  couviction  reversed,  etc.^ 


UNITED  STATES  u.  STEPHENS. 
Circuit  Court  of  United  States,  District  of  Oregon.     1882. 

{Reported  8  Sawi/er,  116.] 

Deady,  J.2  On  March  30,  1882,  an  information  was  filed  by  the 
district  attorney,  accusing  the  defendant,  by  the  first  count,  of  the 
crime  of  introducing  spirituous  liquors  into  the  district  of  Alaska,  con- 
trary to  law  ;  and,  by  the  second  count,  of  the  crime  of  '•  attempting  " 

1  See  Marley  i;.  State,  5S  N.  J.  L.  207.  -  Ed. 

2  Part  of  the  opiniou  only  is  priuted.  —  Ed. 


i3 


to  so  introcluce  such  liquors  into  said  district.^  The  defendant  de- 
murs to  the  information  because  it  does  not  state  facts  sufficient  to 
constitute  a  crime. 

Upon  the  argument  of  tlie  demurrer  it  was  abandoned  as  to  the  first 
count,  and  insisted  upon  as  to  the  second.  This  count  alleges  that  on 
July  14,  1879,  the  defendant,  being  in  the  district  of  Alaska,  wrote  and 
transmitted  a  letter  to  a  certain  firm  in  San  Francisco,  California, 
wherein  and  whereby  he  requested  said  firm  to  ship  and  send  to  him  at 
Fort  Wrangel,  in  said  district,  one  hundred  gallons  of  whiskey  ;  the 
defendant  then  well  knowing  that  said  firm  were  then  wholesale  dealers 
in  spirituous  liquors,  and  owned  and  possessed  said  one  hundred  gallons 
of  whiskey  ;  "  and  he  thereby  contriving  and  intending  to  introduce  the 
said  one  hundred  gallons  of  whiskey  into  the  said  district  of  Alaska." 
There  are  a  class  of  acts  which  may  be  fairly  said  to  be  done  in  pur- 
suance of  or  in  combination  with  an  intent  to  commit  a  crime,  but  are 
not,  in  a  legal  sense,  a  part  of  it,  and  therefore  do  not  with  such  intent 
constitute  an  indictable  attempt ;  for  instance,  tlie  purchase  of  a  gun 
with  a  design  to  commit  murder,  or  the  purchase  of  poison  with  the 
same  intent.  These  are  considered  in  the  nature  of  preliminary  prepara- 
tions, —  conditions,  not  causes,  —  and  although  coexistent  with  a  guilty 
intent,  are  indifferent  in  their  character,  and  do  not  advance  the  con- 
duct of  the  party  beyond  the  sphere  of  mere  intent.  They  are,  it  is 
true,  the  necessary  conditions  without  which  the  shooting  or  poisoning 
could  not  take  place,  but  they  are  not,  in  the  eye  of  the  law,  the  cause 
of  either.  1  Whart.  C.  L.,  sees.  178,  181  ;  1  Bish.  C.  L.,  sec.  668  et 
seq.;  The  People  v.  Murray,  14  Cal.  160. 

Dr.  "Wharton  says  (supra,  sec.  181):  "To  make  the  act  an  indict- 
able attempt,  it  must  be  a  cause  as  distinguished  from  a  condition  ; 
and  it  must  go  so  far  that  it  would  result  in  the  crime  unless  frustrated 
by  extraneous  circumstances."  Bishop  says  (supra,  sec.  669) :  "It  is 
plain  that  if  a  man  who  has  a  wicked  purpose  in  his  heart  does  some- 
thing entirely  foreign  in  its  nature  from  that  purpose,  he  does  not  com- 
mit a  criminal  attempt  to  do  the  thing  proposed.  On  the  other  hand, 
if  he  does  what  is  exactly  adapted  to  accomplish  the  evil  meanc,  yet 
proceeds  not  far  enough  in  the  doing  for  the  cognizance  of  the  law,  he 
still  escapes  punishment.  Again,  if  he  does  a  thing  not  completely,  as 
the  result  discloses,  adapted  to  accomplish  the  wrong,  he  may  under 
some  circumstances  be  punishable,  while  under  other  circumstances  he 
may  escape.  And  the  difficulty  is  not  a  small  one,  to  lay  down  rules 
readily  applied,  which  shall  guide  the  practitioner  in  respect  to  the  cir- 
cumstances in  which  the  criminal  attempt  is  sufficient." 

In  The  People  v.  Murray,  supra,  the  defendant  was  indicted  for  an 
attempt  to  contract  an  incestuous  marriage,  and  was  found  guilty. 
From  the  evidence  it  appeared  that  he  intended  to  contract  such  mar- 
riage, that  he  eloped  with  his  niece  for  that  purpose,  and  requested  a 


f 


1  This  was  made  criminal  by  Act  of  March  3,  1873  (17  Stat,  at  L.  530).  —  Ed. 


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SECT.  IV.]  UNITED   STATES   V.   STEPHENS.  135 

third  person  to  get  a  magistrate  to  perform  the  ceremony.  Upon  an 
appeal  the  judgment  was  reversed.  Chief  Justice  Field,  delivering  the 
opinion  of  the  court,  said:  "  It  (the  evidence)  shows  very  clearly  the 
intention  of  the  defendant ;  but  sometliing  more  than  mere  intention  is 
necessary  to  constitute  the  otfence  charged.  Between  preparation  for 
the  attempt  and  the  attempt  itself,  there  is  a  wide  diflerence.  The 
preparation  consists  in  devising  or  arranging  the  means  or  measures 
necessary  for  the  commission  of  tlie  offence  ;  the  attempt  is  the  direct 
movement  towards  the  commission  after  the  preparations  are  made 
.  .  .  ;  but  until  the  officer  was  engaged,  and  the  parties  stood  before 
him,  ready  to  take  the  vows  appropriate  to  the  contract  of  marriage,  it 
cannot  be  said,  in  strictness,  that  the  attempt  was  made.  The  attempt 
contemplated  by  the  statute  must  be  manifested  by  acts  which  would 
end  in  tlie  consummation  of  the  particular  offence,  but  for  the  interven- 
tion of  circumstances  independent  of  the  will  of  the  party." 

In  the  case  under  consideration,  to  constitute  the  attempt  charged  in 
the  information  there  must  have  been  an  intent  to  commit  the  crime  of 
introducing  spirituous  liquors  into  Alaska,  combined  with  an  act  done 
in  pursuance  of  such  intention  that  apparently,  in  the  usual  course  of 
events,  would  have  resulted  in  such  introduction,  unless  interrupted  by 
extraneous  circumstances,  but  which  actually  fell  short  of  such  result. 

But  it  does  not  appear  that  anything  was  done  by  the  defendant 
towards  the  commission  of  the  intended  crime  of  introducing  spirituous 
liquors  into  Alaska,  but  to  offer  or  attempt  to  purchase  the  same  in 
San  Francisco.  The  written  order  sent  there  by  the  defendant  was,  in 
effect,  nothing  more  or  less  than  an  offer  by  him  to  purchase  the  one 
hundred  gallons  of  whiskey  ;  and  it  will  simplify  the  case,  to  regard 
him  as  being  present  at  the  house  of  the  San  Francisco  firm,  at  the 
time  his  order  reached  them,  seeking  to  purchase  the  liquor  with  the 
intent  of  committing  the  crime  of  introducing  the  same  into  Alaska. 

But  the  case  made  by  the  information  stops  here.  It  does  not  siiow 
that  he  bought  any  liquor.  Whether  he  changed  his  mind,  and  coun- 
termanded the  order  before  the  delivery  of  the  goods,  or  whether  the 
firm  refused  to  deal  with  him,  does  not  appear. 

Now,  an  offer  to  purchase  whiskey,  with  the  intent  to  ship  it  to 
Alaska,  is,  in  any  view  of  the  matter,  a  mere  act  of  preparation,  of 
which  the  law  takes  no  cognizance.  As  the  matter  then  stood,  it  was 
impossible  for  the  defendant  to  attempt  to  introduce  this  liquor  into 
Alaska,  because  he  did  not  own  or  control  it.  It  was  simply  an  attempt 
to  purchase,  —  an  act  harmless  and  indifferent  in  itself,  whatever  the 
purpose  with  which  it  was  done. 

But  suppose  the  defendant  had  gone  further,  and  actually  succeeded 
in  purchasing  the  liquor,  wherein  would  the  case  differ  from  that  of  the 
person  who  bought  the  gun  or  poison  with  intent  to  commit  murder, 
but  did  no  subsequent  act  in  execution  of  such  puri)Ose?  In  all  essen- 
tials they  are  the  same. 

A  purchase  of  spirituous  liquor  at  San  Francisco  or  Portland,  either 


136  GLOVEK   V.   COMMONWEALTH.  [CHAP.  II. 

in  person  or  by  written  order  or  application,  with  intent  to  commit  a 
crime  with  the  same,  —  as  to  dispose  of  it  at  retail  without  a  license,  or 
to  a  minor,  or  to  introduce  it  into  Alaska,  —  is  merely  a  preparatory 
act,  indifferent  in  its  character,  of  which  the  law,  lacking  the  omni- 
science of  Deity,  cannot  take  cognizance. 

At  what  period  of  the  transaction  the  shipper  of  liquor  to  Alaska  is 
guiltv  of  an  attempt  to  introduce  the  same  there,  is  not  very  easily 
determined.  Certainly  the  liquor  must  first  be  purchased  —  obtained 
in  some  way  —  and  started  for  its  illegal  destination.  But  it  is  doubt- 
ful whether  the  attempt,  or  the  act  necessary  to  constitute  it,  can  be 
committed  until  the  liquor  is  taken  so  near  to  some  point  or  place  of 
"  the  mainland,  islands,  or  waters"  of  Alaska  as  to  render  it  conven- 
ient to  introduce  it  from  there,  or  to  make  it  manifest  that  such  was  the 
present  purpose  of  the  parties  concerned.  But  this  is  a  mere  sug- 
gestion ;  and  each  case  must  be  determined  upon  its  own  circumstances. 

The  demurrer  is  sustained  to  the  second  count,  and  overruled  as  to 
the  first. 


9/ 

GLOVER  V.  COMMONWEALTH. 
Supreme  Court  of  Appeals  of  Virginia.     1889. 

[Reported  86  Virginia,  382.] 

Lewis,  P.,  delivered  the  opinion  of  the  court. 

Among  the  exceptions  taken  by  the  prisoner  at  the  trial  was  one  to 
the  refusal  of  the  court  to  instruct  the  jury  as  follows:  "If  the  jury 
believe  from  the  evidence  that  the  prisoner  at  the  bar  intended  to  com- 
mit a  rape  on  the  prosecutrix,  Berta  Wright,  but  before  the  act  was 
finally  executed,  he  voluntarih-  and  freely  abandoned  it,  they  are  to 
find  a  verdict  of  not  guilty."  ^ 

This  exception  is  not  well  taken.  To  have  given  the  instruction 
would  have  been  equivalent  to  telling  the  jur}'  that  upon  an  indictment 
for  rape,  the  accused  cannot  be  legall}-  convicted  of  an  attempt  to  com- 
mit a  rape,  which  is  not  the  law.  The  court,  therefore,  did  not  err  in 
refusing  to  give  it,  nor  did  it  err  in  subsequently  instructing  the  jur}', 
as  in  effect  it  did,  that  upon  an  indictment  for  rape,  the  accused  may 
be  found  guilty  of  an  attempt  to  commit  a  rape,  which  is  in  accordance 
with  the  law  in  this  State.  Givens  v.  Commonwealth,  29  Gratt.  830  ; 
Mings  V.  Same,  85  Va.  638.  Indeed,  the  statute,  now  brought  into 
section  4044  of  the  Code,  expresslv  enacts  that  "  on  an  indictment  for 
felony,  the  jury  may  find  the  accused  not  guilty  of  the  felony,  but  guilt}' 
of  an  attempt  to  commit  such  felony  ;  and  a  general  verdict  of  not 
guilty  upon  such  indictment  shall  be  a  bar  to  a  subsequent  prosecution 
for  an  attempt  to  commit  such  felony." 

1  Only  so  much  of  the  opinion  as  refers  to  this  exception  is  printed. 


SECT.  IV.] 


COMMONWEALTH   V.   KENNEDY. 


137 


An  attempt  in  criminal  law  is  an  apparent  unQnished  crime,  and 
hence  is  compounded  of  two  elements,  viz. :  (1)  The  intent  to  commit  a 
crime  ;  and  (2)  a  direct  act  done  towards  its  commission,  but  falling 
short  of  the  execution  of  the  nllimate  design.  It  need  not,  therefore, 
be  the  last  proximate  act  to  the  consummation  of  the  crime  in  contem- 
plation, but  is  sufficient  if  it  be  an  act  apparently  adapted  to  produce 
the  result  intended.  It  must  be  something  more  than  mere  prepara- 
tion.    Uhl's  Case,  6  Gratt.  706  ;  Hicks'  Case,  86  \'a.  22.^. 

Hence,  when  the  prisoner  took  the  prosecutrix  into  the  stable,  and 
there  did  the  acts  above  mentioned,  the  attempt  to  commit  a  rape  was 
complete  ;  for  there  was  the  unlawful  intent  accompanied  by  acts  done 
towards  the  commission  of  the  intended  crime,  but  falling  short  of  its 
commission.  Indeed,  it  is  not  denied  that  there  was  sucli  attempt,  but 
it  is  contended  —  and  such  was  the  main  defence  at  the  trial  —  that  the 
subsequent  voluntary  abandonment  of  the  criminal  purpose  cleansed 
the  prisoner  of  all  crime,  so  far  as  the  attempt  was  concerned.  But 
this  is  a  mistaken  view.  For,  on  the  contrary,  it  is  a  rule,  founded  in 
reason  and  supported  by  authority,  that  if  a  man  resolves  on  a  criminal 
enterprise,  and  proceeds  so  far  in  it  that  his  act  amounts  to  an  indict- 
able attempt,  it  does  not  cease  to  be  such,  though  he  voluntarily  aban- 
dons the  evil  purpose. 

In  Lewis  v.  The  State,  35  Ala.  3<S0,  which  was  an  indictment  for  an 
attempt  to  commit  a  rape,  it  was  ruled  by  the  Supreme  Court  of  Alabama 
that  if  the  attempt  was  in  fact  made,  and  had  progressed  far  enough  to 
put  the  prosecutrix  in  terror  and  render  it  necessary  for  her  to  save 
herself  from  the  consummation  of  the  attempted  outrage  b}-  flight,  then 
the  attempt  w^as  complete,  though  the  prisoner  had  not  in  fact  touched 
her ;  a-nd  that  an  after-abandonment  by  the  prisoner  of  his  wicked  pur- 
pose could  not  purge  the  crime.  And  there  are  many  other  authorities 
to  the  same  effect.  See  1  Bish.  Crim.  Law  (6th  ed.),  sec.  732,  and 
cases  cited. 


COMMONWEALTH   v.    KENNEDY. 
SupRKJiE  Judicial  Court  of  Massachusetts.     1897. 
•   [Reported  170  Mass  18.] 

Holmes,  J.^  The  first  count  is  for  mingling  poison  with  tea,  with 
intent  to  kill  one  Albert  F.  Learoyd.  Pub.  Sts.  c.  202,  §  32.  The 
second  count  is  for  an  attempt  to  commit  murder  by  poisoning.  Pub. 
Sts.  c.  202,  §  2L  Whether  the  first  count  includes  the  matter  of  the 
second,  with  tlie  effect  that,  even  if  the  motion  to  quash  the  second 
count  should  have  been  granted,  the  verdict  as  rendered  would  stand 
on  the  first  count  (Commonwealth  v.  Nichols,  134  Mass.  531,  536, 
537),  need  not  be  decided,  as  we  are  of  opinion  that  the  motion  to 
quash  properly  was  overruled. 

1  Only  so  much  of  the  opiniou  as  discusses  the  law  of  attempt  is  given. 


'//F//f 


138  COMMONWEALTH   V.   KENNEDY.  [CHAP.  II. 

The  second  count  alleges  in  substance  that  the  defendant  feloniousl}*, 
wilfully,  and  maliciousl}'  attempted  to  murder  Learoyd  by  placing  a 
quantity  of  deadlj'  poison  known  as  "rough  on  rats,"  known  to  the 
defendant  to  be  a  deadly  poison,  upon,  and  causing  it  to  adhere  to  the 
under  side  of  the  crossbar  of  a  cup  of  Learoyd's  known  as  a  mustache 
cup,  the  cup  being  then  empty,  with  the  intent  that  Learoyd  should 
thereafter  use  the  cup  for  drinking  while  the  poison  was  there,  and 
should  swallow  the  poison.  The  motion  to  quash  was  argued  largely 
on  the  strength  of  some  cases  as  to  what  constitutes  an  "  administer- 
ing" of  poison,  which  have  no  appHcation,  but  the  argument  also 
touched  another  question,  which  always  is  present  in  cases  of  attempts, 
and  which  requires  a  few  words,  namely,  how  nearly  the  overt  acts 
alleged  approached  to  the  achievement  of  the  substantive  crime 
attempted. 

Notwithstanding  Pub.  Sts.  c.  210,  §  8,  we  assume  that  an  act  may 
be  done  which  is  expected  and  intended  to  accomplish  a  crime,  which  is 
not  near  enough  to  the  result  to  constitute  an  attempt  to  commit  it,  as 
in  the  classic  instance  of  shooting  at  a  post  supposed  to  be  a  man.  As 
the  aim  of  the  law  is  not  to  punish  sins,  but  is  to  prevent  certain  exter- 
nal results,  the  act  done  must  come  prett}'  near  to  accomplishing  that 
result  before  the  law  will  notice  it.  But,  on  the  other  hand,  irrespective 
of  the  statute,  it  is  not  necessary'  that  the  act  should  be  such  as  inevit- 
ably to  accomplish  the  crime  b}'  the  operation  of  natural  forces,  but  for 
some  casual  and  unexpected  interference.  It  is  none  the  less  an 
attempt  to  shoot  a  man  that  the  pistol  which  is  fired  at  his  head  is  not 
aimed  straight,  and  therefore  in  the  course  of  nature  cannot  hit  him. 
Usually  acts  which  are  expected  to  bring  about  the  end  without  further 
interference  on  the  part  of  the  criminal  are  near  enough,  unless  the 
expectation  is  very  absurd.  In  this  case  the  acts  are  alleged  to  have 
been  done  with  intent  that  Learoyd  should  swallow  the  poison,  and,  by 
implication,  with  intent  to  kill  him.     See  Commonwealth  v.  Adams, 

1127  Mass.  15,  17.  Intent  imports  contemplation,  and  more  or  less 
expectation,  of  the  intended  end  as  the  result  of  the  act  alleged.  If  it 
appeared  in  the  count,  as  it  did  in  the  evidence,  that  the  habits   of 

\Learo3'd  and  the  other  circumstances  were  such  that  the  defendant's 
expectation  that  he  would  use  the  cup  and  swallow  the  poison  was  well 
grounded,  there  could  be  no  doubt  that  the  defendant's  acts  were  near 
enough  to  the  intended  swallowing  of  the  poison,  and,  if  the  dose  was 
large  enough  to  kill,  that  they  were  near  enough  to  the  accomplishment 

,  of  the  murder.  But  the  grounds  of  the  defendant's  expectation  are 
not  alleged,  and  the  strongest  argument  for  the  defence,  as  it  seems  to 
us,  would  be  that,  so  far  as  this  count  goes,  his  expectation  may  have 
been  unfounded  and  unreasonable.  But  in  view  of  the  nature  of  the 
crime  and  the  ordinary  course  of  events,  we  are  of  opinion  that  enough 
is  alleged  when  the  defendant's  intent  is  shown.  The  cup  belonged  to 
Learoyd,  and  the  defendant  expected  that  he  would  use  it.  To  allow 
him  immunity,  on  the  ground  that  this  part  of  his  expectation  was  ill 


I. 

VvSl   rvjcxj:^  Q.jcrvwvsi,  >-v-Soe)UX^  JJujo^<i-vj..jDH^  X^    vjcrv\— 

i- 

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'  '  Pub.   St.R 

a  defefi' 
an   air  procure   an    abortion    upon   a   wor 

r.  .nn „,_  ^.".  Taylor,  182  Mass.  261.     Commou  . 

ss.  519.     So  in  an  attempt  to  pick  a  pocket  r 
"^  .       '  ■  .  365.     F;        • 


.;  case  of  treason.  Fos; 

J 
.  C  616,  6A6]  iy.  0.  H  \^< .  -VH.     . 

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!ii>  -'.iu  counterfeit  bills  in  one's  posses.9ion  with  intent  to  ; 

v..       ■  '  '-■  '  ""  "   " 

,'  used  in  u 
.  .il.  c.  37,  §  6.  ....... 

'.tready  referred  !■  3  been  on 

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SECT.  IV.]  COMMONWEALTH   V.   KENNEDY.  139 

grounded,  would  be  as  unreasonable  as  to  let  a  culprit  off  because  he 
was  not  warranted  in  thinking  that  his  pistol  was  pointed  at  the  man 
he  tried  to  shoot.  A  more  important  point  is  that  it  is  not  alleged  in 
terras  that  the  dose  was  large  enough  to  kill,  unless  we  take  judicial 
notice  of  the  probable  effect  of  a  teaspoonf  ul  of  "  rough  on  rats  "  ;  and 
this  may  be  likened  to  the  case  of  firing  a  pistol  supposed  to  be  loaded 
with  ball,  but  in  fact  not  so,  or  to  administering  an  innocent  substance 
supposing  it  to  be  poison.  State  v.  S wails,  8  Ind.  524,  and  note. 
State  V.  Clarissa,  11  Ala.  57.  There  is  a  difference  between  the  case 
of  an  attempt  and  a  murder.  In  the  latter  case  the  event  shows  the 
dose  to  have  been  sufficient,  without  an  express  allegation.  But  we 
are  of  opinion  that  this  objection  cannot  be  maintained.  Every  ques- 
tion of  proximity  must  be  determined  by  its  own  circumstances,  and 
analogy  is  too  imperfect  to  give  much  help.  Any  unlawful  application 
of  poison  is  an  evil  which  threatens  death,  according  to  common  appre- 
hension, and  the  gravity  of  the  crime,  the  uncertainty  of  the  result, 
and  the  seriousness  of  the  apprehension,  coupled  with  the  great  harm 
likely  to  result  from  poison  even  if  not  enough  to  kill,  would  warrant 
holding  the  liability  for  an  attempt  to  begin  at  a  point  more  remote 
from  the  possibility  of  accomplishing  what  is  expected  than  might  be 
the  case  with  lighter  crimes.  But  analogy  does  not  require  this  con- 
sideration. The  case  cited  as  to  firing  a  pistol  not  loaded  with  ball  has 
been  qualified  at  least  by  a  later  decision,  Kunkle  v.  State  32  Ind. 
220,  229,  a  case  of  shooting  with  shot  too  small  to  kill.  And  even  in 
less  serious  crimes  (especially'  in  view  of  Pub.  Sts.  c.  210,  §  8),  im- 
possibility of  achievement  is  not  necessarily  a  defence,  for  instance,  in 
an  attempt  to  procure  an  abortion  upon  a  woman  not  pregnant. 
Commonwealth  v.  Taylor,  132  Mass.  261.  Commonwealth  v.  Tibbetts, 
157  Mass.  519.  So  in  an  attempt  to  pick  a  pocket  which  is  empty. 
Commonwealth  y.  McDonald,  5  Cush.  365.  See  also  Commonwealth 
V.  Jacobs,  9  Allen,  274.  In  the  case  of  crimes  exceptionally  dealt  with 
or  greatly  feared,  acts  have  been  punished  which  were  not  even  ex- 
pected to  effect  the  substantive  evil  unless  followed  by  other  criminal 
acts ;  e.  g.,  in  the  case  of  treason,  Foster,  196  ;  King  v.  Cowper,  5  Mod. 
206  ;  or  in  that  of  pursuit  by  a  negro,  with  intent  to  commit  rape. 
Lewis  V.  State,  35  Ala.  380.  Compare  Regina  v.  Eagleton,  Dears. 
C.  C.  515,  538;  S.  C.  6  Cox,  C.  C.  559,  571.  A  familiar  statutory 
illustration  of  this  class  is  to  be  found  in  the  enactments  with  regard  to 
having  counterfeit  bills  in  one's  possession  with  intent  to  pass  them. 
Pub.  Sts.  c.  204,  §  8  (see  Regina  v.  Roberts,  Dears.  C.  C.  539,  550, 
551),  and  one  which  is  interesting  historically  in  the  English  statutes 
intended  to  keep  secret  the  machinery  used  in  modern  manufacture. 
Sts.  14  Geo.  III.  c.  71,  §  5 ;  21  Geo.  ill.  c.  37,  §  6.  The  general  pro- 
vision of  Pub.  Sts.  c.  210,  §  8,  already  referred  to,  long  has  been  on 
the  books.  A  case  having  some  bearing  on  the  present  is  State  v. 
Glover,  27  S.  C.  602.  For  these  reasons,  we  are  of  opinion  that  the 
motion  to  quash  the  second  count  properly  was  overruled. 


140  COMMONWEALTH  V.   PEASLEE.  [CHAP.  U. 

COMMONWEALTH   v.   PEASLEE. 

Supreme  Judicial  Court  of  Massachusetts.     1901. 

[Reported  177  Mass.  267.] 

Holmes,  C.  J.  This  is  an  indictment  for  an  attempt  to  burn  a  building 
and  certain  goods  therein,  with  intent  to  injure  the  insurers  of  the  same. 
Pub.  Sts.  c.  210,  §  8.  The  substantive  offence  alleged  to  have  been 
attempted  is  punished  by  Pub.  Sts.  c.  203,  §  7.  The  defence  is  that 
the  overt  acts  alleged  and  proved  do  not  amount  to  an  offence.  It 
was  raised  b}'  a  motion  to  quash  and  also  by  a  request  to  the  judge  to 
direct  a  verdict  for  the  defendant.  We  will  consider  the  case  in  the 
first  place  upon  the  evidence,  apart  from  any  question  of  pleading,  and 
afterwards  will  take  it  up  in  connection  with  the  indictment  as  actually 
drawn. 

The  evidence  was  that  the  defendant  had  constructed  and  arranged 
combustibles  in  the  building  in  such  a  wa}'  that  they  were  ready  to  be 
lighted,  and  if  lighted  would  have  set  fire  to  tlie  building  and  its  con- 
tents. To  be  exact,  the  plan  would  have  required  a  candle  which  was 
standing  on  a  shelf  six  feet  away  to  be  placed  on  a  piece  of  wood  in  a 
pan  of  turpentine,  and  lighted.  The  defendant  offered  to  pay  a  3'oung 
man  in  his  employment  if  he  would  go  to  the  building,  seemingh*  some 
miles  from  the  place  of  the  dialogue,  and  carry  out  the  plan.  This  was 
refused.  Later  the  defendant  and  the  young  man  drove  toward  the 
building,  but  when  within  a  quarter  of  a  mile  the  defendant  sai(\  that 
he  had  changed  his  mind  and  drove  away.  This  is  as  near  as  he  ever 
came  to  accomplishing  what  he  had  in  contemplation. 

The  question  on  the  evidence,  more  precisely  stated,  is  whether  the 
defendant's  acts  come  near  enough  to  the  accomplishment  of  the  sub- 
stantive offence  to  be  punishable.  The  statute  does  not  punish  every 
act  done  toward  the  commission  of  a  crime,  but  only  such  acts  done  in 
an  attempt  to  commit  it.  The  most  common  types  of  an  attempt  are 
cither  an  act  which  is  intended  to  bring  about  the  substantive  crime 
and  which  sets  in  motion  natural  forces  that  would  bring  it  about  in 
the  expected  course  of  events  but  for  an  unforeseen  interruption,  as  in 
this  case  if  the  candle  had  been  set  in  its  place  and  lighted  but  had 
been  put  out  by  the  police,  or  an  act  which  is  intended  to  bring  about 
the  substantive  crime  and  would  bring  it  about  but  for  a  mistake  of 
judgment  in  a  matter  of  nice  estimate  or  experiment,  as  when  a  pistol 
is  fired  at  a  man  but  misses  him,  or  when  one  tries  to  pick  a  pocket 
which  turns  out  to  be  empty.  In  either  case  the  would-be  criminal  has 
done  his  last  act. 

Obviously  new  considerations  come  in  when  further  acts  on  the  part 
of  the  person  who  has  taken  the  first  steps  are  necessary  before  the 
substantive  crime  can  come  to  pass.  In  this  class  of  cases  there  is 
still  a  chance  that  the  would-be  criminal  may  change  his  mind.     In 


SECT.  IV.]  COMMONWEALTH    V.    PEASLEE.  141 

strictness,  such  first  steps  cannot  bd  described  as  an  attempt,  because 
that  word  suggests  an  act  seemingly  sufficient  to  accomplish  the  end, 
and  has  been  supposed  to  have  no  other  meaning.  People  v.  Murray, 
14  Cal.  159,  160.  That  an  overt  act,  although  coupled  with  an 
intent  to  commit  the  crime,  commonly  is  not  punishable  if  further  acts 
are  contemplated  as  needful,  is  expressed  in  the  familiar  rule  that 
preparation  is  not  an  attempt.  But  some  preparation  may  amount  to 
an  attempt.  It  is  a  question  of  degree.  If  the  preparation  comes  very 
near  to  the  accomplishment  of  the  act,  the  intent  to  complete  it  renders 
the  crime  so  probable  that  the  act  will  l)e  a  misdemeanor,  although 
there  is  still  a  locus  penitentioe  in  the  need  of  a  further  exertion  of  the 
will  to  complete  the  crime.  As  was  observed  in  a  recent  case,  the 
degree  of  proximity  held  sufficient  maj-  vary  with  circumstances,  includ- 
ing among  other  things  the  apprehension  which  the  particular  crime  is 
calculated  to  excite.  Commonwealth  ».  Kennedy,  170  Mass.  18,  22. 
(See  also  Commonwealth  v.  Willard,  22  Pick.  476.)  A  few  instances 
of  liabilit}'  of  this  sort  are  mentioned  on  the  page  cited. 

As  a  further  illustration,  when  the  servant  of  a  contractor  had  de- 
livered short  rations  of  meat  by  the  help  of  a  false  weight  which  he  had 
substituted  for  the  true  one,  intending  to  steal  the  meat  left  over,  it  was 
held  by  four  judges,  two  of  whom  were  Chief  Justice  Erie  and  Mr. 
Justice  Blackburn,  that  he  could  be  convicted  of  an  attempt  to  steal. 
Regina  v.  Cheeseman,  L.  &  C.  140;  S.  C.  10  W.  R.  225.  So  lighting 
a  match  with  intent  to  set  fire  to  a  haystack,  although  the  prisoner 
desisted  on  discovering  that  he  was  watched.  Regina  v.  Taylor,  1 
F.  &  F.  511.  So  getting  into  a  stall  with  a  poisoned  potato,  intending 
to  give  it  to  a  horse  there,  which  the  prisoner  was  prevented  from  doing 
by  his  arrest.  Commonwealth  v.  McLaughlin,  105  Mass.  460.  See 
Clark  V.  State,  86  Tenn.  511.  So  in  this  Commonwealth  it  was  held 
criminal  to  let  a  house  to  a  woman  of  ill  fame  with  intent  that  it  should 
be  used  for  purposes  of  prostitution,  although  it  wduld  seem  that  the 
finding  of  intent  meant  only  knowledge  of  the  inteilt  of  the  lessee. 
Commonwealth  r.  Harrington,  3  Pick.  26.  See  Commonwealth  ?'. 
Willard,  22  Pick.  476,  478.  Compare  Brockway  v.  People,  2  Hill, 
558,  562.  The  same  has  been  held  as  to  paying  a  man  to  burn  a  barn, 
whether  well  laid  as  an  attempt  or  more  properly  as  soliciting  to  com- 
mit a  felony.  Commonwealth  v.  Flagg,  135  Mass.  545,  549.  State  v. 
Bowers,  35  So.  Car.  262.  Compare  Regina  /'.  Williams,  1  C.  &  K. 
589 ;  S.  C.  I  Denison,  39.  McDade  v.  People,  29  Mich.  50,  56. 
Stabler  v.  Commonwealth,  95  Penn.  St.  318.  Hicks  v.  Commonwealth, 
86  Va.  223. 

On  the  other  hand,  making  up  a  false  invoice  at  the  place  of  expor- 
tation with  intent  to  defraud  the  revenue  is  not  an  offence  if  not  followed 
up  by  using  it  or  attempting  to  use  it.  United  States  v.  Twent^'-eight 
Packages.  Gilpin,  306,  324.  United  States  v.  Riddle,  5  Crancli,  311. 
So  in  People  v.  Murray,  14  Cal.  159,  the  defendant's  elopement  with 
his  niece  and  his  requesting  a  third  person  to  bring  a  magistrate  to 


142  COMMONWEALTH   V.   PEASLEE.  [CHAP.  II. 

perform  the  marriage  ceremony,  was  held  not  to  amount  to  an  attempt 
to  contract  the  marriage.  But  the  ground  on  which  this  last  decision 
was  put  clearly  was  too  broad.  And  however  it  may  be  at  common 
law,  under  a  statute  like  ours  punishing  one  who  attempts  to  commit  a 
crime  "and  in  such  attempt  does  any  act  towards  the  commission  of 
such  offence"  (Pub.  Sts.  c.  210,  §  8),  it  seems  to  be  settled  elsewhere 
that  the  defendant  could  be  convicted  on  evidence  like  the  present. 
People  V.  Bush,  4  Hill,  133,  134.  McDermott  v.  People,  5  Parker  Cr. 
Rep.  102.  Griffin  v.  State,  26  Ga.  493.  State  v.  Hayes,  78  Mo.  307, 
316.  See  Commonwealth  v.  Willard,  22  Pick.  476.  People  v.  Bush  is 
distinguished  in  Stabler  u.  Commonwealth  as  a  decision  upon  the 
words  quoted.     95  Penn.  St.  322. 

Under  the  cases  last  cited  we  assume  that  there  was  evidence  of  a 
crime  and  perhaps  of  an  attempt, — the  latter  question  we  do  not 
decide.  Nevertheless,  on  the  pleadings  a  majority  of  the  court  is  of 
opinion  that  the  exceptions  must  be  sustained.  A  mere  collection  and 
preparation  of  materials  in  a  room  for  the  purpose  of  setting  fire  to 
them,  unaccompanied  by  any  present  intent  to  set  the  fire,  would  be 
too  remote.  If  the  accused  intended  to  rely  upon  his  own  hands  to  the 
end,  he  must  be  shown  to  have  had  a  present  intent  to  accomplish  the 
crime  without  much  delay,  and  to  have  had  this  intent  at  a  time  and  place 
where  he  was  able  to  carry  it  out.  We  are  not  aware  of  any  carefully 
considered  case  that  has  gone  further  than  this.  We  assume  without 
deciding  that  that  is  the  meaning  of  the  indictment,  and  it  would  have 
been  proved  if  for  instance  the  evidence  had  been  that  the  defendant 
had  been  frightened  by  the  police  as  he  was  about  to  light  the  candle. 
On  the  other  hand,  if  the  offence  is  to  be  made  out  by  showing  a  pre- 
paration of  the  room  and  a  solicitation  of  some  one  else  to  set  the  fire, 
which  solicitation  if  successful  would  have  been  the  defendant's  last 
act,  the  solicitation  must  be  alleged  as  one  of  the  overt  acts.  It  was 
admissible  in  evidence  on  the  pleadings  as  they  stood  to  show  the 
defendant's  intent,  but  it  could  not  be  relied  on  as  an  overt  act  unless 
set  out.  The  necessity  that  the  overt  acts  should  be  alleged  has  been 
taken  for  granted  in  our  practice  and  decisions  (see  e.  g.,  Common- 
wealth V.  Sherman,  105  Mass.  169;  Commonwealth  t\  McLaughlin, 
105  Mass.  460,  463;  Commonwealths.  Shedd,  140  Mass.  451,  453), 
and  is  expressed  in  the  forms  and  directions  for  charging  attempts 
appended  to  St.  1899,  c.  409,  §  28  and  §  2.  Commonwealth  v.  Clark, 
6  Gratt.  675.  State  v.  Colvin,  90  No.  Car.  717.  The  solicitations 
were  alleged  in  McDermott  ??.  People.  In  New  York  it  was  not  neces- 
sary to  lay  the  overt  acts  relied  upon.  Mackesey  v.  People,  6  Parker 
Cr.  Rep.  114,  117,  and  New  York  cases  supra.  See  3  Encyc.  PI.  & 
Pr.,  "  Attempts,"  98.  A  valuable  collection  of  authorities  concerning 
the  crime  will  be  found  under  the  same  title  in  3  Am.  &  Eng.  Encyc. 
of  Law  (2d  ed.).  If  the  indictment  had  been  properly  drawn  we  have 
no  question  that  the  defendant  might  have  been  convicted. 

Exceptions  sustained. 


SECT.  IV.] 


WALSH   V.   PEOPLE. 


148 


?¥ 

WALSH  V.  PEOPLE. 
Supreme  Court  of  Illinois.     1872. 

[Reported  65  Illinois,  58.] 

Mr.  Justice  Thornton  delivered  the  opinion  of  the  court :  — 

The  defendant  below  was  an  alderman  of  the  Common  Council  of 
the  city  of  Chicago.  As  such,  he  was  indicted  for  a  proposal,  made 
by  himself,  to  receive  a  bribe  to  influence  his  action  in  the  discharge 
of  his  duties. 

The  indictment  is,  in  form,  an  indictment  at  common  law  ;  and  it  is 
conceded  that  the  statute  has  not  created  such  an  offence  against  an 
alderman.  Our  criminal  code  has  made  it  ao  offence  to  propose,  or 
agree  to  receive,  a  bribe,  on  the  part  of  certain  officers ;  but  an  alder- 
man is  not,  either  in  terms  or  by  construction,  included  amongst  them. 
Rev.  Stat.  1845,  p.  167,  s.  87. 

It  is  contended  that  the  act  charged  does  not  fall  within  any  of  the 
common  law  definitions  of  bribery ;  that  no  precedent  can  be  found 
for  such  an  offence,  and  that,  as  propositions  to  receive  bribes  have 
probably  often  been  made,  and  as  no  case  can  be  found  in  which  they 
were  regarded  as  criminal,  the  conclusion  must  follow  that  the  offence 
charged  is  no  offence. 

The  weakness  of  the  conclusion  is  in  the  assumption  of  a  premise 
which  may  or  may  not  be  true.  This  particular  phase  of  depravity 
may  never  before  have  been  exhibited ;  and  if  it  had  been,  a  change 
might  be  so  suddenly  made,  by  an  acceptance  of  the  offer  and  a  con- 
currence of  the  parties,  as  to  constitute  the  offence  of  bribery,  which 
consists  in  the  receiving  any  undue  reward  to  incline  the  party  to  act 
contrary  to  the  known  rules  of  honesty  and  integrity. 

But  the  character  of  a  particular  offence  canuot  fairly  be  determined 
from  the  fact  that  an  offence  exactly  analogous  has  not  been  described 
in  the  books.  We  must  test  the  criminality  of  the  act  by  known  prin- 
ciples of  law. 

At  common  law,  bribery  is  a  grave  and  serious  offence  against  public 
justice  ;  and  the  attempt  or  offer  to  bribe  is  likewise  criminal. 

A  promise  of  money  to  a  corporator,  to  vote  for  a  mayor  of  a  cor- 
poration, was  punishable  at  common  law.  Rex  v.  Plympton,  2  Lord 
Raym.  1377. 

The  attempt  to  bribe  a  privy  councillor,  to  procure  an  office,  was  an 
offence  at  common  law.  Rex  v.  Vaughan,  4  Burr.  2494.  In  that  case. 
Lord  Mansfield  said:  "  Wherever  it  is  a  crime  to  take,  it  is  a  crime 
to  give.  They  are  reciprocal.  And  in  many  cases,  especially  in  bribery 
at  elections  to  parliament,  the  attempt  is  a  crime.  It  is  complete  on 
his  side  who  offers  it." 

Why  is  the  mere  unsuccessful  attempt  to  bribe  criminal?  The  offi- 
cer refuses  to  take  the  offered  reward,  and  his  integrity  is  untouched, 


? 


.t 


^ 


144 


WALSH    V.    PEOPLE. 


[chap.  II. 


■^ 


i 


J 


'Pi 


t 


his  conduct  uninfluenced  by  it.  The  reason  for  the  law  is  plain.  The 
offer  is  a  sore  temptation  to  the  weak  or  the  depraved.  It  tends  to 
corrupt ;  and  as  the  law  abhors  the  least  tendency  to  corruption,  it 
punishes  the  act  which  is  calculated  to  debase,  and  which  may  affect 
prejudicially  the  morals  of  the  community. 

Tlie  attempt  to  bribe  is,  then,  at  common  law  a  misdemeanor  ;  and 
the  person  making  the  offer  is  liable  to  indictment  and  punishment. 

What  are  misdemeanors  at  common  law?  Wharton,  in  his  work  on 
criminal  law,  p.  74,  says:  "Misdemeanors  comprise  all  offences,  lower 
than  felonies,  which  may  be  the  subject  of  indictment.  They  are  divided 
mto  two  classes  :  first,  such  as  are  mala  in  se,  or  penal  at  common 
law ;  and  secondly,  such  as  are  mala  prohibita,  or  penal  by  statute. 
Whatever,  under  the  first  class,  mischievously  affects  the  person  or 
property  of  another,  or  openly  outrages  decency,  or  disturbs  public 
order,  or  is  injurious  to  public  morals,  or  is  a  breach  of  official  duty, 
when  done  corruptly,  is  the  subject  of  indictment."' 

In  the  case  of  The  King  v.  Higgins,  2  East,  5,  the  defendant  was 
indicted  for  soliciting  and  inciting  a  servant  to  steal  his  master's  chat- 
tels. There  was  no  proof  of  any  overt  act  towards  carrying  the  intent 
into  execution,  and  it  was  argued,  in  behalf  of  the  prisoner,  that  the 
solicitation  was  a  mere  fruitless,  ineffectual  temptation,  —  a  mere  wish 
or  desire.  ^ 

It  was  held,  by  all  the  judges,  that  the  soliciting  was  a  misdemeanor, 
though  the  indictment  contained  no-  charge  that  the  servant  stole  the 
goods,  nor  that  any  other  act  was  done  except  the  soliciting. 

Separate  opinions  were  delivered  by  all  the  judges. 

Lord  Kenyon  said  the  solicitation  was  an  act,  and  it  would  be  a  slan- 
der upon  the  law  to  suppose  that  such  an  offence  was  not  indictable. 

Gross,  J.,  said  an  attempt  to  commit  a  misdemeanor  was,  in  itself, 
a  misdemeanor.    The  gist  of  the  offence  is  the  incitement. 

Lawrence,  J.,  said:  "All  offences  of  a  public  nature,  that  is,  all 
such  acts  or  attempts  as  tend  to  the  prejudice  of  the  community,  are 
indictable  ;  "  and  that  the  mere  soliciting  the  servant  to  steal  was  an 
attempt  or  endeavor  to  commit  a  crime. 

Le  Blanc,  J.,  said  that  the  inciting  of  another,  by  whatever  means 
it  is  attempted,  is  an  act  done  ;  and  if  the  act  is  done  with  a  criminal 
intent,  it  is  punishable  by  indictment. 

An  attempt  to  commit  an  offence  or  to  solicit  its  commission  is  at 
common  law  punishable  by  indictment.  1  Hawk.  P.  C.  55  ;  Whar.  Cr. 
Law,  78  and  872  ;  1  Russ.  on  Cr.  49. 

While  we  are  not  disposed  to  concur  with  Wharton,  to  the  full  extent, 
in  the  language  quoted,  that  every  act  which  might  be  supposed,  accord- 
ing to  the  stern  ethics  of  some  persons,  to  be  injurious  to  the  public 
morals,  to  be  a  misdemeanor,  yet  we  are  of  opinion  that  it  is  a  mis- 
demeanor to  propose  to  receive  a  bribe.  It  must  be  regarded  as  an 
'incitins  to  offer  one,  and  a  solicitation  to  commit  an  offence.     This,  at 


to  the 


commission 
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SECT.  IV.]  COMMONWEALTH   V.    RANDOLPH.  145 

of  any  indictable  offence,  though  witliout  success,  is  a  misdemeanor. 
3  Chitty  Cr.  Law,  994;  1  Riiss.  on  Cr.  49,  Cartwright's  case;  Kuss. 
and  R.  C.  C.  107,  note  b  ;  Rex  v.  Higgins,  2  East,  supra. 

As  we  have  seen,  the  mere  otfer  to  bribe,  though  it  may  l)e  rejected, 
is  an  offence  ;  and  tlie  party  who  makes  tlie  offer  is  amenable  to  indict- 
ment and  punishment.  The  offer  amounts  to  no  more  than  a  proposal 
to  give  a  bribe  ;  it  is  but  a  solicitation  to  a  person  to  take  one.  The 
distinction  between  an  offer  to  bribe  and  a  proposal  to  receive  one,  is 
exceedingly  nice.  The  difference  is  wholly  ideal.  If  one  man  attempt 
to  bribe  an  officer,  and  influence  him,  to  his  own  degradation  and  to 
the  detriment  of  the  public,  and  fail  in  his  purpose,  is  he  more  guilty 
than  the  officer,  who  is  willing  to  make  sale  of  his  integrity,  debase 
himself,  and  who  solicits  to  be  purchased,  to  induce  a  discharge  of  his 
duties?  The  prejudicial  effects  upon  society  are,  at  least,  as  great  in 
the  one  case  as  in  the  other ;  the  tendency  to  corruption  is  as  potent ; 
and  Avhen  the  officer  makes  the  proposal,  he  is  not  only  degraded,  but 
the  public  service  suffers  thereby. 

According  to  the  well-established  principles  of  the  common  law,  the 
proposal  to  receive  the  bribe  was  an  act  which  tended  to  the  preju- 
dice of  the  community,  greatly  outraged  public  decency,  was  in  the 
highest  degree  injurious  to  the  public  morals,  was  a  gross  breach  of 
official  duty,  and  must  therefore  be  regarded  as  a  misdemeanor,  for 
which  the  party  is  liable  to  indictment. 

It  is  an  offence  more  serious  and  corrupting  in  its  tendencies  than 
an  ineffectual  attempt  to  bribe.  In  the  one  case  the  officer  spurns  the 
temptation,  and  maintains  his  purity  and  integrity  ;  in  the  other,  he 
manifests  a  depravity  and  dishonesty  existing  in  himself,  which,  when 
developed  by  the  proposal  to  take  a  bribe,  if  done  with  a  corrupt  intent, 
should  be  punished  ;  and  it  would  be  a  slander  upon  the  law  to  suppose 
that  such  conduct  cannot  be  checked  by  appropriate  punishment. 

In  holding  that  the  act  charged  is  indictable,  we  are  not  drifting 
into  judicial  legislation,  but  are  merely  applying  old  and  well-settled 
principles  to  a  new  state  of  facts. 


COMMONWEALTH  v.  RANDOLPH. 
Supreme  Court  of  Pennsylvania..      1892. 

[Reported  146  Pennsylvania,  8.3.] 

Per  Curiam.  The  appellant  was  convicted  in  the  court  below  upon 
an  indictment  in  the  first  count  of  which  it  was  charged  that  she, 
"  Sarah  A.  McGinty,  alias  Sarah  A.  Randolph,  .  .  .  unlawfully,  wick- 
edly, and  maliciously  did  solicit  and  invite  one  Samuel  Kissinger, 
then  and  there  being,  and  by  the  offer  and  promise  of  payment  to  said 
Sainuel  Kissinger  of  a  large  sum  of  money,  to  wit,  one  thousand  dol- 
lars, which  to  him,  the  said  Samuel  Kissinger,  she,  the  said  Sarah  A, 
McGinty,  alias  Sarah  A.  Randolph,  then  and  there  did  propose,  offer, 

10 


COMMONWEALTH   V.    RANDOLPH. 


[chap,  il 


promise,  and  agree  to  pay,  did  incite  and  encourage  him,  the  said 
Samuel  Kissinger,  one  "William  S.  Foltz,  a  citizen  of  said  county,  in 
the  peace  of  said  commonwealth,  feloniously  to  kill,  murder,  and  slay, 
contrary  to  the  form  of  the  act  of  general  assembly  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  commonwealth 
of  Pennsvlvania."  Upon  the  ti-ial  below  the  defendant  moved  to  quash 
the  indictment  upon  the  ground  that  •"  the  said  indictment  does  not 
charge  in  anv  count  thereof  any  offence,  either  at  common  law  or  by 
statute."  The  court  below  refused  to  quash  the  indictment ;  and  this 
ruling,  with  the  refusal  of  the  court  to  arrest  the  judgment,  is  assigned 
as  error. 

It  mav  be  conceded  that  there  is  no  statute  which  meets  this  case, 
and,  if  the  crime  charged  is  not  an  offence  at  common  law,  the  judgment 
must  be  reversed.  What  is  a  common-law  offence?  We  endeavored 
to  answer  this  question  in  Com.  v.  McHale,  97  Pa.  397,  410,  in  which 
we  held  that  offences  against  the  purity  and  fairness  of  elections  were 
crimes  at  common  law.  and  indictable  as  such.  We  there  said:  •'  We 
are  of  opinion  that  aU  such  crimes  as  especially  affect  public  society 
are  indictable  at  common  law.  The  test  is  not  whether  precedents  can 
be  found  in  the  books,  but  whether  they  injuriously  affect  the  public 
policy  and  economy."  Tested  by  this  rule,  we  have  no  doubt  that 
the  solicitation  to  commit  murder,  accompanied  by  the  offer  of  money 
for  that  pur^xjse,  is  an  offence  at  common  law. 

It  may  be  conceded  that  the  mere  intent  to  commit  a  crime,  where 
such  intent  is  undisclosed,  and  nothing  done  in  pursuance  of  it,  is  not 
the  subject  of  an  indictment.  But  there  was  something  more  than  an 
undisclosed  intent  in  this  case.  There  was  the  direct  solicitation  to 
commit  a  murder,  and  an  offer  of  money  as  a  reward  for  its  commission. 
This  was  an  act  done,  —  a  step  in  the  direction  of  the  crime,  —  and 
had  the  act  been  perpetrated  the  defendant  would  have  been  liable  to 
punishment  as  an  accessory  to  the  murder.  It  needs  no  argument  to 
show  that  such  an  act  affects  the  public  policy  and  economy  in  a  serious 
manner. 

Authorities  in  this  State  are  very  meagre.  Smith  v.  Com.,  oi  Pa. 
209,  decided  that  solicitation  to  commit  fornication  and  adultery  is  not 
indictable.  But  fornication  and  adultery  are  mere  misdemeanors  b}* 
our  law,  whereas  murder  is  a  capital  felon}-.  Stabler  c.  Com.,  95  Pa. 
318,  decided  that  the  mere  delivery  of  poison  to  a  person,  and  solicit- 
ing him  to  place  it  in  the  spring  of  a  certain  part}",  is  not  ••  an  attempt 
to  administer  poison,"  within  the  meaning  of  the  eighty-second  section 
of  the  Act  of  March  31,  1860,  P.  L.  403.  In  that  case,  however,  the 
sixth  count  of  the  indictment  charged  that  the  defendant  did  "  falsely 
and  wickedly  solicit  and  in\ite  one  John  Xeyer.  a  servant  of  the  said 
Richard  S.  Waring,  to  administer  a  certain  poison  and  noxious  and 
dangerous  substance,  commonly  called  Paris  green,  to  the  said  Richard 
F.  Waring,  and  divers  other  persons,  whose  names  are  to  the  said 
inquest  unknown,  of  the  family  of  the  said  Richard  F.  Waring,"  etc. 


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SECT.  IV.]  COMMONWEALTH   V.    RANDOLPH.  147 

The  defendant  was  convicted  upon  this  count,  and  while  the  judgment 
was  reversed  upon  the  first  count  charging  "  an  attempt  to  administer 
poison,"  we  sustained  the  conviction  upon  the  sixth  count ;  Mekcur,  J., 
saying:  "The  conduct  of  the  plaintiff  in  error,  as  testified  to  b}-  the 
witness,  undoubtedly  shows  an  offence  for  which  an  indictment  will  lie 
without  any  further  act  having  been  committed.  He  was  rightly  con- 
victed, therefore,  on  the  sixth  count." 

The  authorities  in  England  are  very  full  upon  this  point.  The  lead- 
ing case  is  Rex  v.  Higgins,  2  East,  5.  It  is  ver}-  similar  to  the  case 
at  bar,  and  it  was  squarely  held  tiiat  solicitation  to  commit  a  felony  is 
a  misdemeanor  and  indictable  at  common  law.  In  that  case  it  was  said 
by  Lord  Kenyon,  C.  J. :  "  But  it  is  argued  that  a  mere  intent  to  com- 
mit evil  is  not  indictable  without  an  act  done ;  but  is  there  not  an  act 
done,  where  it  is  charged  that  the  defendant  solicited  another  to  commit 
a  felony  ?  The  solicitation  is  an  act,  and  the  answer  given  at  the  bar 
is  decisive  that  it  would  be  sufficient  to  constitute  an  overt  act  of  high 
treason."  We  are  not  unmindful  of  the  criticism  of  this  case  by  Chief 
Justice  WooDWAKi>  in  Smith  v.  Com.,  supra,  but  we  do  not  think  it 
affects  the  authority  of  that  case.  The  point  involved  in  Rex  v.  Hig- 
gins was  not  before  the  court  in  Smith  v.  Com.,  and  could  not  have 
been  and  was  not  decided.  It  is  true,  this  is  made  a  statutory  offence 
by  St.  24  &  25  Vict. ;  but,  as  is  said  b}-  Mr.  Russell  in  his  work  on 
Crimes  (volume  1,  p.  967),  in  commenting  on  this  act:  "As  all  the 
crimes  specified  in  this  clause  appear  to  be  misdemeanors  at  common 
law,  the  effect  of  this  clause  is  merely  to  alter  the  punishment  of  them." 
In  other  words,  that  statute  is  merely  declaratory  of  the  common  law. 

Our  best  text-books  sustain  the  doctrine  of  Rex  v.  Higgins.  "  If 
the  crime  solicited  to  be  committed  be  not  perpetrated,  then  the  adviser 
can  only  be  indicted  for  a  misdemeanor."  1  Chit.  Crim.  Law,  p. 
264.  See,  also,  1  Archb.  Crim.  Pr.  «fe  PL  19,  and  1  Bish.  Crim.  Law, 
§  768,  where  the  learned  author  says:  "The  law  as  adjudged  holds, 
and  has  held  from  the  beginning  in  all  this  class  of  cases,  an  indict- 
ment sufficient  which  simply  charges  that  the  defendant,  at  the  time 
and  place  mentioned,  falsely,  wickedly,  and  unlawfully  did  solicit  and 
incite  a  person  named  to  commit  the  substantive  offence,  without  any 
further  specification  of  overt  acts.  It  is  vain,  then,  to  say  that  mere 
solicitation,  the  mere  entire  thing  which  need  be  averred  against  a 
defendant  as  the  ground  for  his  conviction,  is  no  offence."  We  are  of 
opinion  the  appellant  was  properly  convicted,  and  the  judgment  is 
affirmed.'' 

1  See  State  v.  Avery,  7  Conn.  266  ;  Com.  v.  Flagg,  135  Mass.  545.  Cf.  Cox  p. 
People,  82  111.  191;  Smith  v.  Com.,  54  Pa.  209.  —Ed. 


148  STATE  V.    HURLEY.  [CHAP.  II. 

STATE   V.    HURLEY. 
SuPRKME  Court  of  Vermont.     1906. 

[Reported  79  Vt.  000.] 

MuxsoN,  J.  The  respondent  is  informed  against  for  attempting  to 
break  open  the  jail  in  which  he  was  confined  by  procuring  to  be  de- 
livered into  his  hands  12  steel  hack  saws,  with  an  intent  to  break  open 
tlie  jail  therewith.  The  state's  evidence  tended  to  show  that,  in  pursu- 
ance of  an  arrangement  between  the  respondent  and  one  Tracy,  a 
former  inmate,  Tracy  attempted  to  get  a  bundle  of  hack  saws  to  the 
respondent  by  throwing  it  to  him  as  he  sat  behind  the  bars  at  an  open 
window,  and  that  the  respondent  reached  through  the  bars  and  got  the 
bundle  into  his  hands,  but  was  ordered  at  that  moment  by  the  jailer  to 
drop  it,  and  did  so.  The  court  charged  in  substance  that  if  the  respon- 
dent arranged  for  procuring  the  saws  and  got  them  into  his  possession, 
with  an  intent  to  break  open  the  jail  for  the  purpose  of  escaping,  he 
was  guilty  of  the  offence  alleged.  The  respondent  demurred  to  the  in- 
formation, and  excepted  to  the  charge.  Bishop  "defines  a  criminal  at- 
tempt to  be  "  an  intent  to  do  a  particular  criminal  thing,  with  an  act 
toward  it  falling  short  of  the  thing  intended."  2  Cr.  Law,  §  728. 
The  main  difficulty  in  applying  this  definition  lies  in  determining  the 
relation  which  the  act  done  must  sustain  to  the  completed  oflfence. 
That  relation  is  more  fully  indicated  in  the  following  definition  given 
bv  Stephen  :  "  An  attempt  to  commit  a  crime  is  an  act  done  with  intent 
to  commit  that  crime,  and  forming  part  of  a  series  of  acts  which  would 
constitute  its  actual  commission  if  it  were  not  interrupted."  Dig.  Cr. 
Law,  33.  All  acts  done  in  preparation  are,  in  a  sense,  acts  done  toward 
the  accomplishment  of  the  thing  contemplated.  But  most  authorities 
certainly  hold,  and  many  of  them  state  specifically,  that  the  act  must 
be  something  more  than  mere  preparation.  Acts  of  preparation,  how- 
ever, may  have  such  proximity  to  the  place  where  the  intended  crime 
is  to  be  committed,  and  such  connection  with  a  purpose  of  present  ac- 
complishment, that  they  will  amount  to  an  attempt.  See  note  to  People 
V.  Moran  (N.  Y.)  20  Am.  St.  Rep.  741 ;  People  v.  Stiles,  75  Col.  570, 
17  Pac.  9S3  ;  People  v.  Lawton,  56  Barb.  (N.  Y.)  126. 

Various  rules  have  been  formulated  in  elucidating  this  subject. 
Some  acts  toward  the  commission  of  the  crime  are  too  remote  for  the 
law  to  notice.  The  act  need  not  be  the  one  next  preceding  that  needed 
to  complete  the  crime.  Preparations  made  at  a  distance  from  the 
place  where  the  offence  is  to  be  committed  are  ordinarily  too  remote  to 
satisfy  the  requirement.  1  Bish.  Cr.  Law,  §§  759,  762  (4)  763.  The 
preparation  must  be  such  as  would  be  likely  to  end,  if  not  extraneously 
interrupted,  in  the  consummation  of  the  crime  intended.  3  Am.  & 
Ency.  Law  (2d  ed.)  266,  note  7.  The  act  must  be  of  such  a  character 
as  to  advance  the  conduct  of  the  actor  beyond  the  sphere  of  mere  intent. 


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SECT.  IV.]  STATE    V.   HURLEY.  149 

It  must  reach  far  enough  towards  the  accomplishment  of  the  desired 
result  to  amount  to  the  commencement  of  the  consummation.  Hicks 
V.  Com.,  86  Va.  223,  9  S.  E.  1024,  19  Am.  St.  Rep.  891.  But  after  all 
that  has  been  said,  the  application  is  difficult.  One  of  the  best  known 
cases  where  acts  of  preparation  were  held  insufficient  is  People  v. 
Murra}',  \\  Cal.  159,  which  was  an  indictment  for  an  attempt  to  con- 
tract an  incestuous  marriage.  There  the  defendant  had  eloped  with  his 
niece  with  the  avowed  purpose  of  marrying  her,  and  had  taken  measures 
to  procure  the  attendance  of  a  magistrate  to  perform  the  ceremony. 
In  disposing  of  the  case,  Judge  Field  said:  ''Between  preparations 
for  the  attempt  and  the  attempt  itself,  there  is  a  wide  difference.  The 
preparation  consists  in  devising  or  arranging  the  means  or  measures 
necessary  for  the  commission  of  the  offence ;  the  attempt  is  the  direct 
movement  toward  the  commission  after  the  preparations  are  made." 
Mr.  Bishop  thinks  this  case  is  near  the  dividing  line,  and  doubts  if  it 
will  be  followed  by  all  courts.  1  Cr.  Law,  §  763  (3.)  Mr.  Wharton 
considers  the  holding  an  undue  extension  of  the  doctrine  that  prelimi- 
nary preparations  are  insufficient.  Cr.  Law,  181,  note.  But  the  case 
has  been  cited  with  approval  by  courts  of  high  standing.  The  exact 
inquiry  presented  by  the  case  before  us  is  whether  the  procurement  of 
the  means  of  committing  the  offence  is  to  be  treated  as  a  preparation 
for  the  attempt,  or  as  the  attempt  itself.  In  considering  this  question,  it 
must  be  remembered  that  there  are  some  acts,  preparatory  in  their  char- 
acter, which  the  law  treats  as  substantive  offences  ;  for  instance,  the 
procuring  of  tools  for  the  purpose  of  counterfeiting,  and  of  indecent 
prints  with  intent  to  publish  them.  Comments  upon  cases  of  this  char- 
acter may  lead  to  confusion  if  not  correctly  apprehended.  Wharton, 
Cr.  Law,  §  180,  and  note  1. 

The  case  of  Griffin  v.  The  State,  26  Ga.  493,  cited  by  the  respon- 
dent,  cannot  be  accepted  as  an  authority  in  his  favor.  There  the  de- 
fendant was  charged  with  attempting  to  break  into  a  storehouse  with 
intent  to  steal,  by  procuring  an  impression  of  the  key  to  the  lock  and 
preparing  from  this  impression  a  false  key  to  fit  the  lock.  The  section 
of  the  Penal  Code  upon  which  the  indictment  was  based  provides  for 
the  indictment  of  any  one  who  "  shall  attempt  to  commit  an  offence 
prohibited  by  law,  and  in  such  an  attempt  shall  do  any  act  toward  the 
commission  of  such  offence."  The  court  considered  that  the  General 
Assembly  used  the  word  "attempt"  as  synonymous  with  "intend," 
and  that  the  object  of  the  enactment  was  to  punish  "  intents,"  if  dem- 
onstrated by  an  act.  The  court  cited  Rex  v.  Sutton,  2  Str.  1074,  as  a 
strong  authority  in  support  of  the  indictment.  There  the  prisoner  was 
convicted  for  having  in  his  possession  iron  stamps,  with  intent  to  im- 
press the  sceptre  on  sixpences.  This  was  not  an  indictment  for  any 
attempt,  but  for  the  offence  of  possessing  tools  for  counterfeiting  with 
intent  to  use  them.  The  Georgia  court,  by  its  construction  of  the 
statute,  relieved  itself  from  the  distinction  between  "attempts"  and 
crimes  of  procuring  or  possessing  with  unlawful  intent. 


loO  STATE   V.   HUKLEY.  [CHAP.  II. 

The  act  in  question  here  is  the  procuring  by  a  prisoner  of  tools 
adaptcfl  to  jail  breaking.  That  act  stands  entirely  unconnected  with 
any  further  act  looking  to  their  use.  It  is  true  that  the  respondent 
procured  them  with  the  design  of  breaking  jail.  But  he  had  not  put 
that  design  into  execution,  and  might  never  have  done  so.  He  had 
procured  the  means  of  making  the  attempt,  but  the  attempt  itself  was 
still  in  abeyance.  Its  inauguration  depended  upon  the  choice  of  an 
occasion  and  a  further  resolve.  That  stage  was  never  reached,  and  the 
procuring  of  the  tools  remained  an  isolated  act.  To  constitute  an 
attempt,  a  preparatory  act  of  this  nature  must  be  connected  with  the 
accomplishment  of  the  intended  crime  by  something  more  than  a 
general  design. 

Exceptions  sustained,  judgment  and  verdict  set  aside,  demurrer  sus- 
tained, information  held  insufficient  and  quashed,  and  respondent 
discharged. 


SECT.  I.]  REX   V.   GILL.  151 

CHAPTER  III. 
THE  OFFENCE:  ELEME^^TS  £)F   THE  OFFENCE. 


77 

SECTION  I. 

Necessity  of  an  Act. 

ANONYMOUS. 

King's  Bench.     1370. 

[Reported  Lib.  Assis.  287,  pi.  17.] 

William  H.  was  arraigned  in  the  King's  Bench  for  that  he  had 
killed  one  J.  Be  B.  feloniously  ;  and  he  pleaded  not  guilty.  The  jury  , 
came  and  said  that  the  dead  man  struck  W.  from  behind  in  the  neck 
with  his  fist,  so  that  W.  fell  to  the  ground ;  and  while  W.  was  on  the 
ground  the  dead  man  drew  his  knife  to  have  killed  W.,  and  W.,  lying 
on  the  ground,  drew  his  own  knife,  and  the  dead  man  was  so  hasty  to 
have  killed  W.  that  he  fell  on  W.'s  knife  and  so  killed  himself. 

Knivet,  C.  J.  If  W.  had  killed  the  dead  man  in  self-defence  W.'s 
chattels  would  have  been  forfeited,  and  W.  would  have  sued  the  king  to 
have  a  charter  of  pardon ;  but  now  it  is  found  that  the  dead  man  killed 
himself  in  a  way,  wherefore  we  will  advise  whether  W.  shall  be  put  to 
Bue  the  king  for  his  charter  and  forfeit  his  goods,  or  not. 

And  then  he  was  adjudged  not  guilty  and  his  chattels  not  forfeited. 


REX  V.  GILL. 
King's  Bench.     1719. 
[Reported  1  Strange,  190.] 

An  indictment  for  throwing  down  skins  into  a  man's  yard,  which  was 
a  public  way,  per  qucxl  another  man's  eye  was  beat  out.  On  the  evi- 
dence it  appeared  the  wind  took  the  skin  and  blew  it  out  of  the  way, 
and  so  the  damage  happened. 

The  Chief  Justice  [Pratt]  remembered  the  case  of  the  hoy^  and 
that  in  Hobart,^  where,  in  exercising,  one  soldier  wounded  another,  and 
a  case  in  the  year-book,  of  a  man  lopping  a  tree,  where  the  bough  was 
blown  at  a  distance  and  killed  a  man.  And  in  the  principal  case  the 
defendants  were  acquitted. 

1  Amies  v.  Stevens,  1  Stra.  128.  ^  Weaver  v.  Ward,  Hob.  134. 


HEX   V.    SUTTON, 


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REX   V.    SUTTON. 
King's  Bench.     1736. 

Cases  temp.  Hardwicke,  370.]  i 

'Y^  The  defeudant  was  indicted,  for  that  being  a  person  of  evil  fame 
and  reputation,  on  tlie  25tli  day  of,  &c.,  witliout  any  lawful  authority, 
[he]  liad  in  his  custody  and  possession  two  iron  stamps,  each  of  which 
would  make  or  impress  the  figure,  resemblance,  and  similitude  of  one 
of  the  sceptres  made  and  imprest  upon  the  current  gold  coin  of  this 
kingdom,  called  half-guineas,  with  an  intent  to  make  the  impression  of 
sceptres  on  divers  pieces  of  silver  coin  of  this  realm,  called  sixpences, 
and  to  color  such  pieces  of  the  color  of  gold,  and  fraudulently  to 
utter  them  to  his  Majesty's  subjects,  for  and  as  pieces  of  lawful  and 
current  gold  coin  of  this  realm,  called  half-guineas,  against  the  peace 
of  our  Lord  the  King,  his  crown  and  dignity.  And  the  indictment 
further  sets  forth,  that  the  defendant,  the  day  and  year  aforesaid,  in 
i-he  said  county  of  Northampton,  unlawfully  had  in  his  custo;ly  and 
y()Ossession  one  piece  of  silver,  colored  over  with  certain  metal  pro- 
ducing the  color  of  gold,  and  feloniously  made  to  resemble  a  piece  of 
the  current  coin  of  this  realm,  commonly  called  a  half-guinea,  with 
intent  to  utter  the  said  piece  so  colored  and  feloniously  made  to  re- 
semble a  half-guinea  to  some  of  his  Majesty's  subjects  for  and  as  a 
piece  of  lawful  and  current  gold  coin  of  this  realm,  called  a  half- 
guinea  (he,  the  said  defendant,  then  and  there  well  knowing  the  snid 
piece  to  be  silver  coin  colored  and  falsely  made),  to  the  evil  example 
of  all  otliers,  and  against  the  peace  of  our  Lord  the  King,  his  crown 
and  dignity. 

The  defendant  was  tried  upon  this  indictment  at  the  last  summer 
assizes,  and  found  guilty,  before  my  Lord  Hardw^icke,  C.  J.  ;  and  he 
having  some  doubt  what  the  offence  was,  the  defendant  was  brought 
up  last  Michaelmas  term  by  habeas  corj^us,  and  committed  to  Newgate, 
and  the  indictment  removed  into  the  King's  Bench  by  certiorari,  for 
the  opinion  of  the  court.     And  Lord  Hardwicke,  C.  J.,  then  said  : 

As  to  the  first  part  of  the  indictment,  I  doubted  whether  it  w^as  not 
high  treason  within  the  Stat.  8  &  9  Will.  III.  c.  26,  s.  6  ;  but  it  is 
not  at  all  clear  it  would  be  so,  because  this  is  only  to  stamp  part  of 
one  side  of  the  coin,  viz.,  putting  sceptres.  Then  it  is  a  misdemeanor 
at  common  law,  and  it  did  not  occur  to  me  that  having  in  one's  cus- 
tody with  an  intent,  without  any  act  done,  was  a  misdemeanor.     As  to 

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SECT,  I.]  EEX   V.    SUTTON.  153 

the  secoiifl  part,  I  donbted  wlietlier  any  precedent  could  be  found  to 
show  that  tlie  bare  liaving  counterfeit  money  iu  one's  possession,  with 
intention  to  utter  it,  without  uttering  it,  was  an  offence.^ 

For  the  defendant  it  was  argued,  that  the  common  law  takes  no 
notice  of  a  bare  intention,  as  a  crime,  unless  coupled  with  some  overt 
act ;  and  therefore,  though  in  the  time  of  YAw.  III.  an  intention  to  rob 
was  a  felony,  yet  even  then,  as  appears  by  3  Inst.  fo.  5,  there  must 
have  been  some  overt  act  to  show  that  intention.  So  in  Bacon's  Case, 
1  Sid.  230,  and  1  Lev.  146,  though  an  intention  to  kill  the  Master  of 
the  Rolls  was  adjudged  a  misdemeanor,  yet  there  was  an  overt  act, 
viz.,  a  reward  offered  by  the  defendant  for  doing  it:  so  in  Holmes's 
Case,  Cro.  Car.  376,  where  burning  his  house  with  an  intention  to  burn 
his  neighbor's  was  held  a  misdemeanor  ;  yet  there  was  an  act  joined 
to  the  evil  intention,  viz.,  the  burning  his  own  house.  So  in  the  case 
of  The  King  v.  Cooper,  5  Mod.  206,  and  Skinner,  637,  where  an  inten- 
tion to  assist  the  king's  enemies  was  held  a  misdemeanor  ;  yet  there 
was  an  overt  act  laid,  viz.,  hiring  a  boat  for  that  purpose.  But  this 
indictment  is  really  nothing  more  than  for  an  intention  to  make  an 
impression  with  such  stamps  as  he  had  in  his  custody  ;  and  a  man  may 
be  possessed  of  a  thing  without  having  done  anything  to  acquire  the 
possession  ;  and  the  bare  having  a  thing  is  not  unlawful,  unless  made 
use  of,  or  unless  such  bare  possession  is  made  a  crime  by  a  positive 
law,  as  in  the  case  of  the  Statute  of  Will.  III.  [c.  26]. 

Per  Cur.  viz..  Page,  Probyn,  and  Lee,  JJ.  Judgment  must  be  given 
against  the  defendant. 

Lee,  J.  It  is  certain  that  a  bare  intention  is  not  punishable ;  and 
yet  when  joined  with  acts  whose  circumstances  may  be  tried,  it  is  so  ; 
so  an  action  innocent  in  itself  may  be  made  punishable  by  an  inten- 
tion joined  to  it ;  as  loading  wool  with  intention  to  transport  it,  as 
Lord  Hale  says  in  his  Hist.  Plac.  Coron.  vol.  i.  p.  229.  In  this  case  the 
indictment  is  for  unlawfully  having  in  his  custody  stamps  capable  of 
2naking  impression  of  sceptres,  with  intent  to  make  such  impression : 
now  the  Statute  of  8  &  9  Will.  III.  [c.  26]  has  considered  the  having 
as  an  act ;  for,  by  the  statute,  it  is  high  treason  to  have  [knowingly 
any]  instrument,  &c.,  in  his  possession  ;  and  though  the  word  "  know- 
ingly "  is  added,  yet  that  is  an  act  of  the  mind  only ;  and  the  only  act 
capable  of  trial  in  the  offence  against  the  statute  is  the  having  in  pos- 
session. All  that  is  necessary  in  this  case  is  an  act  charged,  and  a 
criminal  intention  joined  to  the  act. 

The  court  gave  judgment  tliat  the  defendant  do  stand  iu  the  pillory 
at  Charing-cross  ;  and  in  consideration  of  his  poverty  and  long  impris- 
onment hitherto,  that  he  do  pay  a  fine  of  6s.  did.  and  be  imprisoned  for 
six  mouths. 

1  The  argument  for  the  prosecution  is  omitted. 


154  REX    V.    HEATH.  [CHAP,  III. 


/  oo 

REX   V.  HEATH. 

Crown  Case  Reserved.     1810. 

{Reported  Russ.  Sr  Ry.  184.] 

This  case  stood  for  trial  before  Mr.  Justice  Batley,  at  the  Lent 
assizes  for  the  county  of  Warwick,  in  the  j-ear  1810  ;  but  as  the  learned 
Judge  thought  it  questionable  whether  the  facts  constituted  any  offence, 
and  as  the  defendant  was  out  upon  bail,  he  postponed  the  trial  by  con- 
sent, that  the  opinion  of  the  judges  might  in  the  meantime  be  taken 
upon  the  case. 

The  indictment  contained  three  counts :  one  for  uttering  counterfeit 
money,  a  second  for  having  it  in  his  possession,  knowing  it  to  be  coun- 
terfeit, with  intent  to  circulate  and  put  off  the  same  among  the  liege 
subjects  of  our  Lord  the  King,  and  to  defraud  them,  and  a  third  for 
having  it  in  his  possession  knowingly,  designedly,  and  illegally,  know- 
ing it  to  be  counterfeit. 

The  only  act  of  uttering  was  delivering  a  box  packed  up,  containing 
2800  bad  shillings,  and  1000  bad  sixpences  at  a  coach  ofl3ce  at  an  inn 
at  Birmingham  addressed  to  a  man  at  Glasgow,  and  the  uttering  was 
stated  to  be  to  the  book-keeper  at  the  inn. 

The  box  was  stopped  at  the  inn. 

The  following  authorities  were  referred  to  in  support  of  the  second 
and  third  counts,  Rex  v.  Sutton,  Ca.  temp.  Hardw.  370  ;  Rex  v.  Sco- 
field,  Cald.  397,  and  Rex  v.  Higgins,  2  East.  5. 

In  Easter  term,  31st  May,  1810,  this  case  was  taken  into  considera- 
tion, all  the  judges  being  present.  They  relied  much  upon  the  authority 
of  Rex  V.  Sutton,  and  the  cases  there  cited,  in  forming  their  opinion, 
and  were  then  inclined  to  think  this  a  misdemeanor  as  stated  in  the 
second  count.  But  on  considering  this  case  again  on  the  first  day 
of  Trinity  term  ensuing,  the  majority  of  the  judges  seemed  to  be  of 
opinion  that  "  having  in  his  possession"  with  the  terms  knowingly,  «S:c. 
annexed  to  it,  could  not  be  considered  an  act,  and  that  an  intent  without 
an  act  was  not  a  misdemeanor,  and  they  considered  the  case  of  Rex  v. 
Sutton  as  untenable.^ 

1  The  result  seems  to  be  that  the  second  and  third  counts  of  the  indictment  as  here 
framed  are  not  good,  and  any  judgment  upon  them  might  be  arrested. 

But  the  facts  seemed  to  afford  grounds  for  a  good  indictment,  by  stating  that  the 
defendant  acquired  or  procured  the  bad  money  with  intent  to  circulate  it,  or  packing 
it  up  or  delivering  to  the  book-keeper  with  intent  to  circulate  it.     ms.  jud. 

See  the  same  point  decided  as  in  the  above  case  in  Rex  v.  Stewart,  Mich.  T.  1814, 
post.    See  also  Rex  v.  CoUicott,  Hilary  T.  1812,  post.  —  Rbp. 


SECT.  I.]  DUGDALE   V.   REGINA,  15c 


/  Cf 

DUGDALE  V.  REGINA. 

Queen's  Bench.    1853. 

[Reported  1  Ellis  ^-  Blackburn,  435.] 

The  defendant  was  indicted  at  the  Middlesex  sessions.  Tlie  indict- 
ment contained  seven  counts.^  The  defendant  having  been  found  guilt}', 
judgment  was  passed  upon  him,  separately  upon  each  count,  whereupon 
he  brought  error  in  this  court.     Joinder  in  error. 

W.  J.  Metcalfe,  for  the  plaintiff  in  error.  The  question  on  the  first 
and  corresponding  counts  is,  whether  the  procuring  obscene  prints  with 
intent  to  publish  them  be  a  misdemeanor  at  common  law.  The  counts 
charge  no  attempt  to  publish.  On  the  second  and  corresponding  counts 
the  question  is,  whether  the  possessing  with  intent  to  publish  be  a  mis- 
demeanor, no  act  at  all  being  charged.^ 

Clarkson,  contra,  was  stopped  by  the  court. 

Lord  Campbell,  C.  J.  We  have  decisions  on  both  sets  of  counts. 
Rex  V.  Heath,  Russ.  &  R.  184,  shows  that  those  counts  cannot  be  sup- 
ported which  merel}'  charge  a  possession  with  intent  to  publish ;  the 
mere  intent  cannot  constitute  a  misdemeanor  when  unaccompanied 
with  any  act.  The  case  is  precisely  in  point.  But,  as  to  the  counts 
which  charge  a  procuring  with  intent  to  publish,  we  find  that  in  Rex  v. 
Fuller,  Russ.  &  R.  308,  in  Easter  term,  1816,  all  the  judges  were  of 
opinion  that  the  procuring  counterfeit  coin  with  intent  to  utter  was 
a  misdemeanor,  and  that  this  might  be  evidenced  by  the  possession. 
Must  not  the  law  be  the  same  as  to  the  publication  of  indecent  prints  ? 
The  circulation  of  counterfeit  coin  is  a  statutory'  offence  ;  the  circulation 
of  indecent  prints  is  punished  at  common  law  for  the  protection  of 
morals.  The  procuring  of  such  prints  is  an  act  done  in  the  commence- 
ment of  a  misdemeanor,  the  misdemeanor  being  the  wicked  offence  of 
publishing  obscene  prints. 

.  Coleridge,  J.  I  am  of  the  same  opinion.  The  law  will  not  take 
notice  of  an  intent  without  an  act.  Possession  is  no  such  act.  But 
procuring,  with  the  intent  to  commit  the  misdemeanor,  is  the  first  step 
towards  the  committing  of  the  misdemeanor. 

"WiGHTMAN,  J.  I  concur  on  both  points.  Mr.  Metcalfe  has  clearly 
shown  that  the  possession  is  not  indictable,  as  not  being  an  act ;  but 
the  procuring  is  an  act. 

Crompton,  J.    Rex  v.  Fuller,  Russ.  &  R.  308,  is  a  distinct  authority. 
Judgment  on  the  first  and  corresponding  counts  affirmed. 

1  The  indictment  is  omitted. 

2  The  argument  is  omitted. 


156  UNITED   STATES   V.   RIDDLE.  [CHAP.  III. 


UNITED   STATES   v.   RIDDLE. 

Supreme  Court  of  the  United  States.     1809. 
[Reported  5  Crunch,  311.] 

Error  to  the  Circuit  Court  of  the  district  of  Columbia,  wliicli  had 
affirmed  the  sentence  of  the  district  court  restoring  certain  cases  of 
merchandise  which  had  been  seized  bj-  the  collector  of  Alexandria, 
under  the  66th  section  of  the  Collection  Law  of  1799,  vol.  iv.  p.  388,^ 
because  the  goods  were  not  "  invoiced  according  to  the  actual  cost 
thereof,  at  the  place  of  exportation,"  with  design  to  evade  part  of  the 
duties. 

The  goods  were  consigned  b}'  a  merchant  of  Liverpool,  in  England, 
to  Mr.  Riddle,  at  Alexandria,  for  sale,  accompanied  by  two  invoices ; 
one  charging  them  at  £67  5s.  6f?.,  the  other  at  £132  14s.  9d.,  with 
directions  to  enter  them  by  the  small  invoice,  and  sell  them  by  the 
larger.  Mr.  Riddle  delivered  both  invoices  and  all  the  letters  and 
papers  to  the  collector,  and  offered  to  enter  the  goods  in  such  manner 
as  he  should  direct.  The  collector  informed  him  that  he  must  enter 
them  by  the  larger  invoice,  which  he  did.  liut  the  collector  seized  them 
as  forfeited  under  the  66th  section  of  the  Collection  Law  of  1799,  which 
enacts  that  "  if  any  goods,  wares,  or  merchandise,  of  which  entry  shall 
have  been  made  in  the  office  of  a  collector,  shall  not  be  invoiced  accord- 
1  ing  to  the  actual  cost  thereof  at  the  place  of  exportation,  with  design 
to  evade  the  duties  thereupon,  or  any  part  thereof,  all  such  goods,"  &c., 
;  "  shall  be  forfeited."  The  same  section  contains  a  provision  for  the 
j  appraisement  of  the  goods  by  two  merchants  in  case  the  collector  shall 
suspect  that  the  goods  are  not  invoiced  at  a  sum  equal  to  that  at  which 
they  have  been  usually  sold  in  the  place  from  whence  they  were  im- 
ported, with  a  proviso  that  such  appraisement  should  not,  upon  the 
trial,  be  conclusive  evidence  of  the  actual  and  real  cost  of  the  said 
goods  at  the  place  of  exportation. 

Rodney,  Attorney- General  for  the  United  States,  contended  that  as 
the  goods  were  invoiced  lower  than  their  actual  cost,  with  intent  to  de- 
fraud the  revenue,  the}'  were  not  invoiced  according  to  their  actual  cost 

^  "  If  anj'  goods,  wares,  or  iDerchamlise,  of  which  entry  shall  have  bpen  made  m  tlie 
office  of  a  collector,  shall  not  be  invoiced  according  to  the  actual  cost  thereof  at  the 
place  of  exportation,  with  design  to  evade  the  duties  thereupon,  or  any  part  thereof,  all 
such  goods,  wares,  or  merchandise,  or  the  value  thereof,  to  he  recovered  of  the  person 
making  entry,  shall  be  forfeited." —  Ed. 


SECT.  I.]  MOUSE    V.    STATE.  157 

with  the  like  intent;  and  the  goods  having  been  actually  entered, 
although  not  by  the  fraudulent  invoice,  they  were  within  the  letter  of 
the  law,  and  ought  to  be  condemned.  Besides,  it  docs  not  appear  that 
the  higher  invoice  was  according  to  the  actual  cost. 

Svmnn,  co?itra.  The  lower  invoice  was  probably  what  the  goods 
cost  the  consignor,  who  manufactured  them.  The  higher  invoice  was 
what  such  goods  were  then  selling  for  at  that  place. 

But  even  if  a  fraud  was  contemplated,  it  was  not  carried  into  effect. 
No  entry  was  made,  nor  attempted  to  be  made  by  the  consignee,  upon 
the  false  invoice.  It  was  made  upon  the  true  invoice,  and  in  conformity 
with  the  directions  of  the  collector. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court  to  the  following 
effect :  — 

The  court  thinks  this  case  too  plain  to  admit  of  argument,  or  to 
require  deliberation.  It  is  not  within  even  the  letter  of  the  law,  and  it 
is  certainly  not  within  its  spirit.  The  law  did  not  intend  to  punish  the 
intention,  but  the  attempt  to  defraud  the  revenue. 

/Sentence  affirmed. 


JOS.  ,.,^,- 

MORSE  y.  STATE.  %v-<5° 

Supreme  Court  of  Erkoks  of  Connecticut.     1825. 

[Reported  6  Connecticut,  9.] 

This  was  an  information  against  the  plaintiff  in  error,  for  a  violation 
of  the  statute  "  concerning  the  students  of  Yale  College,"  passed  in 
May,  1822.^  The  information  alleged  that  the  defendant,  on  the  15th 
of  January,  1824,  gave  credit  to  Washington  Van  Zandt,  then  a  student 
of  Yale  College,  and  under  the  age  of  twenty-one  years,  for  suppers, 
w^ine  and  other  liquors,  to  the  amount  of  seven  dollars,  without  the 
knowledge  of  the  parent  or  guardian  of  Van  Zandt,  and  without  the 
knowledge  or  consent  of  the  officers  of  Yale  College,  or  either  of  them. 

On  the  trial  before  the  county  court  the  defendant  claimed  that  if 
credit  was  given  to  Van  Zandt  by  any  one,  it  was  given  by  Stephen 
Northam,  who  w^as  the  servant  and  bar-keeper  of  the  defendant,  against 
his  express  directions  ;  and  that  the  defendant  could  not  be  responsible 
criminally  for  such  act  of  Northam.  The  court  charged  the  jury  that 
if  they  should  find  that  the  defendant  had  assented  to  Northam's  act  in 
giving  credit  to  Van  Zandt,  after  the  credit  was  given,  it  was  the  same 
as  if  the  defendant  had  previously  authorized  the  giving  of  such  credit ; 

1  The  first  section  of  this  act  is  in  these  words  :  "That  no  person  or  persons  shall 
give  credit  to  any  student  of  Yale  College,  being  a  minor,  without  the  consent,  in 
writing,  of  his  parent  or  guardian,  or  of  such  officer  or  officers  of  the  college  as  may  be 
authorized,  by  the  government  thereof,  to  act  in  such  cases,  except  for  washing  or 
medical  aid."  The  2d  section  inflicts  a  penalty  from  $20  to  $300  for  a  violation  of 
the  law. 


158  STATE   V,    MOORE.  [CHAP.  IIL 

and  that  the  defendant  in  that  case  would  be  liable  as  principal,  the 
same  as  if  he  had  been  present,  advising  or  consenting  to  the  giving  of 
such  credit.^ 

The  jury  found  the  defendant  guilty- ;  who  thereupon  filed  a  bill  of 
exceptions,  and  brought  a  writ  of  error;  which  was  reserved  for  the 
advice  of  the  Supreme  Court  of  Errors. 

HosMER,  C.  J.  From  the  motion  it  is  fairh^  to  be  inferred  that  no 
credit  was  given  to  Van  Zandt  b}-  the  defendant ;  but  by  Northam,  his 
bar-keeper,  only,  without  the  knowledge  or  consent  of  Morse,  and 
against  his  express  directions.  In  the  performance  of  this  act,  Nor- 
tham  was  not  the  defendant's  agent.  He  was  not  authorized  to  give 
the  credit,  either  expresslj'  or  in  the  usual  course  of  his  business  ;  but 
was  prohibited  from  doing  it.  Notwithstanding  this,  which  the  coui-t 
below  impliedh"  admitted,  the  jui'3'  were  charged  that  if  the  defendant 
subsequent!}-  assented  to  the  acts  of  Northam  he  ratified  them  and 
made  them  his  own.  This  was  an  unquestionable  error.  In  the  law  of 
contracts,  a  posterior  recognition,  in  many  cases,  is  equivalent  to  a 
precydp"^  /■■nmmonri  ;  ]^]^|^^  jt  is  not  fJQ  in  rpspppf:  of  primpc;  The  dCr 
fendant  i.s  xes^xmsible  for  his  o\>-n  ^('.ts,  and  fnr  rhp  nrts  of  others  done. 
bv  his  express  or  implied  command,  but  to  crimes  tke_maxim  Omnis 
ratihabitio  retrotrahitur  et  mandato  equiparatur  is  inapplicable. 

In  cases  admitting  of  accessories,  a  subsequent  assent  merel}'  would 
not  render  a  person  an  accessory.  Jxidgmerd  to  be  reversed. 


STATE  V.    MOORE. 

Superior  Court  of  Judicature  of  New  Hampshire.     1841. 

[Reported  12  \eic  Hampshire,  42.] 

Ikdictmen't  for  breaking  and  entering  the  house  of  I>aac  Paddleford. 
at  Lyman,  in  the  night  time,  on  the  19th  day  of  November,  18-40,  with 
intent  to  steal,  and  stealing  therefrom  certain  pieces  of  money. 

It  appeared  in  evidence  that  the  prisoner  went  to  the  house,  which 
is  a  pubhc  house,  and  asked  for,  and  obtained  lodging  for  the  night, 
and  that  he  took  the  money  from  a  box  in  a  desk  in  the  bar-room,  in 
the  course  of  the  night. 

The  jury  were  instructed  that  upon  this  indictment  the  prisoner 
might  be  convicted  of  burglary,  of  entering  in  the  night  time  and  steal- 
ing, or  of  larceny- ;  that  if  the  door  of  the  bar-room  were  shut,  and  the 
prisoner  left  his  own  room  in  the  night  time,  and  opened  the  door  of 
the  bar-room,  or  any  other  door  in  his  way  thereto,  except  his  own 
door,  and  stole  the  mone^-,  he  was  guilt}-  of  burglary  ;  but  that  if  he 
left  his  own  room  in  the  night,  and  stole  the  money  from  the  bar-room, 

1  Only  so  much  of  the  case  as  relates  to  this  point  is  given.  —  Ed. 


S£CT.  I.]  STATE    V.    MOOKE.  159 

without  opening  any  door  on  his  way  thereto,  except  his  own  door,  he 
was  guilty  of  entering  in  the  night  time  and  stealing. 
Vhe  jury  found  the  prisoner  guilty  of  entering  in  the  night  time  and 

stealing. 

The  counsel  for  the  prisoner  contended  that  under  this  indictment 
the  prisoner  could   not  be  convicted  of  the  offence  of  which  he  was 

found  guiltv. 

He  also  contended  that  the  prisoner,  being  a  guest,  and  having 
entered  the  house  with  the  assent  of  the  owner,  if  guilty  at  all  upon 
this  evidence,  was  guilty  of  larceny  only  ;  and  he  moved  to  set  aside 
the  verdict,  and  for  a  new  trial,  for  the  reasons  aforesaid. 

Gove,  Attorney-General,  for  the  State. 

Goodall,  for  the  prisoner. 

Gilchrist,  J.^  It  is  said  that,  as  the  prisoner  was  lawfully  in  the 
house,  he  cannot  be  convicted  of  the  offence  of  entering  in  the  night 
time  with  intent  to  steal. 

It  is  clear  that  the  prisoner  had  a  legal  authority  to  enter  the  house, 
without  any  special  permission  for  that  purpose  from  the  owner  or 
landlord.  If  an  innkeeper,  or  other  victualler,  hangs  out  a  sign,  and 
opens  his  house  for  travellers,  it  is  an  implied  engagement  to  entertain 
all  persons  who  travel  that  way  ;  and  upon  this  universal  assumpsit  an 
action  on  the  case  will  lie  against  him  for  damages,  if  he,  without  good 
reason,  refuses  to  admit  a  traveller.  3  Bl.  Com.  166.  And  an  indict- 
ment at  common  law  lies  against  an  innkeeper  if  he  refuses  to  receive 
a  guest,  he  having  at  that  time  room  in  his  house.  If  the  traveller 
conducts  properly,  he  is  bound  to  receive  him,  at  whatever  hour  of  the 
night  he  may  arrive.     Rex  v.  Ivens,  7  C.  &  P.  213. 

An  innkeeper,  holding  out  his  inn  '•  as  a  place  of  accommodation 
for  travellers,  cannot  prohibit  persons  who  come  under  that  character, 
in  a  proper  manner,  and  at  suitable  times,  from  entering,  so  long  as 
he  has  the  means  of  accommodation  for  them."  Markham  v.  Brown, 
8  N.  H.  Rep.  528.  As  he  has  authority  to  enter  the  house,  so  he  may 
enter  any  of  the  common  public  rooms.  Markham  v.  Brown.  The 
bar-room  of  an  inn  is,  from  universal  custom,  the  most  public  room  in 
the  house ;  and  whether  a  traveller  may.  without  permission,  enter 
any  of  the  private  rooms  or  not.  he  has  clearly  a  right  to  enter  the 
bar-room. 

If,  after  having  made  an  entry  into  the  house  by  authority  of  law.  he 
commit  a  trespass,  he  may  be  held  civilly  responsible  as  a  trespasser 
ab  initio.  This  principle  has  always  been  recognized  since  the  decision 
of  The  Six  Carpenters'  Case,  8  Coke.  290. 

The  prisoner,  therefore,  had  a  right  to  enter  the  inn.  and  the  bar- 
room ;  and  the  question  arises,  whether  the  larceny  committed  in  the 
bar-room  can  relate  back,  and  give  a  character  to  the  entry  into  the 
house,  so  as  to  make  it  criminal,  and  the  prisoner  punishable  for  it. 

1  Part  only  of  the  opinion  is  given. 


1(30  STATE    V.    MOORE.  [CHAP.  III. 

upon  reasoning  similar  to  that  which,  in  a  civil  action,  would  render 
him  liable  as  a  trespasser  ab  initio.  Except  the  inference  that  may 
lawfully  be  made  from  the  act  of  larceny,  theve  is  no  evidence  that  he 
entered  with  any  illegal  purpose,  or  a  felonious  intent. 

Where  the  law  invests  a  person  with  authority  to  do  an  act,  the  con- 
sequences of  an  abuse  of  that  authority  by  the  party  should  be  severe 
enough  to  deter  all  persons  from  such  an  abuse.  But  has  this  "  policy 
of  the  law  "  ever  been  extended  to  criminal  cases  ?  We  are  not  aware 
that  it  has.  It  is  true  that,  in  order  to  ascertain  the  intent  of  the 
accused,  the  law  often  regards  the  nature  of  the  act  committed.  But 
this  is  generally  such  an  act  as  could  not  have  been  committed  with 
any  other  than  a  criminal  purpose.  Thus,  the  act  of  secretly  taking 
the  property  of  another,  necessarily  raises  the  presumption  that  the 
party  intended  to  steal,  and  this  presumption  stands  until  explained 
by  other  evidence.  In  an  indictment  for  breaking,  etc.,  with  intent  to 
commit  a  felony,  the  actual  commission  is  so  strong  a  presumptive 
evidence  that  the  law  has  adopted  it,  and  admits  it  to  be  equivalent  to 
a  charge  of  the  intent  in  the  indictment.  But  where  one  lawfully 
enters  a  house,  it  by  no  means  follows  that  because  he  steals,  while 
there,  he  entered  with  that  purpose.  The  act  of  stealing  is  evidence 
of  the  intent  to  steal ;  but  is  hardly  sufficient  to  rebut  the  presumption 
that  where  he  lawfully  entered,  he  entered  for  a  lawful  purpose.  To 
hold  that,  for  a  lawful  entry,  a  party  could  be  punished,  because,  after 
such  entry,  he  does  an  unlawful  act,  would  be  to  find  him  guilty  of  a 
crime  by  construction  ;  a  result  which  the  law,  in  its  endeavors  always 
to  ascertain  the  real  intention  of  the  accused,  invariably,  in  theory, 
avoids,  and  which  has  seldom,  in  modern  times,  happened  in  practice. 

A  case  is  put  by  Lord  Hale,  the  reasoning  of  which  is  analogous  to 
that  we  have  used  in  this  case.  "  It  is  not  a  burglarious  breaking  and 
entry,  if  a  guest  at  an  inn  open  his  own  chamber  door,  and  takes  and 
carries  away  his  host's  goods, /o?-  he  has  a  right  to  open  his  oion  door, 
and  so  not  a  burglarious  breaking."     1  Hale  P.  C.  553,  554. 

If  a  burglary  could  not  be  committed  because  the  party  had  a  right 
to  open  his  own  door,  notwithstanding  the  subsequent  larceny,  the 
same  principle  would  seem  to  be  applicable  here,  where  the  prisoner 
had  a  right  to  enter  the  house,  and  where,  by  parity  of  reasoning, 
his  subsequent  larceny  would  not  make  his  original  entry  unlawful. 

For  these  reasons,  the  judgment  of  the  court  is  that  the  verdict  be 
set  aside  and  a 

New  trial  granted. 


gECT.  1.1  STATE    V.    ASIIER.  161 

STATE  V.  ASHER; 
Supreme  Court  of  Arkansas.    1887. 

[Reported  50  Arkansas,  427.] 

At  the  May  terirf,  1887,  of  the  Phillips  Circuit  Court,  appellees  were 
indicted  for  a  violation  of  section  164.3  of  Mansfield's  Digest,  —  i.  e., 
obtaining  money  under  false  pretences  ;  Asher  as  principal  and  Fitz- 
patrick  as  accessory.  It  is  charged  in  the  indictment  that  on  the  17th 
April,  1885,  Asher'  applied  to  one  J.  P.  Moore  to  purchase  six  mules  ; 
that  he  represented  himself  afe  being  the  absolute  owner  of  the  east  half 
of  lot  2.31,  in  the  city  of  Helena;  that  it  was  free  from  incumbrance  ; 
that  he  could  give  a  first  lien  on  same  ;  that  he  produced  a  deed  of  con- 
veyance from  L.  A.  Fitzpatrick,  reciting  the  full  payment  of  the  pur- 
chase-money, and  offered  to  secure  the  payment  of  the  purchase-money 
of  the  mules  by  creating  a  first  lien  on  said  lot;  that  Moore  sold  him 
the  mules  on  a  credit  to  expire  Nov.  1,  188.3,  and  took  a  deed  of  trust 
on  the  lot  to  secure  the  purchase-money  of  the  mules ;  that  the  deed  of 
trust  was  executed  by  Asher  on  the  17th,  and  was  filed  for  record  on 
the  18th,  day  of  April,  188.3  ;  that  the  sale  of  the  mules  was  made  on 
the  faith  of  the  security  afforded  by  a  first  lien  on  the  east  half  of  said 
lot. 

It  is  further  charged  that  at  the  time  Asher  made  these  representa- 
tions he  had  already  executed  to  said  Fitzpatrick  a  deed  of  trust  upon 
said  east  half  of  said  lot,  to  secure  the  purchase-money  of  same,  which 
was  more  than  the  value  of  the  lot ;  that  said  lot  was  not  free  from 
incumbrance  ;  and  that  Asher  falsely  made  the  representation  that  he 
could  give  a  first  lien  on  said  half-lot  to  deprive  Moore  of  his  property  ; 
that  Fitzpatrick's  deed  of  trust  was  filed  for  record  on  the  17th  day  of 
April,  1885.     Fitzpatrick  is  indicted  jointly  with  him  as  accessory. 

At  the  November  term,  1887,  of  the  court,  the  defendant  demurred 
to  the  indictment;  the  demurrer  was  sustained,  and  the  State  appeals. 

CocKRiLL,  C.  J.  (after  stating  the  facts  as  above  set  forth).  To  con- 
stitute an  offence  within  the  meaning  of  section  1645,  Mansfield's  Digest, 
something  of  value  must  be  obtained  by  means  of  a  false  pretence  with 
the  intent  to  defraud.  To  obtain  goods  with  the  intent  to  defraud  is 
not  enough.     It  must  be  accomplished  bj-  a  false  pretence. 

By  the  terms  of  the  statute  the  pretence  must  be  false.  And  the  doc- 
trine undoubtedly  is,  that  if  it  is  not  false,  though  believed  to  be  so  by 
the  person  employing  it,  it  is  insufficient.  2  Bish.  Cr.  Law,  s.  417.  The 
false  pretence  charged  in  this  case  is  Asher's  representation  that  the 
mortgage,  upon  the  security  of  which  he  got  the  mnles  from  Moore, 
was  ttie  first  lien  on  the  land.  If  the  representation  is  true,  there  is  no 
foundation  for  this  prosecution,  however  reprehensible  Asher's  motive 
may  have  been,  because  the  false  pretence  would  not  be  established. 

Now,  construing  all  the  allegations  of  the  indictment  together,  is  it  shown 

11 


162 


KEGINA   V.   FRETWELL. 


[chap.  III. 


1 


that  the  representation  was  false  ?  It  is  charged  that  Asher  had  previ- 
ously- executed  a  mortgage  to  his  co-defendant,  Fitzpatrick,  for  the  full 
value  of  the  laud  and  that  it  was  the  prior  Hen  ;  but  it  is  also  charged 
that  Fitzpatrick  counselled  Asher  to  make  the  representation  that  the 
land  was  free  from  incumbrance  and  aided  him  in  obtaining  the  mules 
from  Moore  on  the  faith  of  it.  The  demurrer  admits  that  these  allega- 
tions are  true.  Beiug  true,  the  legal  conclusion  is  that  Fitzpatrick 
waived  the  priority  of  his  lien  and  is  estopped  from  asserting  it  against 
Moore.  Scott  v.  Orbison,  21  Ark.  202  ;  Gill  v.  Hardin,  48  Ark.  412  ; 
Shields  v.  Smith,  37  Id.  47. 

'  Asher's  representation  that  Moore's  mortgage  was  the  prior  lien  was 
therefore  true.  Moore  got  just  what  he  bargained  for,  according  to  the 
allegations  of  the  indictment,  and  he  has  not,  therefore,  been  injured  in 
any  way.  The  statutory  offence  has  not  been  committed.  Morgan 
V.  State,  42  Ark.  131.  It  is  not,  as  counsel  for  the  State  argues,  an 
attempt  to  have  an  offence  condoned  b\-  repairing  the  injury  done  in  its 
commission.    There  has  been  no  criminal  offence. 

Moore  might  have  been  injured  by  the  transaction  if  Fitzpatrick's 
mortgage-note  had  been  negotiated  according  to  the  law  merchant  and 
assigned  to  an  innocent  holder  for  value  before  maturity.  ■  But  there  is 
no  allegation  of  the  existence  of  either  of  these  facts,  and  there  is  no 
presumption  that  that  state  of  facts  exists.  People  v.  Stone,  11  Wheat. 
182-190. 

Affirm.^ 


REGINA  V.  FRETWELL. 


if 

i 


Crown  Case  Reserved.     1862. 
[Reported  Leigh  ^'  Cave,  161.] 

Erle,  C.  J.^  The  prisoner  in  this  case  was  convicted  of  murder  ;  and 
the  question  for  us  is  wliether,  upon  the  facts  stated,  he  was  properly 
convicted.  The  deceased,  Elizabeth  Bradley,  was  pregnant,  and,  for 
the  purpose  of  producing  abortion,  took  a  dose  of  corrosive  sublimate, 
which  had  been  procured  for  her  by  the  prisoner  with  a  full  knowledge 
of  the  purpose  to  which  it  was  to  be  applied.  In  procuring  the  poison 
the  prisoner  had  acted  at  the  instigation  of  the  deceased,  and  under 
the  influence  of  threats  by  her  of  self-destruction  if  the  means  of  pro- 
curing abortion  were  not  supplied  to  her.  Then  the  case  sets  out  the 
reasons  wliich  caused  the  woman  to  be  so  desirous  of  preventing  her 
state  becoming  known.  The  jury  expressly  negatived  the  fact  of  the 
prisoner  having  administered  the  poison  to"^the  deceased,  or  caused  it 
to  be  taken  by  her ;  but  they  found  that  he  had  delivered  it  to  her  with 
a  knowledge  of  the  purpose  to  which  she  intended  to  apply  it,  and  that 
1  See  Com.  v.  Joslin,  158  Mass.  482,  493.  —  Ed. 
«  The  opinions  only  are  given ;  they  sufficiently  state  the  case.  —  Ed. 


SECT.  I.]  .  KEGIXA   V.   FRETWELL.  163 

he  was  therefore  accessor}-  before  the  fact  to  her  taking  poison  for  the 
purpose  of  procuring  abortion.  Chief  Justice  Cockburn  thereupon, 
on  the  authority  of  Russell's  Case,  directed  the  jury  to  return  a  verdict 
of  wilful  murder  against  the  prisoner,  and  reserved  the  case  for  the 
consideration  of  this  Court.  Now,  upon  the  facts  stated,  the  present 
case  appears  to  me  to  differ  materially  from  that  of  Eex  v.  Russell. 
There  the  prisoner,  finding  the  woman  to  be  pregnant,  of  his  own 
motion  procured  arsenic,  gave  it  to  the  woman,  and  instigated  and  per- 
suaded her  to  take  it,  for  the  purpose  of  procuring  a  miscarriage ;  and 
the  woman  took  it  knowingly,  with  the  like  intent  of  procuring  a  mis- 
carriage, and  thereby  caused  her  own  death.  The  Judges  held  that  it 
was  a  misdemeanor  in  her  to  take  arsenic  for  the  purpose  of  procuring 
abortion  ;  that,  having  thereb}'  caused  her  own  death,  she  was  felo  de 
se  ;  and  that  the  prisoner  was  an  accessory  before  the  fact  to  the 
murder.  Now,  there  appears  to  me  to  be  a  ver}^  marked  distinction 
between  the  conduct  of  the  prisoner,  Fretwell,  in  this  case,  and  the  con- 
duct of  the  prisoner,  Russell,  in  the  case  I  have  alread}'  referred  to. 
In  the  latter  case,  Russell  instigated  and  persuaded  the  woman  to  take 
the  arsenic.  In  the  present  case,  the  prisoner  was  unwilling  that  tlie 
woman  should  take  the  poison.  He  procured  it  for  her  at  her  instiga- 
tion, and  under  a  threat  b}'  her  of  self-destruction.  He  did  not  admin- 
ister it  to  her,  or  cause  her  to  take  it,  and  the  facts  of  the  case  are 
quite  consistent  with  the  supposition  that  he  hoped  and  expected  that 
she  would  change  her  mind  and  would  not  resort  to  it.  Then,  the  cases 
being  distinguishable,  it  is  unnecessarv  to  decide  whether  in  this  case 
the  woman  was  felo  de  se.  I  am  the  more  fortified  in  my  opinion  b\^ 
looking  at  the  late  statute  for  consolidating  and  amending  the  law 
relating  to  offences  against  the  person.  By  sect.  58  of  that  statute, 
an\'  woman  administering  poison  to  herself  with  intent  to  procure  mis- 
carriage, and  any  person  administering  it  to  her  or  causing  it  to  be 
taken  by  her  with  the  like  intent,  is  guilty  of  felon}'.  By  sect.  59,  any 
one  supplying  or  procuring  any  poison,  knowing  that  the  same  is 
intended  to  be  used  with  intent  to  procure  miscarriage,  is  guilty  of  a 
misdemeanor.  Tlie  crime,  therefore,  of  procuring  or  supphiug  the 
poison  is  one  of  a  totally  different  character  from  that  of  administering 
it,  or  causing  it  to  be  taken.     M}'  opinion  is,  that  the  prisoner  was  not 

.guilty  of  murder,  and  that  the  conviction  must  be  quashed. 

I     Martin,  B.     I  am  of  the  same  opinion.     The  acts  of  the  prisoner 

[were  too  remote  from  the  death  of  the  woman  to  make  him  guilty  of 

I  murder. 

Channell,  B.  I  am  of  the  same  opinion  with  the  Lord  Chief  Justice, 
and  for  the  reasons  which  he  has  given. 

Blackburn,  J.  I  am  of  the  same  opinion.  According  to  the  finding 
of  the  jur}',  the  prisoner  neither  administered  the  poison  nor  caused  it 
to  be  taken  by  the  woman,  and  therefore  was  not  a  party  to  what  took 
place  in  such  a  way  as  to  make  what  he  did  amount  to  murder. 

Keating,  J.     I  am  of  the  same  opinion.  Conviction  quashed. 


1C4 


KEX   V.   SQUIRE.  [CHAP.  III. 


^ 


SECTION   II. 

Omission  as  an  Act. 

107 

MEMORANDUM. 

Common  Bench.     1368. 
[Reported  Y.  B.  43  Edw.  3,  33,  pi  38.] 

Thorpe,  J.,  said  that  he  had  seen  that  one  M.  was  indicted  for  that 
he  had  undertaken  a  man  for  a  malady  and  that  he  killed  the  man  by 
default  of  care. 

""•^ 

J 

J 

J  Stafford  Assizes.     1799. 

d 


REX  V.  SQUIRE. 


>5''3  [Reported  1  Russ.  Cr.  ^  M.  24.] 

Charles  Squire  and  his  wife  were  indicted  for  the  murder  of  a  hoy 
who  was  bound  as  a  parish  apprentice  to  the  prisoner  Charles;  and  it 
~,       ;;  ai)peared  in  evidence  that  both  the  prisoners  had  used  the  apprentice 

j       ^  in  a  most  cruel  and  barbarous  manner,  and  that  the  wife  had  occasion- 

^        V  ally  committed  the  cruelties  in  the  absence  of  the  husband.     But  the 

^       "3  surgeon  who  opened  the  body  deposed  that  in  his  judgment  the  boy 

yf     ^  died  from  debility  and  want  of  proper  food  and  nourishment,  and  not 

from  the  wounds,  etc.;  which  he  had  received.     Upon  which 

J      "V^^  Lawrence,  J.,  directed  the  jury  that  as  the  wife  was  the  servant  of 

J  the  husband  it  was  not  her  duty  to  provide  the  apprentice  with  suffi- 

Y      ^  cient  food  and  nourishment,  and  that  she  was  not  guilty  of  any  breach 

^-j    J  of  duty  in  neglecting  to  do  so  ;  though,  if  the  husband  had  allowed  her 

sufficient  food  for  the  apprentice  and  she  hacT  wilfully  withholden  it  from 

him,  then  she  would  have  been  guilty.     But  that  here  the   fact  was 

otherwise  ;    and  therefore,   though  in  foro  conscie^Uice  the  wife   was 

equally  guilty  with  her  husband,  yet  in  point  of  law  she  could  not  be 

said  to  be  guilty  of  not  providing  the  apprentice  with  sufficient  food 

and  nourishment. 


SECT.  II.]  REX   V.   FRIEND.  165 


;o9 

REX  V.   FRIEND. 

Crown  Case  Reserved.     1802. 

[Reported  Russell  4-  Ri/an,  20.] 

The  prisoners  were  tried  before  Mr.  Justice  Le  Blanc  at  the  Exeter 
summer  assizes  in  the  year  1801,  on  an  indictment  for  a  misdemeanor, 
which  charged  that  they  did  take  and  receive  one  Sarah  Quill  into  the 
dwelling-house  of  the  prisoner,  John  Friend,  as  an  apprentice  of  the 
said  John  Friend,  to  be  by  him  treated,  maintained,  and  supported  as 
an  apprentice  of  him  the  said  John  Friend,  and  did,  for  a  long  time, 
have  and  keep  her  in  the  said  house  as  such  apprentice  as  aforesaid  ; 
and  that  during  the  said  time  they  so  had  and  kept  her  in  the  said 
house  as  such  apprentice,  the  said  prisoners,  and  each  of  them,  did, 
with  force  and  arms,  unlawfully  and  injuriously,  and  without  the  con- 
sent of  the  said  Sarah  Quill,  and  against  her  will,  neglect  and  refuse 
to  find  and  provide  for  and  to  give  and  administer  to  her,  being  so 
had  and  kept  as  such  apprentice  as  aforesaid,  sufficient  meat,  drink, 
victuals,  wearing  apparel,  bedding,  and  other  necessaries  proper  and 
requisite  for  the  sustenance,  support,  maintenance,  clothing,  covering, 
and  restuig  the  body  of  the  said  Sarah  Quill ;  by  means  whereof  she 
became  emaciated  and  almost  starved  to  death,  and  the  constitution 
and  frame  of  her  body  greatly  hurt  and  impaired,   &c. 

It  was  proved  that  Sarah  Quill,  a  girl  of  thirteen  or  fourteen  years 
of  age,  went  to  live  with  Friend  as  an  apprentice,  and  continued  with 
him  about  a  year.^  It  was  objected,  on  behalf  of  the  prisoners,  that 
the  evidence  was  not  sufficient  to  prove  the  relation  of  master  and 
apprentice,  so  as  to  create  the  legal  obligation  on  the  master  to  pro- 
vide for  the  apprentice  sufficient  meat,  clothing,  &c.,  a  breach  of 
which  would  subject  him  to  a  criminal  prosecution. 

The  learned  judge  permitted  the  prosecution  to  proceed,  as  the 
indictment  was  in  other  respects  fully  supported  by  the  evidence.  The 
jury  found  John  Friend  guilty,  but  acquitted  Anne,  his  wife.  The 
learned  judge  thought  it  best  to  pass  sentence  of  imprisonment  on  the 
prisoner ;  that  in  case  the  judges  should  be  of  opinion  that  the  above 
evidence  did  not  support  the  indictment,  a  pardon  might  be  obtained. 

At  a  meeting  of  all  the  judges  at  Lord  Kenyon's  chambers  on  the 
first  day  of  Michaelmas  term,  1801,  this  case  was  ordered  to  stand 
over  for  further  consideration  to  the  first  day  of  the  next  Hilary 
term  ;  on  that  day  it  was  further  adjourned  ;  and  after  Hilary  term, 
viz.  on  the  2oth  of  February,  1802,  was  considered  at  a  meeting  of  all 
the  judges  (except  Lord  Kenyon  and  Mr.  Justice  Rooke).  The  gen- 
eral opinion  was,  that  it  was  an  indictable  offence,  as  a  misdemeanor, 

1  The  statement  of  facts  has  beeu  abridged.  —  Ed. 


^^ 


166'      '^'f  "^    "^"^EmNA    ..   LO^VE:  [CHAP.  HI. 

to  refuse  or  neglect  to  provide  sufficient  food,  bedding,  &c.,  to  any 
infant  of  tender  years  unable  to  provide  for  and  take  care  of  itself 
(whether  such  infant  were  child,  apprentice,  or  servant),  whom  a  man 
was  obliged  by  duty  or  contract  to  provide  for,  so  as  thereby  to 
injure  its  health;  but  that,  in  the  present  case,  the  indictment  was 
defective  in  not  stating  the  child  to  be  of  tender  years  and  unable  to 
provide  for  itself.  However,  as  in  the  present  case,  the  objection 
was  taken  to  the  evidence  not  supporting  the  indictment,  rather  than 
to  the  indictment  itself  ;  and  there  being  some  difference  of  opmion,  all 
the  indues  thought  it  right  that  the  final  decision  should  be  adjourned, 
and  that  the  prisoner  should  suffer  the  whole  of  his  imprisonment. 

Mr.  Justice  Chambre  thought  that  it  was  not  in  any  manner  an 
indictable  offence,  being  founded  wholly  on  contract. 


REGINA  V.   LOWE. 
"Worcestershire  Assizes.     1850. 

[Reported  3  Carrington  Sj-  Kirwan,  123.] 

Manslaughter.  —  The  prisoner  was  indicted  for  the  manslaughter 
of  Thomas  Tibbitts. 

It  appeared  that  he  was  an  engineer,  and  that  his  duty  was  to  man- 
age a  steam-engine  employed  for  the  purpose  of  drawing  up  miners 
from  a  coal  pit ;  and  wiien  the  skip  containing  the  men  arrived  on  a 
level  with  the  pit's  mouth,  his  duty  was  to  stop  the  revolution  of 
the  windlass,  so  that  the  men  might  get  out.  He  was  the  only  man  so 
employed  on  the  premises.  On  the  day  in  question  he  deserted  his 
post,  leaving  the  engine  in  charge  of  an  ignorant  boy,  who,  before  the 
prisoner  went  away,  declared  himself  to  the  prisoner  to  be  utterly 
incompetent  to  manage  such  a  steam-engine  as  the  one  intrusted  to 
him.  The  prisoner  neglected  this  warning,  and  threatened  the  boy,  in 
case  he  refused  to  do  as  he  was  ordered.  The  boy  superintended  the 
raising  of  two  skips  from  the  pit  with  success,  but  on  the  arrival  at  the 
pit's  mouth  of  a  third,  containing  four  men,  he  was  unable  to  stop 
the  engine,  and  the  skip  being  drawn  over  the  pulley,  the  deceased, 
who  w^as  one  of  the  men,  was  thrown  down  into  the  shaft  of  the  pit 
and  killed  on  the  spot. 

It  appeared  that  the  engine  could  not  be  stopped  "  in  consequence 
of  the  slipper  being  too  low,"  an  error  which  it  was  proved  that  any 
competent  engineer  could  have  rectified,  but  which  the  boy  in  charge 
of  the  engine  could  not. 

Hucldleston,  for  the  prisoner,  contended  that  a  mere  omission  or 
neglect  of  duty  could  not  render  a  man  guilty  of  manslaughter,  and 


SECT.  II.]  'i^EGIN'A   V.   SMITH.  167 

he  cited  the  cases  of  Rex  v.  Green,  7  C.  &  P.  156,  and  Rex  v.  Allen, 
7  C.  &  P,  153. 

Lord  Campbell,  C.  J.  I  am  clearly  of  opinion  that  a  man  may, 
by  a  neglect  of  diitj',  render  himself  liable  to  be  convicted  of  man- 
slaughter, or  even  of  murder.  Verdict  guilty. 


I  I  I 
REGIXA  V.  CONDE. 
Central  Criminal  Court.     1867. 

[Reported  10  Cox  C.  C.  547.] 

John  George  Conde  and  Mary  Conde  were  indicted  for  and 
charged,  upon  the  coroner's  inquisition,  with  the  wilful  murder  oi 
William  Conde. ^ 

George  Charles  Kernott,  licentiate  of  the  Apothecaries'  Compan}', 
proved  that  the  deceased  died  from  starvation  ;  death,  no  doubt,  having 
been  accelerated  by  beatings. 

Channell,  B.,  in  summing  up  the  case  to  the  jury  directed  them 
as  follows  :  If  the  i)risoners  or  either  of  tliem  wilfully  withheld  neces- 
sary food  from  the  deceased,  with  a  wilful  determination,  by  withhold- 
ing sustenance  wliich  was  requisite,  to  cause  his  death,  then  the  party 
so  witliholding  such  food  is  guilty  of  murder.  If,  however,  the  prison- 
ers had  the  means  to  supply  necessaries,  the  want  of  which  had  led  to 
the  death  of  the  deceased,  and  having  the  means  to  supply  such  neces- 
saries, negligently  though  not  wilfully  withheld  food  which  if  admin- 
istered would  have  sustained  life,  and  so  caused  the  death  of  the 
deceased,  then  that  would  amount  to  the  crime  of  manslaughter  in 
the  person  so  withholding  the  food. 

M((ry  Conde  guilty  of  manslaughter. 
John  George  Conde  not  guilty. 


(1^  . 

REGINA  V.  SMITH. 

Carlisle  Assizes.     1869, 

[Reported  11  Cox  C.  C.  210.] 

Thomas  Smith  was  indicted  for  the  manslaughter  of  Richard  Gibson, 
at  Dearham,  on  the  8th  of  Februarj-,  1869,  under  the  following  circum- 
stances : 

1  Most  of  the  evidence  presented  in  this  case  has  been  omitted. 


163  REGINA   V.   WHITE.  [CHAP.  III. 

The  prisoner  was  employed  by  a  Mr.  Harrison,  an  extensive  colliery 
proprietor  near  DearUam,  and  wlio  was  also  the  owner  of  a  tramway 
which  crossed  the  Maryport  and  Carlisle  turnpike  road.  It  was  tlie 
prisoner's  duty  to  give  warning  to  any  persons  when  any  trucks  might 
cross  the  said  road.  The  tramway  was  in  existence  before  the  road, 
and  in  the  act  by  whicli  tlie  road  was  made  there  was  no  clause  impos- 
ing on  Mr.  Harrison  the  duty  of  placing  a  watchman  where  tlie 
tramway  crossed  the  road.  On  the  8th  of  February,  1869,  the  deceased 
was  crossing  the  tramway,  having  received  no  warning  tliat  any  trucks 
were  about  to  cross  the  road.  As  he  was  crossing,  however,  he  was 
knocked  down  by  some  trucks  and  was  killed.  On  inquiry  it  appeared 
that  the  prisoner  was  absent  from  his  post  at  that  time,  although  he 
had  strict  orders  never  to  be  absent. 

Camjybell  Foster,  for  the  prisoner,  contended  that,  it  being  an 
act  of  omission  such  omission  ought  to  have  been  stated  in  the 
indictment. 

The  learned  judge  [Lush,  J.]  held  that  under  the  words  "  did 
feloniously  kill  and  slay  "  it  was  unnecessary  to  state  in  the  indict- 
ment that  it  was  an  act  of  omission  on  the  part  of  the  prisoner  which 
caused  the  death  of  the  deceased. 

Ccimphell  Foster  then  contended  that  the  facts  of  the  case  disclosed 
no  duty  between  the  prisoner  and  the  public. 

lu  this  the  learned  judge  concurred,  saying  that,  there  being  no 
clause  in  the  act  compelling  Mr.  Harrison  to  place  a  watchman  where 
the  tramway  crossed  the  road,  the  prisoner  was  merely  the  private  ser- 
vant of  Mr.  Harrison  ;  and  that  consequently  his  negligence  did  not 
constitute  such  a  breach  of  duty  as  to  make  him  guilty  of  manslaughter. 

Prisoner  discharged. 


REGINA  V.  WHITE. 

Court  for  Crown  Cases  Reserved.     1871. 

[Reported  L.  R.  1  C.  C.  311.] 

Case  stated  by  the  Chairman  of  the  Hants  Quarter  Sessions. 

Indictment  under  24  &  25  Vict.  c.  100,  s.  27  (1),  for  unlawfully  and 
wilfuU}'  abandoning  and  exposing  a  child  under  the  age  of  two  years, 
whereby  the  life  of  the  child  was  endangered. 

At  the  trial  at  Winchester,  it  appeared  from  the  evidence  that  Emily 
White  (the  wife  of  William  White),  who  was  not  included  in  the  indict- 
ment, was  the  mother  of  the  child,  which  was  about  nine  months  old  at 
the  time  mentioned  in  the  indictment.  On  the  19th  of  October,  1870, 
she  had  an  interview  with  her  husband,  from  whom  she  had  been  living 
apart  since  the  11th  of  August  of  the  same  year,  and  asked  him  if  he 
intended  to  give  her  money  or  victuals  ;  he  passed  by  her  without  an- 


SECT.  II.]  REGINA    V.    WHITE.  169 

swering,  and  went  into  his  house  ;  this  was  about  7  p.  m.  His  mother, 
the  prisoner,  Maria  White,  shut  the  wicket  of  the  garden,  and  forbade 
his  wife  from  coming  in  ;  the  wife  then  went  to  the  door  of  the  house, 
laid  the  child  down  close  to  the  door,  and  called  out,  "  Bill,  here  's  your 
child,  I  can't  keep  it  —  I  am  gone."  She  left,  and  was  seen  no  more 
that  night.  Shortly  after,  William  White  came  out  of  the  house, 
stepped  over  the  child,  and  went  away.  About  8.30  p.  m.  two  wit- 
nesses found  the  child  lying  in  the  road,  outside  of  the  wicket  of  the 
garden,  which  was  a  few  yards  from  the  house-door;  it  was  dressed  in 
short  clothes,  with  nothing  on  its  head ;  they  remained  at  the  spot  till 
about  10  p.  M.,  when  William  White  came  home.  They  told  him  that 
his  child  was  lying  in  the  road;  his  answer  was,  "  It  must  bide  there 
for  what  he  knew,  and  then  the  mother  ought  to  be  taken  up  for  the 
murder  of  it."  Another  witness,  Maria  Thorn  (the  mother  of  his  wife), 
deposed  also  to  the  fact  that  at  about  the  same  time,  in  answer  to  her 
observation  that  he  ought  to  take  the  child  in,  he  said,  "  He  should  not 
touch  it  —  those  that  put  it  there  must  come  and  take  it."  She  then 
went  into  the  house.  About  11  p.  m.,  one  of  the  two  witnesses  went 
for  a  police  constable,  and  returned  with  him  to  the  place  about  1  a.  m., 
when  the  child  was  found  lying  on  its  face  in  the  road,  with  its  clothes 
blown  over  its  waist,  and  cold  and  stiff.  The  constable  took  charge  of 
it,  and  bv  his  care  it  was  restored  to  animation.  At  4.30  a.  m.  the  con- 
stable went  to  the  house,  and  asked  William  White  if  he  knew  where 
his  child  was  ;  he  said,  ''No."  On  being  asked  if  he  knew  it  was  in 
the  road,  he  answered,  "Yes."  It  appeared  that,  during  the  time  which 
elapsed  between  William  White  leaving  his  house,  about  7  p.  m.,  and 
his  return,  about  10  p.  m.,  he  had  been  to  the  police  constable  stationed 
at  Beaulieu,  and  told  him  that  there  had  been  a  disturbance  between 
him  and  his  wife,  and  wished  him  to  come  up  and  settle  it,  but  he  did 
not  say  anything  about  the  child. 

The  prisoner's  counsel  objected  that  upon  these  facts  there  was  no 
evidence  of  abandonment  or  exposure,  under  the  Act,  by  William 
White. 

He  also  objected  that  there  was  no  evidence  against  John  White  and 
Maria  White. 

The  Court  were  of  opinion  that  there  was  no  evidence  against  the 
two  last-named  prisoners,  but  overruled  the  objection  as  to  William 
White,  as  to  whom  the  case  was  left  to  the  jury,  who  found  him 
guilty. 

The  question  for  the  Court  was,  whether  the  prisoner,  William  White, 
was  properly  convicted  upon  the  facts  as  above  stated. 

April  29.     No  counsel  appeared.  Cur  adv.  vult. 

May  6.  Bovill,  C.  J.  We  have  considered  this  case,  and  we  are  of 
opinion  that  the  conviction  was  right,  and  ought  to  be  affirmed.  The 
prisoner  was  indicted,  under  24  &  25  Vict.  c.  100,  s.  27,  for  unlawfully 
abandoning  and  exposing  a  child,  under  the  age  of  two  years,  whereby 
its  life  was  endangered.     On  the  facts  stated  in  the  case  the  objection 


170  BEGIN  A   V.   WHITE.  [CHAP.  III. 

was  taken  that  there  was  no  evidence  of  abandonment  or  exposure. 
Now,  the  prisoner  was  the  father  of  the  child,  and  as  such  was  entitled 
to  the  custody  and  control  of  it,  and  was  not  only  morally  but  legally 
bound  to  provide  for  it.  Then  it  appears  that  when  the  child  was  lying 
at  the  door  he  saw  it,  stepped  over  it,  and  left  it  there.  Afterwards, 
when  the  child  was  in  the  road,  he  knew  it  was  there.  I  am  clearly  of 
opinion  that  there  was  evidence  here  upon  which  the  jury  might  and 
ought  to  convict  the  prisoner.  Instead  of  protecting  and  providing  for 
the  child,  as  it  was  his  duty  to  do,  he  allowed  it  to  remain  lying,  first 
at  his  door,  and  afterwards  in  the  road,  insufficiently  clothed,  and  at  a 
time  of  3'ear  when  the  result  was  likely  to  be  the  child's  death.  I  think, 
therefore,  he  was  guilty  both  of  abandonment  and  exposure. 

Martin,  B.  I  am  of  the  same  opinion,  though  I  have  entertained 
some  doubt  upon  the  question.  The  statute  makes  it  an  offence  un- 
lawfully to  abandon  or  expose  a  child,  and,  construing  these  words 
according  to  their  natural  meaning,  I  thought  at  first  that  they  could 
onlv  apply  to  persons  who  had  had  the  actual  custody  and  possession 
of  the  child.  But  as  the  prisoner  here  was  the  father  of  the  child, 
entitled  to  its  custody  and  legally  bound  to  its  protection,  I  do  not 
differ  from  the  rest  of  the  Court. 

Bramwell,  B.  I  am  of  the  same  opinion.  If  the. person  who  had 
had  the  actual  custodj-  of  the  child,  and  who  left  it  at  its  father's  door, 
had  been  a  stranger  with  whom  it  had  been  left  at  nurse,  there-  could, 
I  think,  have  been  no  doubt  about  the  case  ;  and  I  do  not  think  the 
fact  that  it  was  the  mother  makes  any  difference. 

Blackburn,  J.  I  am  of  the  same  opinion.  The  question  turns  upon 
the  meaning  of  the  words  "abandon  or  expose"  in  the  statute.  The 
Court,  before  whom  the  prisoner  was  tried,  were  right  in  directing  the 
acquittal  of  the  two  other  persons  accused,  because  there  was  no  legal 
duty  upon  them  to  protect  the  child,  but  only  a  duty  of  imperfect  obli- 
gation. But  the  father's  case  is  different ;  for  upon  him  there  is  a  strict 
legal  duty  to  protect  the  child.  And  when  the  child  is  left  in  a  position 
of  danger  of  which  he  knows,  and  from  which  he  has  full  j)ower  to 
remove  it,  and  he  neglects  his  duty  of  protection,  and  lets  the  child 
remain  in  danger,  I  think  this  is  an  exposure  and  abandonment  bj-  him. 
If  the  child  had  died,  the  facts  were  such  that  a  jury  might  have  con- 
victed him  of  murder,  though  they  might  have  taken  a  more  merciful 
view,  and  found  him  guilty  only  of  manslaughter;  and  as  the  child, 
though  its  life  was  endangered,  did  not  die,  the  ease  is  within  the 
section. 

Channell,  B.  My  Brother  Byles,  who  was  a  member  of  the  Court 
when  the  case  was  first  before  the  Court,  concurs  in  the  judgment; 
and,  havin^ad  an  opportunity  of  considering  the  case  this  morning, 
I  am  of  thejjme  opinion.  Co7iviction  affirmed. 


'l^^' 


SECT.  II.]  REGINA   V.   DOW.NES.  171 

/  '  - 

REGINA  V.   DOWNES. 
Crown  Case  Reserved.     1875. 

[Reported  13  Cox  C.C.  111.] 

Case  reserved  for  the  opinion  of  this  court  bv  Blackburn,  J.^ 

1.  The  prisoner  was  indicted  at  the  Central  Criminal  Court  for  the 
manslaughter  of  Charles  Downes. 

2.  It  appeared  on  the  trial  before  me  by  the  evidence  that  Charles 
Downes  was  an  infant  who,  at  the  time  of  his  death,  was  a  little  more 
than  two  years  old.  The  child  had  been  ill,  and  wasting  away  for 
eight  or  nine  months  before  its  death.  The  prisoner,  wlio  resided  at 
Woolwich,  was  the  father  of  the  deceased,  and  had  during  the  whole  of 
this  time  the  custody  of  the  child. 

3.  The  prisoner  was  one  of  a  sect  who  call  themselves  "  The  PecuHar 
People." 

4.  During  the  whole  period  of  the  child's  illness  he  did  not  procure 
any  skilled  advice  as  to  the  treatment  of  the  child,  but  left  it  to  the 
charge  of  women  who  belonged  to  his  sect,  and  called  in  at  inter- 
vals George  Hurry,  an  engine  driver,  who  prayed  over  the  child  and 
anointed  it  with  oil. 

5.  The  reason  of  this  course  of  conduct  was  explained  by  George 
Hurrj",  who  was  called  as  a  witness. 

6.  He  stated  that  the  Peculiar  People  never  called  in  medical  advice 
or  gave  medicines'  in  case  of  sickness.  They  had  religious  objections 
to  doing  so.  They  called  in  the  elders  of  the  church,  who  prayed  over 
the  sick  person,  anointing  him  with  oil  in  the  name  of  the  Lord.  This 
he  said  they  did  in  literal  compliance  witK^  the  directions  in  the  Uth 
and  loth  verses  of  the  fifth  chapter  of  the  Epistle  of  St.  James,  and  in 
hope  that  the  cure  would  follow. 

7.  This  course  was  pursued  with  regard  to  the  deceased  infant  during 
its  illness.  The  prisoner  consulted  the  witness  Huny  as  to  what  was 
the  matter  with  the  child,  and  as  to  what  should  be  given  to  it.  They 
thought  it  was  suffering  from  teething  ;  and  he  advised  the  parents  to 
give  it  port  wine,  eggs,  arrowroot,  and  other  articles  of  diet  which  he 
thought  suitable  for  a  child  suffering  from  such  a  complaint,  all  of  which 
were  supplied  accordingly.  There  was  no  evidence  that  this  treatment 
was  mischievous,  and  though  this  was  probably  not  logicalh'  consistent 
with  the  doctrines  of  his  sect  as  described  b}-  him,  I  saw  no  reason  to 
doubt  that  it  was  all  done  in  perfect  sincerit}'. 

10.  It  was  admitted  on  the  part  of  the  prosecution  that  the  child 
was  kindly  treated,  kept  clean,  and  furnished  with  sufficient  food,  and 
nursed  kindly  by  the  mother  and  the  women  of  the  sect. 

1  Part  of  the  statement  of  the  case,  argument  of  counsel,  and  the  opinion  of  Mellor, 
J.,  are  omitted. 


172  EEGINA   V.   DOWNES.  [CHAP.  III. 

11.  Evidence  was  then  given  tliat  the  prisoner  had  sufficient  means 
to  procure  skilled  advice,  which  was  easily  to  be  obtained  at  Woolwich. 
That  neither  he  nor  the  elder  had  any  competent  skill.  The  disease  of 
which  the  child  died  having  nothing  whatever  to  do  with  teething,  but 
being  chronic  inflammation  of  the  lungs  and  pleura,  which  was  of  long 
standing,  and  was  a  disease  which  might  have  been  cured  at  any  time 
if  competent  advice  had  been  obtained,  probably  though  not  certainly, 
would  have  been  so  cured,  if  the  advice  had  been  called  in  in  the  early 
stages  of  the  complaint. 

12.  The  prisoner  in  his  own  defence  said  that  he  sincerely  believed 
that  by  abstaining  from  calling  in  medical  aid  he  gave  the  child  the 
best  chance  of  recovery,  as,  if  he  showed  a  want  of  faith  he  thought  he 
could  not  rely  on  the  promise  which  he  thought  was  given. 

13.  The  prisoner  had  no  counsel. 

15.  I  told  the  jury  that  the  law  casts  on  the  father  who  has  the 
custody  of  a  helpless  infant  a  duty  to  provide  according  to  his  ability 
all  that  is  reasonably  necessary  for  the  child,  including,  if  the  child  is 
so  ill  as  to  require  it,  the  advice  of  persons  reasonably  believed  to  have 
competent  medical  skill,  and  that  if  death  ensues  from  the  neglect  of 
this  duty  it  is  manslaughter  in  the  father  neglecting  the  duty. 

1  told  them  that  I  did  not,  as  at  present  advised,  think  it  any  defence 
that  the  prisoner  sincerely  believe<l  that  he  ought  not  to  provide  such 
advice,  nor  that  he  believed  that  he  was  doing  the  best  for  the  child 
if  he  had  not,  in  fact,  competent  skill  and  knowledge  himself.  After 
explaining  this  more  fully  I  asked  the  jury  four  questions  which  to 
prevent  any  risk  of  mistake,  I  reduced  to  writing  and  handed  to  them. 
They  answered  all  in  the  affirmative. 

16.  The  following  is  a  copy  of  the  writing  I  handed  to  the  jury  and 
their  answers. 

Did  the  prisoner  neglect  to  procure  medical  aid  for  the  helpless 
infant  when  it  was  in  fact  reasonable  so  to  do,  and  he  had  the  ability? 
—  Yes. 

Was  the  death  caused  by  that  neglect?  —  Yes. 

Unless  both  of  these  are  proved  he  is  not  guilty.  If  both  proved 
find  him  guilty,  but  then  sa}'  further, 

Did  the  prisoner  bond  fide,  though  erroneously,  believe  that  medical 
advice  was  not  required  for  the  child?  —  Yes. 

Or  bond  fide  believe  that  it  was  wrong  to  call  in  medical  aid  ?  —  Yes. 

I  thereupon  directed  the  verdict  of  guilty  to  be  entered,  and  admitted 
the  prisoner  to  bail. 

The  question  for  the  opinion  of  this  court  is  whether  the  conviction 
so  obtained  on  this  direction  and  those  findings  should  stand  or  be  set 
aside.  *  Colin  Blackburn. 

No  counsel  was  instructed  to  argue  for  the  prisoner. 

Z>.  Straight,  for  the  prosecution.  The  31  &  32  Vict.  c.  122,  s.  37, 
makes  it  an  offence  for  a  parent  wilfully  to  neglect  to  provide  adequate 
food,  clothing,  medical  aid,  or  lodging  for  a  child  under  fourteen  years 


SECT.  II.]  ■      ri:gina  v.  downes.  173 

of  age  in  his  custody  whereby  the  health  of  the  child  is,  or  has  been,  or 
is  likely  to  be  seriously  injured.  [Mellor,  J.  The  words  of  the  sec- 
tion '•wilfully  neglect"  mean  intentionally  or  purposely  omit  to  call 
in  medical  aid.  Lord  Colekiuge,  C.  J.  In  Keg.  v.  Wagstatfe,  10  Cox 
C.  C.  530,  an  indictment  for  manslaughter  against  parents  of  the  same 
religious  sect  as  the  prisoner  in  this  case  for  neglecting  to  provide 
medical  aid  for  the  child,  who  died  in  consequence  of  such  neglect, 
Willes,  J.,  upon  similar  facts,  seems  to  have  been  of  opinion  that  the 
indictment  could  not  be  sustained,  but  that  was  before  the  31  &  32 
Vict.  c.  122,  s.  37,  passed.  And  in  the  case  of  Reg.  v.  Hines,^  before 
Pigott,  B.,  that  statute  was  not  brought  to  his  attention.] 

Coleridge,  C.  J.  I  think  that  this  conviction  should  be  affirmed. 
For  my  own  part,  but  for  the  statute  31  &  32  Vict.  c.  122,  s.  37, 1  should 
have  much  doubt  about  this  case,  and  should  have  desired  it  to  be  further 
argued  and  considered.  Perhaps  it  is  enough  to  say  that  the  opinions 
of  Willes,  J.,  and  Pigott,  B.,  are  deserving  of  grave  consideration.  The 
statute  31  &  32  Vict.  c.  122,  s.  37,  however,  is  a  strong  argument  in 
favor  of  the  conviction.     By  that  enactment  it  is  made  an  offence  pun- 

1  Reg.  V.  Hines  was  an  indictment  against  Hines  for  unlawfully  emlangeiing  the 
life  of  Lis  child,  aged  two  years,  by  omitting  to  provide  proper  and  sufficient  medicine. 
At  the  opening  of  the  case,  Baron  Pigott  expressed  a  very  strong  opinion  that  it  could 
not  be  sustained.  Mr.  Poland  referred  to  Russell  on  Crimes,  p.  80,  to  the  case  of  Reg. 
f.  Smith,  8  0.  &  P.,  and  to  Reg.  v.  Hurry,  Central  Criminal  Court  Reports,  vol.  76, 
p.  63.  After  hearing  tlie  evidence  in  the  case,  and  Mr.  Poland  in  su])port  of  it,  Pigott, 
B.,  said,  "I  am  of  opinion  that  there  is  no  case  to  go  to  the  jury  of  any  crime  ;  I 
think  it  is  one  of  those  cases  in  which  a  parent,  instead  of  being  guilty  of  anything 
like  culpable  negligence,  has  done  everything  that  he  believed  to  be  necessary  for  the 
good  of  his  child.  Tliat  he  may  be  one  of  those  persons  who  have  very  perverted  views 
and  very  superstitious  views,  and  may  be  altogether  mistaking  that  doctrine  of  Scripture 
from  which  he  has  taken  liis  course  of  proceeding  in  this  case,  may  be  perfectly  true  ; 
but  that  there  is  anything  in  the  nature  of  a  duty  neglected,  that  is,  a  duty  which  he 
believed  or  knew  to  be  such,  in  this  instance,  I  am  clearly  of  opinion  the  evidence  does 
not  show.  On  the  contrary,  he  believed  his  duty  to  be  in  the  direction  in  which  he 
acted,  and  he  carried  out  that  duty  to  the  utmost  of  his  ability.  He  may  altogether 
have  mistaken  what  his  duty  was  ;  still  I  believe  it  was  an  honest  mistake.  It  may  be 
an  ignorant  mistake,  in  all  probability  it  is  the  result  of  ignorance  and  superstition, 
but  certainly  there  is  not  a  trace  of  anything  like  an  intentional  omission  of  duty  or  a 
culpable  omission  of  duty  within  the  meaning  of  that  expression  as  used  in  the  criminal 
law.  I  am  clearly  of  opinion  that  it  is  not  a  case  for  an  indictment,  nor  a  case  for  a 
judge  to  deal  with  in  a  Criminal  Court.  If  the  Legislature  (as  they  have  done  in 
dealing  with  the  case  of  the  prevention  of  small  pox),  are  minded  to  pass  a  law  on  the 
subject,  that  is  a  different  matter,  and  it  would  be  quite  right  then  that  persons  should 
be  compelled  to  conform  to  it,  although  they  themselves  may  personally  object  to  it, 
because  it  is  the  law  of  the  society  in  which  they  live,  and  they  are  bound  by  that  law 
if  society  chooses  to  enact  it.  But  I  am  clearly  of  opinion  that  no  judge  sitting  in  a 
Criminal  Court,  without  any  direction  or  enactment  of  the  Legislature,  would  be  justi- 
fied in  saying  that  a  parent  who  exercised  his  best  judgment,  though  a  perverted  one, 
in  dealing  with  his  child  by  nursing  and  care  instead  of  calling  in  a  doctor  to  apply 
blisters,  leaches,  and  calomel,  was  guilty  of  criminal  negligence,  I  may  say  that  I  had 
an  opportunity  before  coming  into  court,  knowing  that  this  case  was  coming  on,  of 
speaking  of  it  to  Mr.  Justice  Quain,  and  the  learned  Recorder,  and  they  quite  concur 
in  the  view  I  have  propounded  and  upon  which  I  am  acting," 


174  REGINA   V.   INSTAN.  [CHAP.  III. 

ishable  summaiilv  if  any  parent  wilfully  neglects  to  provide  {inter  alia) 
medical  aid  for  his  child  being  in  his  custody  under  the  age  of  fourteen 
years,  whereby  the  health  of  sucli  child  shall  have  been  or  shall  be 
likely  to  be  seriously  injured.  Tliat  enactment  I  understand  to  mean 
that  if  any  parent  intentionally,  i.  e.,  with  the  knowledge  that  medical 
aid  is  to  be  obtained,  and  with  a  deliberate  intention  abstains  from  pro- 
viding it,  he  is  guilty  of  an  offence.  Under  that  enactment  upon  these 
facts  "the  prisoner  would  clearly  have  been  guilty  of  the  offence  created 
by  it.  If  the  death  of  a  person  results  from  the  culpable  omission  of  a 
breach  of  duty  created  by  the  law,  the  death  so  caused  is  the  subject  of 
manslaughter.  In  this  case  there  was  a  duty  imposed  by  the  statute 
on  the  prisoner  to  provide  medical  aid  for  his  infant  child,  and  there 
was  the  deliberate  intention  not  to  obey  the  law  ;  whether  proceeding 
from  a  good  or  bad  motive  is  not  material.  The  necessary  ingredient 
to  constitute  the  crime  of  manslaughter  existed,  therefore,  in  this  case  ; 
and  for  that  reason  this  conviction  ought  to  be  affirmed. 

Bramwell,  B.  I  am  of  the  same  opinion.  The  31  &  32  Vict.  c.  122, 
s.  37,  has  imposed  a  positive  and  absolute  du^y  on  parents,  whatever 
their  conscientious  or  superstitious  opinions  may  be,  to  provide  medical 
aid  for  their  infant  children  in  their  custody.  The  facts  show  that  the 
prisoner  thought  it  was  irreligious  to  call  in  medical  aid,  but  that  is  no 
excuse  for  not  obejing  the  law. 

Mellor  and  Grove,  JJ.,  and  Pollock,  B.,  concurred. 

Conviction  aj^rmed. 


91^ 

REGINA  V.   INSTAN. 
Crown  Case  Reserved.     1893. 

[Reported  [1893]  1  Q.  B.  450.] 

Case  stated  by  Day,  J. 

Kate  Instan  was  tried  before  me  at  the  last  assizes  for  the  county  of 
Worcester  upon  a  charge  of  feloniously  killing  one  Ann  Hunt.  The 
prisoner,  who  is  between  thirty  and  forty  years  of  age  and  unmarried, 
had  no  occupation  and  no  means  of  her  own  of  living.  She  was  a 
niece  of  the  deceased. 

At  the  time  of  the  committal  of  the  alleged  offence,  and  for  some 
time  previous  thereto,  she  had  been  living  with  and  had  been  main- 
tained by  the  deceased.  Deceased  was  a  woman  of  some  sevent}-- 
three  j-ears  of  age,  and  until  a  few  weeks  before  her  death  was  healthy 
and  able  to  take  care  of  herself.  She  was  possessed  of  a  small  life 
income,  and  had  in  the  house  in  which  she  lived  some  little  furniture, 
and  a  few  other  articles  of  trifling  value.  The  two  women  lived  to- 
gether in  a  house  taken  by  the  deceased ;  no  one  lived  with  them  or 
in  any  way  attended  to  them. 


SECT.  II.]  REGINA   V.   INSTAN.  175 

The  deceased  shortly  before  her  death  suffered  from  gangrene  in 
the  leg,  which  rendered  her  during  the  last  ten  days  of  her  life  quite 
unable  to  attend  to  herself  or  to  move  about  or  to  do  anything  to  pro- 
cure assistance.  No  one  but  the  prisoner  iiad  previous  to  the  death 
an}'  knowledge  of  the  condition  in  which  her  aunt  thus  was.  The 
prisoner  continued  to  live  in  the  house  at  the  cost  of  the  deceased, 
and  took  in  the  food  supplied  by  the  tradespeople  ;  but  does  not 
appear  to  have  -given  any  to  the  deceased,  and  she  certainl}'  did  not 
give  or  procure  any  medical  or  nursing  attendance  to  or  for  her,  or 
give  notice  to  an}'  neighbor  of  her  condition  or  wants,  although  she 
had  abundant  opportunit}'  and  occasion  to  do  so. 

The  body  of  the  deceased  was  on  August  2,  while  the  prisoner  was 
still  living  in  the  house,  found  much  decomposed,  partially'  dressed  in 
her  da}'  clothes,  and  lying  partly  on  the  ground  and  partly  prone  upon 
the  bed.  The  death  probably  occurred  from  four  to  seven  days  before 
August  3,  the  date  of  the  post-mortem  examination  of  the  body.  The 
cause  of  death  was  exhaustion  caused  by  the  gangrene,  but  substan- 
tially accelerated  by  neglect,  want  of  food,  of  nursing,  and  of  medical 
attendance  during  several  days  previous  to  the  death.  All  these  wants 
could  and  would  have  been  supplied  if  any  notice  of  the  condition  of 
the  deceased  had  been  given  by  the  prisoner  to  any  of  the  neighbors, 
of  whom  there  were  several  living  in  adjoining  houses,  or  to  the  rela- 
tions of  the  deceased,  who  lived  within  a  few  miles.  It  was  proved 
that  the  prisoner,  while  the  deceased  must  have  been  just  about  dying, 
had  conversations  with  neighbors  about  the  deceased,  but  did  not 
avail  herself  of  the  opportunities  thus  afforded  of  disclosing  the  con- 
dition in  which  she  then  was. 

At  the  close  of  the  case  it  was  objected  on  behalf  of  the  prisoner 
that  there  was  no  evidence  of  any  legal  dut}-  such  as  would  bind  the 
prisoner  to  give  or  to  procure  any  food,  or  nursing,  or  attendance  to 
or  for  the  deceased,  or  to  give  any  notice  to  any  one  tliat  such  was 
required.  I  thought  it  better  not  to  stop  the  case,  but  to  leave  it  to 
the  jury  to  say  whether,  having  regard  to  the  circumstances  under 
which  the  prisoner  hved  with  the  deceased,  and  continued  to  occupy 
the  house,  and  to  take  the  food  provided  at  the  expense  of  the  de- 
ceased, while  the  deceased  was,  as  she  knew,  unable  to  communicate 
with  any  other  person  and  thus  to  procure  necessaries  for  herself,  the 
prisoner  did  or  did  not  impliedly  undertake  with  the  deceased  either  to 
wait  upon  and  attend  to  her  herself,  or  to  communicate  to  persons  out- 
side the  house  the  knowledge  of  her  helpless  condition  ;  and  I  told 
them  that  if  they  came  to  the  conclusion  that  she  did  so  undertake, 
and  that  the  death  of  the  deceased  was  substantially  accelerated  by 
her  failure  to  carry  out  such  undertaking,  they  might  find  the  prisoner 
guilty  of  manslaughter,  but  that  otherwise  they  should  acquit  her. 
The  jury  found  the  prisoner  guilty. 

If  the  facts  above  stated  do  not  afford  evidence  of  the  existence  of 
any  such  undertaking  or  duty,  then  the  conviction  is  to  be  quashed  ; 
if  otherwise,  it  is  to  stand. 


176  EEGINA   V.   INSTAN-  [CHAP.  III. 

Vachell,  for  the  prisoner.  There  was  no  legal  dnU'  imposed  upon 
the  prisoner  to  provide  food  or  attendance  for  the  deceased  during  the 
last  ten  days  of  her  life  ;  tliere  was  certainly  no  such  duty  before  that 
time,  for  the  deceased  was  the  head  of  the  household  and  able  to  help 
herself.  Such  a  dutj-  as  is  here  sought  to  be  enforced  can  onl^-  arise 
by  virtue  of  a  statute  or  a  contract,  or  at  common  law.  It  must  be 
conceded  that  there  was  no  statutory  duty,  neither  was  there  any  duty 
at  common  law  ;  there .  is  no  authority  for  the  existence  of  any  such 
common  law  duty  in  the  case  of  a  person  of  full  age  ;  in  such  a  case 
the  duty  can  onl}'  arise  in  respect  of  an  undertaking,  express  or  im- 
plied. In  Rex  V.  Friend  it  was  held  to  be  an  indictable  offence  to 
refuse  or  neglect  to  provide  sufficient  food,  bedding,  &c.,  to  an  infant 
of  tender  years,  unable  to  provide  for  and  take  care  of  itself,  whom  a 
man  was  obliged  by  duty  or  contract  to  provide  for ;  but  the  decision 
was  in  terras  confined  to  such  cases,  and  the  indictment  was  held  to 
be  defective  in  not  stating  the  child  to  be  of  tender  years  and  unable 
to  provide  for  itself.  In  Reg.  v.  Shepherd  it  was  held  that  there 
was  DO  duty  upon  a  woman  to  procure  a  midwife  for  her  daughter,  a 
girl  of  eighteen,  and  that  she  could  not  be  convicted  of  manslaugliter 
for  omitting  to  do  so.  In  his  judgment,  Erie,  C  J.,  says:  "Here  the 
girl  was  beyond  the  age  of  childhood,  and  was  entirely  emancipated." 
In  the  case  of  a  person  of  full  age  such  a  dutj-  maj'  indeed  arise  out 
of  an  express  or  implied  undertaking:  Reg.  v.  Marriott,  where  a 
man  was  convicted  of  tlic  manslaugliter  of  an  elderly  and  infirm 
woman,  whom  he  had  taken  home  to  live  in  his  house,  promising  to 
make  her  happy  and  comfortable.  In  summing  up  in  that  case,  Pat- 
teson,  J.,  said  :  "  The  cases  which  have  happened  of  this  description 
have  been  generally  eases  of  children  and  servants,  where  the  duty 
was  apparent.  This  is  not  such  a  case  ;  but  it  will  be  for  3"ou  to  say 
whether,  from  the  wa}'  in  which  the  prisoner  treated  her,  he  had  not 
by  wa}'  of  contract,  in  some  way  or  other,  taken  upon  him  the  per- 
formance of  that  dut}'  which  she,  from  age  and  infirmity,  was  inca- 
pable of  doing."  In  the  present  case  there  was  no  evidence  of  an\- 
contract  or  undertaking  b}"  the  prisoner  to  take  care  of  h.er  aunt, 
though  no  doubt  she  was  under  a  moral  obligation  to  do  so, 

[Hawkins,  J.  Why  should  not  a  contract  be  implied  from  such  cir- 
cumstances as  those  in  this  case?  Suppose  two  people  agreed  to  live 
together  for  their  mutual  benefit,  would  not  the  mere  fact  of  their  living 
together  be  evidence  from  which  an  undertaking  might  be  implied?] 

[Cave,  J.  When  the  prisoner  took  in  food  paid  for  with  the  de- 
ceased's mone}',  she  had  no  right  to  apply  it  all  for  her  own  use.  Did 
she  not  then  undertake  a  duty  towards  the  deceased?] 

Not  by  wa}-  of  contract  so  as  to  raise  a  legal  duty  ;  it  was  nothing 
more  than  a  duty  of  imperfect  obligation. 

Lord  Coleridge,  C.  J.  We  are  all  of  opinion  that  this  conviction 
must  be  affirmed.  It  would  not  be  correct  to  say  that  every  moral 
obligation  involves  a  legal  duty ;  but  every  legal  duty  is  founded  on  a 


SECT.  II,] 


REX   V.   PITTWOOD.  177 


moral  oblio-ation.  A  legal  common  law  duty  is  nothing  else  than  the 
enforcing  by  law  of  that  which  is  a  moral  obligation  without  legal 
enforcement.  There  can  be  no  question  in  this  case  that  it  was  the 
dear  duty  of  the  prisoner  to  impart  to  the  deceased  so  much  as  was 
necessary  to  sustain  life  of  the  food  which  she  from  time  to  time  took 
in,  and  which  was  paid  for  by  tlie  deceased's  own  money  for  the  pur- 
pose of  the  maintenance  of  herself  and  the  prisoner ;  it  was  only 
tluou^h  tlie  instrumentality  of  the  prisoner  that  the  deceased  could 
get  the  food.  There  was,  tlierefore,  a  common  law  duty  imposed  upon 
the  prisoner  which  she  did  not  discharge. 

Nor  can  there  be  any  question  that  the  failure  of  the  prisoner  to  dis- 
charge her  legal  duty  at  least  accelerated  the  death  of  the  deceased,  if 
it  did  not  actually  cause  it.  There  is  no  case  directly  in  point;  but  it 
would  be  a  slur  upon  and  a  discredit  to  the  administration  of  justice  in 
this  country  if  tliere  were  any  doubt  as  to  the  legal  principle,  or  as  to 
the  present  case  being  within  it.  The  prisoner  was  under  a  moral 
obligation  to  the  deceased  from  which  arose  a  legal  duty  towards  her ; 
that'' legal  duty  the  prisoner  has  wilfully  and  deliberately  left  unper- 
formedr  with  the  consequence  that  there  has  been  an  acceleration  of 
the  death  of  the  deceased  owing  to  tlie  non-performance  of  that  legal 
duty.  It  is  unnecessary  to  say  more  than  tliat  upon  the  evidence  this 
conviction  was  most  properly  arrived  at. 

Hawkins,  Cave,  Day,  and  Collins,  JJ.,  concurred. 

Conviction  a^'med. 


REX  V.  PITTWOOD. 

Taunton  Assizes.     1902. 
[^Reported  19  Times  Law  Rep.  37.] 

Philip  Pittwood  was  charged  with  the  manslaughter  of  Thomas 
White,  and  a  coroner's  inquisition  for  the  same  offence  was  also 
returned. 

It  appeared  that  the  prisoner  occupied  a  hut  as  a  gate-keeper  on  the 
Somerset  aud  Dorset  Railway,  near  Glastonbury.  His  duties  were  to 
keep  the  gate  shut  whenever  a  train  was  passing  along  the  line,  which 
was  a  single  line,  and  not  man}'  trains  used  to  pass  during  the  da}'. 
His  hours  of  duty  were  from  7  in  the  morning  till  7  p.  m.  On  July  18, 
at  about  2.45  in  the  afternoon,  White  was  in  a  hay  cart  crossing  the 
line  with  several  others,  when  a  train  came  up  and  hit  the  cart,  White 
being  struck  and  killed.  Another  man  was  also  seriously  injured,  while 
the  three  remaining  men,  by  jumping  out  of  the  cart,  saved  their  lives. 
A  number  of  witnesses  were  called  to  show  that  it  was  really  only  an 

12 


178 


KEX   V.   PITTWOOD.  [CHAP.  III. 


accommodation  road,  and  not  a  public  road.  It  was  shown  that  the 
train  was  going  at  a  very  fair  rate,  and  it  was  impossible  to  stop  it,  as 
the  cart  was  only  seen  by  the  driver  a  few  yaftls  from  his  train.  The 
prisoner  gave  evidence  before  the  coroner,  and  his  deposition  was  put 
in,  and  iir  it  he  stated  that  he  had  put  the  gate  open  about  ten  minutes 
before  to  let  a  cart  pass,  and  had  propped  it  open,  had  forgotten  to 
shut  it  again,  and  had  gone  to  have  some  luncheon.  For  the  defence 
it  was  suggested  that  there  was  only  mere  inattention  on  the  part  of 
the  prisoner,  and  no  criminal  negligence.  The  jury  returned  a  verdict 
of  r/uiltt/.  Mr.  Justice  Wright  passed  a  sentence  of  three  weeks' 
imprisonment  in  the  second  division,  but  allowed  the  prisoner  out  on 
his  own  recognizance  to  hear  the  points  of  law  to  be  argued  in  arrest  of 
judgment. 

Mr.  Simon,  on  behalf  of  the  prisoner,  submitted  that  there  was  no 
evidence  of  negligence  to  go  to  the  jury ;  that  negligence  in  law  is 
want  of  due  care  ;  that  in  the  present  case  the  prisoner  was  not  bound 
to  take  any  care;  that  it  was  necessary  that  the  duty  to  take  care 
should  be  towards  the  person  who  complained ;  and  that,  in  the  pres- 
ent case,  the  prisoner  only  contracted  with  his  employers,  —  the  rail- 
way company.  He  quoted  Reg.  v.  Smith,  11  Cox,  210,  decided  by 
Mr.  Justice  Lush.  Further,  he  submitted  that  the  man  who  was  killed 
was  not  the  man  for  whom  the  gate  was  opened.  '[Mr.  Justice 
Wright.  —  The  jury  have  not  had  to  consider  whether  this  was  an 
accommodation  road  or  not.  That  question  could  not  be  left  to 
them.] 

Mr.  Justice  Wright,  without  calling  upon  the  prosecution,  gave 
judgment.  He  said  he  was  clearly  of  opinion  that  in  this  case  there 
was  gross  and  criminal  negligence,  as  the  man  was  paid  to  keep  the 
gate  shut  and  protect  the  public.  In  his  opinion  there  were  three 
grounds  on  which  the  verdict  could  be  supported :  (1)  There  might  be 
cases  of  misfeasance  and  cases  of  mere  non-feasance.  Here  it  was 
quite  clear  there  was  evidence  of  misfeasance,  as  the  prisoner  directly 
contributed  to  the  accident.  (2)  A  man  might  incur  criminal  liability 
from  a  duty  arising  out  of  contract.  The  learned  Judge  quoted  in  sup- 
port of  this,  Reg.  v.  NichoUs,  13  Cox,  75  ;  Reg.  v.  Elliott,  16  Cox,  710  ; 
Reg.  V.  Benge,  4  F.  &  F.  504  ;  Reg.  v.  Hughes,  Dears.  &  B.  C.  C.  248. 
The  strongest  case  of  all  was,  perhaps,  Reg.  v.  Instan  (1893),  1  Q.  B. 
450,  and  that  case  clearly  governed  the  present  charge.  (3)  With 
regard  to  the  point  that  this  was  onh'  an  occupation  road,  he  clearly 
held  that  it  was  not,  as  the  company  had  assumed  the  liability  of  pro- 
tecting the  public  whenever  the}-  crossed  the  road.  There  was  no 
ground  for  stating  a  case  on  any  of  the  grounds  urged  on  behalf  of 
the  prisoner. 

The  prisoner  thereupon  surrendered  to  undergo  the  sentence  that 
had  been  passed  upon  him. 


SECT,  II.]  ANDERSON   V.   STATE.  179 

ANDERSON  v.   STATE. 

Texas  Court  of  Appeals.     1889. 

[Reported  27  Tex.  App.  177.] 

The  conviction  in  this  case  was  for  negligent  homicide,  and  the 
penalty  assessed  against  each  of  the  appellants  was  a  fine  of  two 
hundred  and  lift}'  dollars. 

The  indictment  impleaded  O.  Torgerson,  engineer,  J.  A.  DeCogne, 
fireman,  and  the  appellants  as  brakemen  on  engine  number  eleven  of 
the  Houston,  East  &  West  Texas  Railway  Company,  charging  them 
with  negligent  homicide  of  the  first  degree,  and  alleging  in  substance 
that  on  the  seventh  day  of  Februar}-,  1887,  while  engaged  as  workmen 
in  running  said  engine  and  tender  on  said  railroad,  said  Torgerson, 
DeCogne,  Anderson,  and  Woods  did  back  said  engine  and  tender  negli- 
gently and  carelessl}',  without  ringing  the  bell  or  blowing  the  whistle, 
and  without  giving  any  warning,  and  without  first  looking  to  see  if  any 
person  was  likely  to  be  injured  thereby,  and  by  said  negligence  and 
carelessness  one  Sing  Morgan  was  struck  b}'  said  engine  and  tender  so 
run,  and  the  death  of  said  Morgan  was  caused  by  said  negligence  and 
carelessness  —  the  said  Morgan  being  at  the  time  in  a  position  to  be 
struck  by  said  engine  and  tender  which  fact  would  have  been  known 
by  said  Torgerson,  DeCogne,  Anderson,  and  Woods  if  they  had  used 
that  degree  of  care  and  caution  which  a  man  of  ordinary'  prudence 
would  use  under  like  circumstances,  there  being  then  and  there  an 
apparent  danger  of  causing  the  death  of  said  Morgan  and  of  other 
persons  passing  on  said  railroad  and  highwaj^.^ 

WiLLSOX,  J.  ...  As  we  view  the  evidence  and  the  law  applicable 
thereto,  this  conviction  is  not  warranted.  These  appellants  were  brake- 
men.  The}-  had  no  control  whatever  of  said  engine  and  tender.  They 
were  riding  upon  the  same  for  the  purpose  merely  of  performing  their 
specific  duties  as  brakemen,  which  duties  had  no  connection  with  or 
relation  to  the  homicide.  It  was  the  exclusive  duty  of  the  engineer 
and  fireman  to  operate  said  engine  carefully  ;  to  look  out  for  obstruc- 
tions upon  the  track  ;  to  give  signals  of  danger  when  necessar}'.  With 
these  duties  appellants  were  in  no  wa}'  concerned.  They  had  no  right 
to  start  the  engine  in  motion,  to  blow  the  whistle,  to  ring  the  bell,  to 
stop  the  engine,  or  otherwise  to  control  its  movements.  They  per- 
formed no  act  which  connected  them  with  the  death  of  the  child.  It  is 
only  for  a  supposed  omission  of  dutv  on  their  part  that  they  have  been 
convicted  of  negligent  homicide.  Thev  omitted  to  look  out  for  obstruc- 
tions on  the  track.  They  might  have  seen  the  child  in  time  to  save  its 
life,  but  they  omitted  to  see  him.  Or  if  they  did  see  him  they  omitted 
to  stop  the  train,  or  to  signal  the  engineer  to  stop  it. 

1  The  evidence  and  part  of  the  opinion  dealing  with  the  form  of  the  indictment 
and  the  admissibility  of  certain  evidence  are  omitted.  —  Ed. 


180  ANDERSON   V.    STATE.  [CHAP.  III. 

Were  these  omissions  criminal,  within  the  meaning  of  the  statute 
defining  negligent  homicide?  We  think  not,  because,  to  constitute 
criminal  negligence  or  carelessness,  there  must  be  a  violation  of  some 
duty  imposed  by  law  directly  or  impliedly,  and  with  which  duty  the 
defendant  is  especially  charged.  Mr.  Wharton  says  :  "  Omissions  are 
not  the  basis  of  penal  action,  unless  they  constitute  a  defect  in  the  dis- 
charge of  a  responsibility  with  which  the  defendant  is  especially  in- 
veste'd."  (Wharton  on  Hom.  sec.  72.)  Again,  this  author  says,  in 
treating  of  omissions  by  those  charged  with  machinery,  etc.:  "The 
responsibility  of  the  defendant  which  he  thus  fails  to  discharge  must 
be  exclusive'  and  peremptory.  A  stranger  who  sees  that  unless  a  rail- 
way switch  is  turned,  or  the  car  stopped,  an  accident  may  ensue,  is  not 
indictable  for  not  turning  the  switch  or  stopping  the  car.  The  reason 
for  this  is  obvious.  To  coerce,  by  criminal  prosecutions,  every  person 
to  supervise  all  other  persons  and  things,  would  destroy  that  division 
of  labor  and  responsibility  by  which  alone  business  can  be  safely  con- 
ducted, and  would  establish  an  industrial  communism,  by  which  private 
enterprise  and  private  caution  would  be  extinguished.  Nothing  can  be 
effectually  guarded  when  everything  is  to  be  guarded  by  everybody. 
Ko  machinery  could  be  properly  worked  if  every  passerby  were  com- 
pelled by  the  terror  of  a  criminal  prosecution  to  rush  in  and  adjust 
anything  that  might  appear  to  him  to  be  wrong,  or  which  was  wrong, 
no  matter  how  it  might  happen  to  appear.  By  this  wild  and  irre- 
sponsible interference  even  the  simplest  forms  of  machinery  would 
be  speedily  destroyed."  (Ibid.  sec.  80.)  And  upon  the  subject  of 
omission  to  give  warning  of  danger,  the  same  author  says :  "  The  test 
here  is,  is  such  notice  part  of  an  express  duty  with  which  the  defend- 
ant is  exclusivel}'  charged?  If  so,  he  is  responsible  for  injury  which 
is  the  regular  and  natural  result  of  his  omission  ;  but  if  not  so  bound, 
he  is  not  so  responsible."     (Ibid.  sec.  81.) 

These  rules  of  the  common  law  are  not  inconsistent  with  our  statute, 
but  are  in  harmony  therewith,  as  we  construe  it.  As  we  understand 
both  the  common  law  and  the  statute,  there  can  be  no  criminal  negli- 
gence or  carelessness  by  omission  to  act,  unless  it  was  the  especial 
duty  of  the  party  to  perform  the  act  omitted.  Negligence  or  careless- 
ness by  omission  presupposes  duty  to  perform  the  act  omitted,  and  can 
not,  in  law,  be  imputed  except  upon  the  predicate  of  dut}'. 

In  this  case  the  evidence  is  uncontradicted  and  clear  that  appellants 
did  not  do  any  act  or  omit  to  do  any  legal  duty,  with  reference  to  the 
deceased  child.  In  law  the}'  are  no  more  responsible  for  the  death 
of  the  child  than  any  other  person  who  was  present  and  witnessed  the 
accident.  They  were  strangers  to  the  transaction,  in  contemplation 
of  the  law,  because  they  were  not  charged  with  any  duty  with  respect 
to  it. 

We  are  of  the  opinion  that  the  judgment  of  conviction  is  contrary  to 
the  law  and  the  evidence,  and  therefore  said  judgment  is  reversed  and 
the  cause  is  remanded.  Heversed  and  remanded. 


SECT.    II.]  BEATTIE    IK   STATE.  181 

BEATTIE  V.   STATE. 
Supreme  Court  of  Aukaxsas.    1904. 

[Reported  73  Ark.  428.] 

George  Beattie,  a  resident  of  Missouri,  was  arrested,  tried  and  con- 
victed on  a  charge  that,  being  a  resident  of  the  State  of  Missouri,  he 
did,  in  the  county  of  Sharp  and  State  of  Arkansas,  in  Ma}',  1904,  herd, 
graze,  and  permit  to  run  at  large  about  nineteen  head  of  cattle.  He 
was  convicted,  and  fined  $100  before  a  justice  of  the  peace.  He  took 
an  appeal  to  the  Circuit  Court,  and  on  the  trial  there  the  Circuit  Judge 
made  the  following  findings  of  law  and  fact : 

"  In  this  case  I  find  that  the  defendant,  George  Beattie,  was  a  non- 
resident of  the  State  of  Arkansas,  and  was  a  resident  of  the  State 
of  Missouri ;  that  he  owned  land  in  the  latter  State  ;  that  his  land,  or 
at  least  a  part  of  it,  had  as  its  south  line,  the  State  line,  and  that  his 
residence  was  in  the  State  of  Missouri  about  one-half  of  one-quarter 
of  a  mile  north  of  the  State  line.  The  evidence  further  shows  that  he 
owned  eighty  acres  of  land  in  Arkansas.  The  testimony  shows  that 
he  would  turn  his  cattle  out  of  the  inclosure  in  Missouri,  knowing  that 
the}'  would  go  across  the  line  in  the  State  of  Arkansas  ;  that  he  would 
go  and  drive  them  out  of  said  State  for  the  purpose  of  salting  them, 
and  then  turn  them  out  when  the}'  would  go  across  into  Arkansas,  and 
that  this  was  done  repeatedly  during  the  year  prior  to  the  filing  of  the 
information  herein. 

"  I  find  that  if  defendant  turned  his  stock  on  the  range  in  Missouri 
with  no  one  to  look  after  them,  knowing  that  they  were  in  the  habit  of 
going  into  Arkansas,  and  that  they  did  go  into  Arkansas,  he  would 
be  guilty  of  a  violation  of  this  statute,  although  he  may  have  been  in 
the  State  of  Missouri  during  the  lime. 

"  I  further  find  that  if  he  thus  permitted  his  stock  to  enter  the  State 
df  Arkansas,  and  went  into  said  State  for  the  purpose  of  driving  them 
home  to  be  salted,  and  then  turned  them  out  again,  he  would  be 
guilty." 

The  court  also  declared  the  law  to  be  that  the  fact  that  a  non- 
resident owned  land  in  this  State  did  not  authorize  him  to  herd,  graze, 
or  permit  his  stock  to  run  at  large  in  this  State,  though  he  had  the 
right  to  pasture  them  on  his  own  land. 

The  court  gave  other  instructions  of  law  on  motion  of  the  State  and 
defendant,  but  they  need  not  be  set  out  here,  for  the  substance  of  them 
is  contained  in  the  above  findings. 

The  court  found  that  defendant  was  guilty,  and  assessed  his  fine  at 
$100.     Defendant  appealed. 


182  BEATTIE  V.    STATE.  [CHAP.  III. 

RiDDiCK,  J.  This  is  an  appeal  from  a  judgment  convicting  a  non- 
resident defendant  and  assessing  a  fine  of  $100  against  liim  for  per- 
mitting his  cattle  to  rnn  at  large  in  this  State. 

Now,  it  is  clear  that  our  statute  on  that  subject  does  not  forbid 
a  nonresident,  whose  cattle  have  stra3-ed  or  come  of  their  own  voli- 
tion into  this  State,  from  driving  them  out  again.  It  is  equally  clear 
that  it  does  not  subject  a  resident  of  Missouri,  who  turns  his  cattle 
at  large  in  that  State,  to  a  criminal  prosecution  and  fine  if  the  cattle 
afterwards  come  into  this  State ;  for  the  Legislature  of  this  State  has 
no  power  to  punish  a  resident  of  Missouri  for  a  lawful  act  done  in  that 
State.  Nor  do  we  think  that  it  would  alter  the  case  if  the  defendant 
knew,  at  the  time  he  turned  them  at  large  in  Missouri,  that  they 
would  probably  come  into  Arkansas,  for  the  Legislature  of  this  State 
cannot  compel  the  residents  of  Missouri  who  live  near  the  State  line  to 
keep  their  cattle  in  inclosed  lots  or  fields  in  order  to  prevent  them 
from  coming  into  this  State,  and  we  do  not  think  that  was  the  inten- 
tion of  this  statute  to  do  so.  The  people  of  Missouri  have  the  right  to 
permit  their  cattle  to  run  at  large  in  that  State,  unless  forbidden  by 
the  law  of  that  State ;  and  if  the  people  of  this  State  desire  to  keep 
such  cattle  from  entering  this  State,  they  can  do  so  by  putting  up 
a  fence  along  the  line  between  this  State  and  Missouri  or  by  a  statute 
authorizing  the  cattle  of  nonresidents  which  stray  into  this  State  to  be 
impounded  and  kept  at  the  costs  of  the  owners.  But  to  undertake  to 
arrest  and  fine  a  resident  of  Missouri  because  he  does  not  prevent  his 
cattle  from  straying  into  this  State  would  be  to  assume  a  jurisdiction 
over  the  residents  of  that  State  never  intended  by  the  statute  and  be- 
yond the  power  of  the  Legislature  to  confer. 

The  evidence  in  the  case  was  conflicting,  and  some  of  it,  if  true, 
might  have  warranted  a  finding  that  the  defendant  was  guilt}-,  but  the 
finding  of  facts  by  the  court  has  evidence  to  support  it,  and,  taking 
that  as  true,  no  crime  was  committed. 

The  judgment  will  therefore  be  reversed,  and  the  cause  remanded 
for  a  new  trial. 


SECT,  IIL]  DOBBS'S  CASE.  183 


I  '9 

SECTION   III. 
A  Specific  Intent  as  Part  of  an  Act. 

1  Hale  P.  C.  569.  [Arson]  must  be  a  wilful  and  malicious  burning, 
otherwise  it  is  not  felon}-,  but  only  a  trespass  ;  and  therefore  if  A. 
shoot  unlawfuU}-  in  a  hand-gun,  suppose  it  to  be  at  the  cattle  or  poul- 
try of  B.  and  the  fire  thereof  sets  another's  house  on  fire,  this  is  not 
felony,  for  though  the  act  he  was  doing  were  unlawful,  yet  he  had  no 
intention  to  burn  the  house  thereby,  against  the  opinion  of  Dalt.  Cap. 
105  p.  270. 

But  if  A.  have  a  malicious  intent  to  burn  the  house  of  B.,  and  in 
setting  fire  to  it  burns  the  house  of  B.  and  C.  or  the  house  of  B. 
escapes  by  some  accident,  and  the  fire  takes  in  the  house  of  C.  and 
burneth  it,  though  A.  did  not  intend  to  burn  the  house  of  C,  yet  in 
law  it  shall  be  said  the  malicious  and  wilful  burning  of  the  house  of 
C.  and  he  ma}"  be  indicted  for  the  malicious  and  wilful  burning  of  the 
house  of  C.     Co.  P.  C.  p.  67. 


ISO. 
DOBBS'S   CASE. 

Buckingham  Assizes.     1770. 

[Reported  2  East,  P.  C.  513.] 

Joseph  Dobbs  was  indicted  for  burglary  in  breaking  and  entering 
the  stable  of  James  Bayley,  part  of  his  dwelling-house,  in  the  night, 
with  a  felonious  intent  to  kill  and  destroy  a  gelding  of  one  A.  B.,  there 
being.  It  appeared  that  the  gelding  was  to  have  run  for  forty  guineas, 
and  "that  the  prisoner  cut  the  sinews  of  his  fore-leg  to  prevent  his  run- 
ning, in  consequence  of  which  he  died. 

Parker,  C.  B.,  ordered  him  to  be  acquitted  ;  for  his  intention  was 
not  to  commit  the  felony,  by  killing  and  destroying  the  horse,  but  a 
trespass  only  to  prevent  his  running ;  and  therefore  no  burglary. 

But  the  prisoner  was  again  indicted  for  killing  the  horse,  and 
capitally  convicted. 


184 


REX    V.   KELLY.  [CHAP.  III. 


REX   V.   BOYCE. 
Crown  Case  Reserved.     1824. 

[Reported  1  Moody,  29.] 

The  prisoner  was  tried  before  Thomas  Denman,  Esq.,  Common 
Serjeant  at  the  Old  Bailey  Sessions,  June,  1824,  upon  an  indictment  for 
feloniously  cutting  and  maiming  John  Fishburn,  with  intent  to  murder, 
maim,  and  disable.^  There  was  no  count  which  charged  an  intent  to 
prevent  his  lawful  apprehension. 

The  facts  were  these  : 

The  prisoner  had,  in  the  night  time,  broken  into  a  shop  in  Fleet 
Market,  and  was  there  discovered  by  the  prosecutor,  who  was  a  watch- 
man, at  a  quarter  before  five  in  the  morning  of  the  11th  of  April,  1820. 
On  the  prosecutor  entering  the  shop  for  the  purpose  of  apprehending 
him,  the  prisoner  struck  him  with  his  fist,  which  blow  the  prosecutor 
returned.  The  prisoner  then  said,  "I  will  serve  you  out  — I  will  do 
for  you ; "  and,  taking  up  a  crow-bar,  struck  the  prosecutor  with  it 
two  severe  blows,  one  on  the  head,  the  other  on  the  arm  ;  he  then 
ran  away,  ordering  the  prosecutor  to  sit  on  a  block  in  the  shop,  and 
threatening  that  it  would  be  worse  for  him  if  he  moved. 

The  crow-bar  was  a  sharp  instrument,  and  the  prosecutor  was  cut 
and  maimed  by  the  blows  so  given  with  it  by  the  prisoner. 

The  prisoner  was  found  guilty;  and,  on  an  answer  to  a  question  from 
the  Common  Serjeant,  the  jury  said,  "We  find  that  he  was  there  with 
intent  to  commit  a  robbery,  and  that  he  cut  and  maimed  the  watchman 
with  intent  to  disable  him  till  he  could  effect  his  own  escape." 

The  Common  Serjeant  reserved  the  above  case  for  the  consideration 
of  the  judges. 

In  Trinity  Term,  1824,  all  the  judges  (except  Graham,  B.  and 
Garrow,  B.)  met,  and  considered  this  case,  and  held  the  conviction 
wrong,  for,  by  the  finding  of  the  jury,  the  prisoner  intended  only  to 
produce  a  temporary  disability  till  he  could  escape,  not  a  permanent 
one.^ 


REX  V.   KELLY. 
MoNAGHAN  Assizes,  Ireland.     1832. 

[Reported  1  Crawford  Sf  Dix,  186  ] 

Indictment  for  maliciously  killing  a  horse.     The  evidence  was  that 
the  prisoner  had  fired  at  the  prosecutor,  and  killed  his  horse. 

1  See  43  Geo.  III.  c.  58,  §  1. 

2  Ace.  Rex  V.  Duffin,  Russ.  &  Ry.  365.  —  Ed. 


SECT.  III.] 


REGINA    V.    SMITH. 


185 


BusHE,  C.  J.  Under  this  Act  ^  the  offence  must  be  proved  to  have 
been  done  maliciousl}',  and  malice  implies  intention.  Here  the  proof 
negatives  the  intention  of  killing  the  horse.  The  prisoner  must  there- 
fore be  acquitted.'' 


^ 


REGINA  V.  SMITH. 


Crown  Case  Reserved.     1856. 


;^ 


[Reported  Dears.  C.  C.  559.] 

The  following  ease  was  stated  for  the  opinion  of  the  Court  of  Crim- 
inal Appeal  by  Mr.  Justice  Crompton. 

The  prisoner  was  convicted  before  me  at  the  Winchester  Summer 
Assizes,  1855,  on  an  indictment  charging  him  with  wounding  William 
Taylor  with  intent  to  murder  him. 

On  the  night  in  question  the  prisoner  was  posted  as  a  sentry  at  Park- 
hurst,  and  the  prosecutor,  Taylor,  was  posted  as  a  sentry  at  a  neigh- 
bouring post. 

The  prisoner  intended  to  murder  one  Malone}',  and  supposing  Taylor 
to  be  Malone}-,  shot  at  and  wounded  Taylor. 

The  jury  found  that  the  prisoner  intended  to  murder  Malonc}-,  not 
knowing  that  the  party  he  shot  at  was  Taylor,  but  supposing  him  to  be 
Maloney,  and  the  jury  found  that  he  intended  to  murder  the  individual 
he  shot  at  supposing  him  to  be  Malone}'. 

I  directed  sentence  of  death  to  be  recorded,  reserving  the  question, 
whether  the  prisoner  could  be  properly  convicted  on  this  state  of  facts 
of  wounding  Taylor  with  intent  to  murder  him  ?  See  Rex  v.  Holt,  7 
Car.  &  P.  518.     See  alro  Rex  v.  Ryan,  2  Moo.  «fe  Rob.  213. 

Charles  Crompton. 

This  case  was  considered  on  24th  of  November,  1855,  by  Jervis, 
C.  J.,  Parke,  B.,  Wightman,  J.,  Crompton,  J.,  and  Willes,  J. 
No  counsel  appeared  either  for  the  Crown  or  for  the  prisoner. 
Jervis,  C.  J.     There  is  nothing  in  the  objection.     The  conviction  is 
good. 

Parke,  B.     The  prisoner  did  not  intend  to  kill  the  particular  person, 
_but  he  rneant  to  murder  the  man  at  whom  he  shot. 
The  olher  learned  Judges  concurred. 

Conviction  affirmed. 

1  9  Geo.  IV.  c.  56,  §  17. 

2  Ace.  Cora.  V.  Walden,  3  Cush.  558.  —Ed. 


186  '  KEX  V.    WILLIAMS.  [CHAP.  IIL 

REX  V.   WILLIAMS. 

Crowx  Case  Reversed.     1790. 

[Reported  1  Leach  C.  C.  (ith  Ed.)  529.] 

AsHHURST,  J.^  Ehenwick  Williams,  the  prisoner  at  the  bar,  was  tried 
in  last  Jul}'  Session  on  the  statute  of  6  Geo.  I,  c.  23,  and  the  indict- 
ment charged,  that  he,  on  the  18th  January  1790,  at  the  parish  of  St. 
James,  in  a  certain  public  street  called  St.  James's-street,  wilfully, 
maliciously,  and  feloniously  did  make  an  assault  on  Anne  Porter, 
spinster,  with  intent  wilfully  and  maliciously  to  tear,  spoil,  cut,  and 
deface  her  garments ;  and  that  he,  on  that  said  18th  of  January  1790, 
in  the  parish  aforesaid,  &c.  did  wilfully,  maliciously,  and  feloniously 
tear,  spoil,  cut,  and  deface  her  silk  gown,  petticoat,  and  shift,  being 
part  of  the  wearing  apparel  which  she  then  had  and  wore  on  her 
person.  The  Jury  found  the  prisoner  guilty ;  but  the  judgment  was 
respited,  and  the  case  submitted  to  the  consideration  of  the  Judges 
upon  three  questions.  A  majority  of  the  Judges  are  of  opinion,  upon 
all  the  questions,  that  this  indictment  is  not  well  founded.  .  .  .  The 
Judges  are  of  opinion,  that  the  case,  as  proved,  is  not  substantially 
within  the  meaning  of  the  Act  of  Parliament.  This  statute  was  passed 
upon  a  particular  and  extraordinary  occasion.  Upon  the  introduc- 
tion of  Indian  fashions  into  this  country,  the  silk  weavers,  conceiving 
that  it  would  be  detrimental  to  their  manufacture,  made  it  a  practice  to 
tear  and  destroy  the  clothes  and  garments  which  were  of  a  different 
commodity  from  that  which  they  wove,  and  to  i)revent  this  practice 
the  statute  of  6  Geo.  I,  c.  23,  was  made.  To  bring  a  case  therefore 
within  this  statute,  the  primary  intention  must  be  the  tearing,  spoiling, 
cutting,  or  defacing  of  the  clothes  ;  whereas,  in  the  present  case,  the 
primary  intention  of  the  prisoner  appears  to  have  been  the  wounding 
of  the  person  of  the  prosecutrix.  The  Legislature,  at  the  time  they 
passed  this  Act,  did  not  look  forward  to  the  possibility  of  a  crime 
of  so  diabolical  a  nature  as  that  of  wounding  an  unoffending  person 
merely  for  the  sake  of  wounding  the  person,  without  having  received 
an}-  provocation  whatever  from  the  party  wounded.  But  even  upon  the 
supposition  that  it  was  possil)le  for  the  Legislature  to  entertain  an  idea 
of  such  an  offence,  it  is  clear  they  did  not  intend  to  include  it  within 
the  penalties  of  this  statute,  because,  if  they  had  entertained  such  an 
idea,  it  is  probable  they  would  have  annexed  to  it  a  higher  punishment 
than  this  statute  inflicts.  As  the  Legislature  therefore  could  not  have 
framed  this  statute  to  meet  this  offence,  it  does  not  fall  within  the 
province  of  those  who  are  to  expound  the  laws  to  usurp  the  office  of  the 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


SECT.  III.]  STATE    V.   TAYLOR.  187 

Legislature,  and  to  bring  an  offence  within  the  meaning  of  an  Act, 
merely  because  it  is  enormous,  and  deserving  of  the  highest  punish- 
ment. But  although  the  lash  of  the  Legislature  does  not  reacli  this 
offence  so  as  to  inllict  the  consequences  of  felonj'  on  the  offender,  yet 
the  wisdom  of  the  Common  Law  opens  a  means  of  prosecution  by 
indictment  for  the  misdemeanor,  and,  on  conviction  of  the  offender, 
arms  the  Court  with  a  power  to  punish  the  offence  in  a  way  that  may 
force  him  to  repent  the  temerity  of  so  flagrant  a  violation  of  the  rules 
of  law,  the  precepts  of  social  duty,  and  the  feelings  of  humanity.^ 


STATE  V.  TAYLOR. 

Supreme  Court  of  Vermont.     1896. 

[Reported  70  Vt.  1 .] 

Indictment  for  an  assault  with  intent  to  kill  and  murder.  Trial  by 
jury  at  the  May  Term,  1895,  Windsor  County,  Taft,  J.,  presiding. 
Verdict  and  judgment  of  guilty,  and  sentence  imposed  at  the  respond- 
ent's request.     The  respondents  excepted. 

MuNSON,  J.'-  Tiie  alleged  assault  was  committed  upon  Paul  Tink- 
ham,  constable  of  Rochester,  and  three  persons  acting  under  him,  while 
they  were  effecting  an  arrest  of  the  respondents  and  two  others,  with- 
out a  warrant  on  suspicion  of  felon}'.  .  .  . 

It  is  also  objected  that  the  respondents  could  not  be  convicted  of 
more  than  a  common  assault  without  the  finding  of  an  actual  intent  to 
take  life,  and  that  the  charge  permitted  the  jury  to  return  their  verdict 
without  finding  this.  It  has  been  repeatedly  held  in  cases  not  involving 
the  matter  of  arrest  that  proof  of  a  specific  intent  to  kill  is  requisite. 
The  intent  is  tiie  body  of  the  aggravated  offence.  If  death  results  from 
an  unlawful  act,  the  offender  may  be  guilty  of  murder,  even  though  he 

1  It  seems  that  Duller,  J.,  retained  the  opinion  he  had  given  the  Jury,  viz.  that 
the  case  came  within  the  statute,  because  the  Jury,  whose  sole  province  it  was  to  find 
the  intent,  had  expressly  found  that  the  intent  of  the  prisoner  was  to  wound  the 
party  by  cutting  through  her  clothes,  and  therefore  that  he  niust  have  intended  to  cut 
her  clotlies  ;  and  for  this  opinion  he  relied  upon  the  case  of  Cook  and  Woodburn,  upon 
the  statute  22  and  23  Car.  II,  c.  1,  commonly  called  the  Coventry  Act,  charging  them 
in  the  words  of  the  Act  with  an  intention  to  maim  a  Mr.  Crisp.  The  fact  of  maiming 
was  clearly  proved,  but  the  defendants  insisted  that  their  intention  was  to  murder 
him,  and  not  to  maim  him,  and  therefore  that  they  were  not  within  the  statute.  But 
Lord  King  said  that  tlie  intention  was  a  matter  of  fact  to  be  collected  from  the  cir- 
cumstances of  the  case,  and  as  such  was  proper  to  be  left  to  the  Jury  ;  and  that  if  it 
was  the  intent  of  the  prisoners  to  murder,  it  was  to  be  considered  wliether  the  means 
made  use  of  to  accomplisli  that  end  and  the  consequences  of  those  means  were  not 
likewise  in  their  intention  and  design  ;  and  the  Jury  found  them  guilty  and  they  were 
executed. —  But  it  seems  tliat  upon  a  subsequent  occasion  Willes,  J.,  and  Evre,  B., 
expressed  some  dissatisfaction  with  this  determination,  and  thought,  at  least,  that  the 
construction  ought  not  to  be  carried  further.     1  East,  400  and  424. 

2  Only  so  much  of  the  case  as  discusses  the  question  of  intent  to  kill  is  given.  — 
Ed. 


188  STATE    V.   TAYLOR.  [CHAP,  III. 

did  not  intend  to  take  life ;  but  if  the  assault,  however  dangerous,  is 
not  fatal,  the  offender  cannot  be  convicted  of  an  assault  with  intent  to 
kill  unless  the  intent  existed.  An  intent  to  take  life  may  sometimes  be 
presumed  from  the  fact  of  killing,  but  when  that  fact  does  not  exist  the 
intent  must  be  otherwise  established.  Any  inference  that  may  be  drawn 
from  the  nature  of  the  weapon  and  the  manner  of  its  use  is  an  inference 
of  fact  to  be  drawn  by  the  jury  upon  a  consideration  of  these  with  the 
other  circumstances  of  the  case.  2  Bish.  Crim.  Law,  §  741  ;  Roberts 
V.  People,  19  Mich.  401 ;  Patterson  v.  State,  85  Ga.  131 ;  21  Am.  St. 
152. 

Nor  do  we  find  any  ground  for  holding  otherwise  when  the  assault 
is  made  in  resisting  arrest.  Under  an  indictment  framed  like  this,  a 
respondent  may  be  convicted  of  an  assault  with  intent  to  kill,  or  an 
assault  with  intent  to  murder.  State  v.  Reed,  40  Vt.  603.  The  grade 
of  the  assault  will  depend  upon  whether  the  crime  would  have  been 
manslaughter  or  murder  if  death  had  ensued.  But  if  the  death  had 
resulted  from  resisting  an  authorized  arrest  properly  made,  the  crime 
would  have  been  murder,  regardless  of  the  question  of  malice.  So  if 
the  assault  charged  was  committed  in  resisting  such  an  arrest,  and  was 
found  to  have  been  made  with  intent  to  kill,  it  would  have  been  an 
assault  with  intent  to  murder.  But  in  the  case  of  either  assault  there 
must  have  been  the  intent  to  take  life.  The  elimination  from  the  in- 
quiry of  malice  as  the  distinguishing  test  between  murder  and  man- 
slaughter, and  so  between  the  two  grades  of  assaults,  does  not  eliminate 
the  question  of  specific  intent,  which  is  an  essential  element  even  of  the 
lower  offence.  The  malice  which  the  law  infers  from  resistance  to  law- 
ful arrest  does  not  cover  the  intent  to  do  a  particular  injury,  and  the 
question  of  intent  must  stand  the  same  as  in  otlier  cases. 

So  it  becomes  necessary  to  consider  whether  the  matter  of  intent  was 
properly  submitted  to  the  jury.  The  question  was  not  entirely  ignored 
by  the  court,  but  it  was  omitted  from  the  general  propositions  sub- 
mitted, and  we  think  the  charge  as  a  whole  could  not  fail  to  leave  upon 
the  minds  of  the  jury  an  impression  that  if  the  circumstances  of  the 
arrest  were  such  that  the  killing  of  the  officer  would  have  been  murder, 
the  assault  was  an  assault  with  intent  to  murder.  The  attention  of  the 
jury  was  directed  almost  exclusively  to  the  question  of  guilt  as  depend- 
ing upon  the  legality  of  the  arrest.  They  were  nowhere  distinctly  told 
that  unless  the  respondents  were  found  to  have  made  the  assault  with 
an  intent  to  take  life,  they  could  be  convicted  of  nothing  but  a  common 
assault. 


SECT.  III.]  REX   V.    SHEPPARD.  189 

REX  V.    SHEPPARD. 
Crown  Case  Reserved.     1810. 

[Reported  Russell  c^  Ryan,  169.] 

The  prisoner  was  tried  before  Mr.  Justice  Heath,  at  the  Old  Bailey 
September  sessions,  in  tlie  year  1809,  on  an  indictment  consisting  of 
four  counts. 

Tlie  first  count  charged  the  prisoner  with  forging  a  receipt  for 
£19  IGs.  6J.,  purposing  to  be  signed  by  W.  »S.  West,  for  certain  stock 
therein  mentioned,  with  intent  to  defraud  the  governors  and  company 
of  the  Banli  of  P^ngland.  The  second  count  was  for  uttering  the  same 
knowing  it  to  be  forged,  with  the  like  intent.  The  third  and  fourth 
counts  varied  from  the  first  and  second  in  charging  the  intent  to  have 
been  to  defraud  Richard  Mordey. 

It  appeared  in  evidence  at  the  trial  that  Richard  ^Mordey  gave  £20 
to  his  brother,  Thomas  Mordey,  in  the  month  of  January,  1809,  to 
buy  stock  in  the  five  per  cent  Navy. 

In  February  following  Thomas  Mordey  gave  the  £20  to  the  prisoner 
for  the  purchase  of  the  said  stock,  on  the  prisoner's  delivering  to  him 
the  receipt  stated  in  the  indictment. 

The  prisoner  being  examined  at  the  bank,  confessed  that  the  receipt 
was  a  forgery,  that  there  was  no  such  person  as  AY.  S.  West,  whose 
signature  appeared  subscribed  to  the  receipt,  and  that  he,  being 
pressed  for  money,  forged  that  name,  but  had  no  intention  of  defraud- 
ing Richard  Mordey. 

Richard  Mordey  and  Thomas  Mordey  swore  they  believed  that  the 
prisoner  had  no  such  intent. 

On  examining  the  bank  books,  no  transaction  corresponding  with 
this  could  be  found. 

The  learned  judge  told  the  jury  that  the  prisoner  was  entitled  to  an 
acquittal  on  the  first  and  second  counts,  because  the  receipt  in  ques- 
tion could  not  operate  in  fraud  of  the  governor  and  company  of  the 
bank. 

That  as  to  the  third  and  fourth  counts,  although  the  Mordeys 
swore  that  they  did  not  believe  the  forgery  to  have  been  committed 
with  an  intent  to  defraud  Richard  Mordey  ;  yet,  as  it  was  the  neces- 
sarj-  effect  and  consequence  of  the  forgery,  if  the  prisoner  could  not 
repay  the  money,  it  was  sufficient  evidence  of  the  intent  for  them  to 
convict  the  prisoner. 

The  jury  acquitted  the  prisoner  on  the  first  and  second  counts,  and 
found  him  guilty  on  the  third  and  fourth  counts  ;  and  the  learned 
judge  reserved  this  case  for  the  opinion  of  the  judges,  to  determine 
whether  this  direction  to  the  jury  was  right  and  proper. 

In  Easter  term,  31st  of  May,  1810,  all  the  judges  were  present,  and 
they  were  all  of  opinion  that  the  conviction  was  right,  that  the  imme- 
diate effect  of  the  act  was  the  defrauding  of  Richard  Mordey  of  his 
money. 


190  goke's  case.  [chap.  hi. 

/  ^y 

GORE'S   CASE. 
Crown  Case  Reserved.     1611. 

[Eeported  9  Coke,  81  a. J 

Before  Fleming,  Chief  Justice,  aud  Tanfield,  Chief  Baron,  Justices 
of  Assize,  this  case  happened  in  theii  western  circuit.  Agnes,  the 
dauo^hter  of  Roper,  married  one  Gore ;  Gore  fell  sick ;  Roper,  the 
father,  in  good-will  to  the  said  Gore  his  son-in-law  went  to  one  Dr. 
Gray,  a  physician,  for  his  advice,  who  made  a  receipt  directed  to  one 
Martin,  his  apothecary,  for  an  electuary  to  be  made,  which  the  said 
Martin  did  and  sent  it  to  the  said  Gore  ;  Agnes,  the  wife  of  Gore, 
secretl}'  mixed  ratsbane  with  the  electuar}-,  to  the  intent  therewith  to 
poison  her  husband,  and  afterward,  18  Maii,  she  gave  part  of  it  to  her 
husband,  who  eat  thereof  and  immediately  became  grievousl}-  sick  ; 
the  same  day  Roper  the  father  eat  of  it,  and  immediately  also  became 
sick;  19  Maii  C.  eat  part  of  it,  and  he  likewise  fell  sick;  but  the}'  all 
recovered,  and  yet  are  alive.  The  said  Roper,  observing  the  operation 
of  the  said  electuary,  carried  the  said  box  with  the  said  electuar}-  21 
Mail  to  the  said  Gra}'  the  physician  and  informed  him  of  the  said 
accidents,  who  sent  for  the  said  Martin  the  apothecaiy  and  asked  hi  in 
if  he  had  made  the  said  electuaiy  according  to  his  direction,  who 
answered  that  he  had  in  all  things  but  in  one,  which  he  had  not  in  his 
shop,  but  put  in  another  thing  of  the  same  operation,  which  the  said 
Dr.  Gray  well  approved  of;  whereupon  Martin  the  apothecaiy  said,  ''  To 
the  end  you  may  know  that  I  have  not  put  anything  in  it  which  I 
myself  will  not  eat,  I  will  here  before  you  eat  part  of  it,"  and  there- 
upon Martin  took  the  box,  and  with  his  knife  mingled  and  stirred  to- 
gether the  said  electuaiy,  and  took  and  eat  part  of  it,  of  which  be 
died  the  22d  day  of  May  following.  The  question  was,  if  upon  all 
this  matter  Agnes  had  committed  murder.  And  this  case  was  deliv- 
ered in  writing  to  all  the  judges  of  England  to  have  their  opinions  in 
the  case  ;  and  the  doubt  was,  because  Martin  himself  of  his  own  head, 
without  incitation  or  procurement  of  an}',  not  only  eat  of  the  said 
electuary,  but  he  himself  mingled  and  stirred  it  together,  which  mix- 
ing and  stirring  had  so  incorporated  the  poison  with  the  electuary, 
that  it  made  the  operation  more  forcible  than  the  mixture  which  the 
said  Agnes  had  made ;  for  notwithstanding  the  mixture  which 
Agnes  had  made,  those  who  eat  of  it  were  sick,  but  yet  alive,  but  the 
mixture  which  Martin  has  made  by  mingling  and  stirring  of  it  with 
his  knife,  made  the  operation  of  the  poison  more  forcible  and  was  the 
occasion  of  his  deatli.  And  if  this  circumstance  would  make  a  differ- 
ence between  this  case  and  Saunders's  case  in  Plow.  Com.  474  was 
the  question. 

And  it  was  resolved  by  all  the  judges  that  the  said  Agnes  was 
guilty  of  the  murder  of  the  said  Martin,  for  the  law  conjoins  the  mur- 


SECT.  III.]  REGINA   V.    PEMBILTON".  191 

derous  intention  of  Agnes  in  putting  the  poison  into  tlie  electuary  to 
kill  her  husband  with  the  event  which  thence  ensued,  —  sc.  the 
death  of  the  said  Martin  ;  for  the  putting  of  the  poison  into  the  elec- 
tuary is  the  occasion  and  cause,  and  the  poisoning  and  death  of  tlie 
said  Martin  is  the  event,  qtiia  eventus  est  qui  ex  causa  sequitw,  et 
dicwitar  eventus  quia  ex  causis  eveniunt,  and  the  stirring  of  the 
electuary  by  Martin  with  his  knife  without  the  putting  in  of  the  poison 
by  Agnee  could  not  have  been  the  cause  of  his  death. 

And  it  was  also  resolved  that  if  A.  puts  poison  into  a  pot  of  wine, 
&c.,  to  the  intent  to  poison  B.,  and  sets  it  in  a  place  where  he  sup- 
poses B.  will  come  and  drink  of  it,  and  by  accident  C.  (to  whom  A. 
has  no  malice)  comes  and  of  his  own  head  takes  the  pot  and  drinks  of 
it,  of  which  poison  he  dies,  it  is  murder  in  A.,  for  the  law  couples  the 
event  with  the  intention,  and  the  end  with  the  cause  ;  and  in  the  same 
case  if  C.  thinking  that  sugar  is  in  the  wine,  stirs  it  with  a  knife  and 
drinks  of  it,  it  will  not  alter  the  case  ;  for  the  King  by  reason  of  the 
putting  in  of  the  poison  with  a  murderous  intent  has  lost  a  subject ; 
and  therefore  in  law  he  who  so  put  in  the  poison  with  an  ill  and  felo- 
nious intent  shall  answer  for  it.  But  if  one  prepares  ratsbane  to  kill 
rats  and  mice,  or  other  vermin,  and  leaves  it  in  certain  places  to  that 
purpose,  and  with  no  ill  intent,  and  one  finding  it  eats  of  it,  it  is  not 
felony,  because  he  who  prepares  the  poison  has  no  ill  or  felonious  in- 
tent ;  but  when  one  prepares  poison  with  a  felonious  intent  to  kill  any 
reasonable  creature,  whatsoever  reasonable  creature  is  thereby  killed, 
he  who  has  the  ill  and  felonious  intent  shall  be  punished  for  it,  for 
he  is  as  great  an  offender  as  if  his  intent  against  the  other  person 
had  taken  effect.  And  if  the  law  should  not  be  such,  this  horrible 
and  heinous  offence  would  be  unpunished ;  which  would  be  mischievous 
and  a  great  defect  in  the  law. 


REGINA   V.    PEMBLITON. 
Crown  Case  Reserved.     1874. 

[Reported  12  Cox  C.  C.  607.] 

Case  stated  for  the  opinion  of  this  court  by  the  Recorder  of 
Wolverhamj)ton. 

At  the  Quarter  Sessions  of  the  Peace  held  at  Wolverhampton  on  the 
8th  day  of  January  instant  Henry  Pembliton  was  indicted  for  that  he 
"unlawfully  and  maliciously  did  commit  damage,  Injury,  and  spoil  upon 
a  window  in  tlie  house  of  Henry  Kirkiiam  "  contrary  to  the  provision 
of  the  Stat.  24  &  25  Vict.  c.  97,  s.  51.  This  section  of  the  statute 
enacts :  — 

"  Whosoever  shall  unlawfully  and  maliciously  commit  any  damage, 
injury,  or  spoil  to  or  upon  any  real  or  personal  property  whatsoever, 


X92  KEGINA  V.    PEMBILTON.  [CHAP.  III. 

either  of  a  public  or  a  private  nature,  for  which  no  punishment  is 
hereinbefore  provided,  the  damage,  injury,  or  spoil  being  to  an  amount 
exceeding  £5,  sliall  be  guilty  of  a  misdemeanor,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with  or  without  hard  labor ;  and 
in  case  any  such  offence  shall  be  committed  between  the  hours  of  nine 
of  the  clock  in  the  evening  and  six  of  the  clock  in  the  next  morning,  he 
shall  be  liable  at  the  discretion  of  the  court  to  be  kept  in  peual  servi- 
tude for  any  term  not  exceeding  five  years,  and  not  less  than  three,  or 
to  be  imprisoned  for  any  terra  not  exceeding  two  years,  with  or  without 
hard  labor." 

On  the  night  of  the  6th  day  of  December,  1873,  the  prisoner  was 
drinking  with  others  at  a  public-house  called  "The  Grand  Turk"  kept 
by  the  prosecutor.  About  eleven  o'clock  p.  m.  the  whole  party  were 
turned  out  of  the  house  for  being  disorderly,  and  they  then  began  to 
fight  in  the  street  and  near  the  prosecutor's  window,  where  a  crowd 
of  from  forty  to  fifty  persons  collected.  The  prisoner,  after  fighting 
some  time  with  persons  in  the  crowd,  separated  himself  from  them,  and 
removed  to  the  other  side  of  the  street,  where  he  picked  up  a  large 
stone  and  threw  it  at  the  persons  he  had  been  fighting  with.  The  stone 
passed  over  the  heads  of  those  persons,  and  struck  a  large  plate-glass 
window  in  the  prosecutor's  house,  and  brok6  it,  thereby  doing  damage 
to  the  extent  of  £7  12s.  9d. 

The  jury,  after  hearing  evidence  on  both  sides,  found  that  the  pris- 
oner threw  the  stone  which  broke  the  window,  but  that  he  threw  it  at 
the  people  he  had  been  figliting  with,  intending  to  strike  one  or  more  of 
them  with  it,  but  not  intending  to  break  the  window  ;  and  the}'  returned 
a  verdict  of  "guilt}',"  whereupon  I  respited  the  sentence,  and  admitted 
the  prisoner  to  bail,  and  pray  the  judgmant  of  the  Court  for  Crown 
Cases  Reserved,  wliether  upon  the  facts  stated  and  the  finding  of  the 
jury,  the  prisoner  was  rightly  convicted  or  not. 

(Signed)  Jonx  J.  Powell, 

Recorder  of  Wolverhampton. 

No  counsel  appeared  to  argue  for  the  prisoner. 

«/".  Underhill,  for  the  prosecution.^ 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  this  conviction  must 
be  quashed.  The  facts  of  the  case  are  these.  The  prisoner  and  some 
other  persons  who  had  been  drinking  in  a  public-house  were  turned  out 
of  it  at  about  eleven  p.  m.  for  being  disorderly,  and  they  then  began  to 
fight  in  the  street  near  the  prosecutor's  window.  The  prisoner  sepa- 
rated himself  from  the  others,  and  went  to  the  other  side  of  the  street, 
and  picked  up  a  stone,  and  threw  it  at  the  persons  he  had  been  fighting 
with.  The  stone  passed  over  their  heads,  and  broke  a  large  plate-glass 
window  in  the  prosecutor's  house,  doing  damage  to  an  amount  exceed- 
ing £5.     The  jury  found  that  the  prisoner  threw  the  stone  at  the  people 

^  The  armiment  is  omitted. 


SECT.  III.]  -  REGINA   V.   PEMBILTON,  193 

he  had  been  fi<jhting  with,  inten(hng  to  strike  one  or  more  of  them  with  it, 
but  not  intending  to  break  the  window.  The  question  is  whether  under 
an  indictment  for  unlawfully  and  maliciously  committing  an  injury  to 
tlie  window  in  the  Iiouse  of  the  prosecutor,  the  proof  of  these  facts  alone, 
coupled  with  the  finding  of  the  jury,  will  do.  Xow  I  think  that  is  not 
enough.  The  indictment  is  framed  under  the  24  &  25  Vict.  c.  97,  s.  51. 
The  Act  is  an  Act  relating  to  maliciousjnjuries  to  property,  and  section 
51  enacts  that  whosoever  shall  unlawfully  and  maliciously  commit  any 
damage,  &e.,  to  or  upon  any  real  or  personal  property  whatsoever  of  a 
public  or  a  private  nature,  for  which  no  punishment  is  hereinbefore 
provided,  to  an  amount  exceeding  £5,  shall  be  guilty  of  a  misdemeanor. 
There  is  also  the  58th  section  which  deserves  attention.  "  Every  pun- 
ishment and  forfeiture  by  this  Act  imposed  on  any  person  maliciously 
committing  any  offence,  whether  the  same  be  punishable  upon  indict- 
ment or  upon  summary  conviction,  shall  equally  apply  and  be  enforced, 
whether  the  offence  shall  be  committed  from  malice  conceived  against 
the  owner  of  the  property  in  respect  of  which  it  shall  be  committed, 
or  otherwise."  It  seems  to  me  on  both  these  sections  that  what  was 
intended  to  be  provided  against  by  the  Act  is  the  wilfully  doing  an 
unlawful  act,  and  tliat  the  act  must  be  wilfully  and  intentionally  dC)ne 
on  the  part  of  the  person  doing  it,  to  render  him  liable  to  be  convicted. 
Without  saying  that,  upon  these  facts,  if  the  jury  had  found  that  the 
prisoner  had  been  guilty  of  throwing  the  stone  recklessly,  knowing  that 
there  was  a  window  near  which  it  might  probably  hit,  I  should  have 
been  disposed  to  interfere  wuth  the  conviction,  yet  as  they  have  found 
that  he  threw  the  stone  at  the  people  he  had  been  figliting  with,  intend- 
ing to  strike  them  and  not  intending  to  break  the  window,  I  think  the 
conviction  must  be  quashed.  I  do  not  intend  to  throw  any  doubt  on 
the  cases  which  have  been  cited,  and  which  show  what  is  sufficient  to 
constitute  malice  in  the  case  of  murder.  They  rest  upon  the  princi- 
ples of  the  common  law,  and  have  no  application  to  a  statutory  oflence 
created  by  an  Act  in  which  the  words  are  caret\dly  studied. 

Blackburn,  J.  I  am  of  the  same  opinion,  and  I  quite  agree  that  it 
is  not  necessary  to  consider  what  constitutes  wilful  malice  aforethought 
to  bring  a  case  within  the  common  law  crime  of  murder,  when  we  are 
construing  this  statute,  which  says  that  whosoever  shall  unlawfully  and 
maliciousfy  commit  any  damage  to  or  upon  any  real  or  personal  prop- 
erty to  an  amount  exceeding  £5,  shall  be  guilty  of  a  misdemeanor. 
A  person  may  be  said  to  act  maliciously  when  he  wilfully  does  an 
unlawful  act  without  lawful  excuse.  Tlie  question  here  is,  Can  the 
prisoner  be  said,  when  he  not  only  threw  the  stone  unlawfully,  but 
broke  the  window  nnintenitionally,  to  have  unlawfully  and  maliciously 
broken  the  window?  I  think  that  there  was  evidence  on  which  the  jury 
might  have  found  that  he  unlawfully  and  maliciously  broke  the  window, 
if  tliey  had  found  that  the  prisoner  was  aware  that  the  natural  and 
probable  consequence  of  his  throwing  the  stone  was  that  it  might  break 
the  glass  window,  on  the  principle  that  a  man  must  be  taken  to  intend 

13 


194  KEGINA   V.    FAULKNER.  [CHAP.  III. 

what  is  the  natural  and  probable  consequence  of  his  acts.  But  the  jury 
have  not  found  that  the  prisoner  threw  the  stone,  knowing  that,  on  the 
other  side  of  the  men  he  was  throwing  at,  there  was  a  glass  window, 
and  that  he  was  reckless  as  to  whether  he  did  or  did  not  break  the 
window.  On  the  contrary,  they  have  found  that  he  did  not  intend  to 
break  the  window.  I  think  therefore  that  the  conviction  must  be 
quashed. 

PiGOTT,  B.     I  am  of  the  same  opinion. 

Lush,  J.  I  also  think  tliat  on  this  finding  of  the  jury  we  have  no 
alternative  but  to  hold  that  the  conviction  must  be  quashed.  The  word 
"  maliciously  "  means  an  act  done  either  actually  or  constructively  with 
a  malicious  intention.  The  jury  might  have  found  that  he  did  intend 
actually  to  break  the  window,  or  constructively  to  do  so,  as  that  he 
knew  that  the  stone  might  probably  break  it  when  he  threw  it.  But 
they  have  not  so  found. 

Cleasbt,  B.,  concurred.  Conviction  quashed. 


REGINA   V.   FAULKNER. 
Crown  Case  Reserved,  Ireland.     1877. 

[Reported  13  Cox  C.  C.  550] 

Case  reserved  by  Lawson,  J.,  at  the  Cork  Summer  Assizes,  1876. 
The  prisoner  was  indicted  for  setting  fire  to  the  ship  "  Zemindar,"  on 
the  high  seas,  on  the  26th  day  of  June,  1876.  The  indictment  was  as 
follows:  "That  Robert  Faulkner,  on  the  26th  day  of  June,  1876,  on 
board  a  certain  ship  called  the  '  Zemindar,'  tlie  property  of  Sandback, 
Tenne,  and  Co.,  on  a  certain  voyage  on  the  high  seas,  then  being  on 
the  high  seas,  felonioush',  unlawfully,  and  maliciously,  did  set  fire  to  the 
said  ship  '  with  intent  thereby  to  prejudice  the  said  '  (these  words  were 
struck  out  at  the  trial  by  the  learned  judge,  and  the  following  words 
inserted,  'called  the  "Zemindar,"  the  property  of)  Sandback,  Tenne, 
and  Co.,  and  that  the  said  Robert  Faulkner,  on  the  day  and  year  afore- 
said, on  board  a  certain  ship  called  the  '  Zemindar,'  being  the  property 
of  Sandback,  Parker,  and  other,  on  a  certain  voyage  on  the  high  seas, 
then  being  upon  the  high  seas,  felonioush',  unlawfully,  and  maliciously, 
did  set  fire  to  the  said  ship,  with  intent  thereby  to  prejudice  the  said 
Sandback,  Parker,  and  other,  the  owners  of  certain  goods  and  chattels 
then  laden,  and  being  on  board  said  ship."  It  was  proved  that  the 
"  Zemindar"  was  on  her  voyage  home  with  a  cargo  of  rum,  sugar,  and 
cotton,  worth  £.50,000.  That  the  prisoner  was  a  seaman  on  board,  that 
he  went  into  the  forecastle  hold,  opened  the  sliding  door  in  the  bulk- 
head, and  so  got  into  the  hold  where  the  rum  was  stored  ;  he  had  no 
business  there,  and  no  authority  to  go  there,  and  went  for  the  purpose 
of  stealing  some  rum ;  that  he  bored  a  hole  in  the  cask  with  a  gimlet ; 
that  the  rum  ran  out ;  that  when  trying  to  put  a  spile  in  the  hole  out  of 


SECT.  III.]  ■    EEGINA    V.   FAULKNER.  195 

which  the  rum  was  running  he  had  a  lighted  match  in  his  hand  ;  that 
the  rum  caught  fire  ;  that  the  prisoner  himself  was  burned  on  the  arms 
and  neck  ;  and  that  the  ship  caught  fire  and  was  completely  destro^-ed. 
At  the  close  of  the  case  for  the  Crown,  counsel  for  the  prisoner  asked 
for  a  direction  of  an  acquittal  on  the  ground  that  on  the  facts  proved 
the  indictment  was  not  sustained,  nor  the  allegation  that  the  prisoner 
had  unlawfuU}-  and  maliciousl}'  set  fire  to  the  ship  proved.  The  Crown 
contended  that  inasmuch  as  the  prisoner  was  at  the  time  engaged  in 
the  commission  of  a  felony,  tlie  indictment  was  sustained,  and  the 
allegation  of  the  intent  was  immaterial. 

At  the  second  hearing  of  the  case,  before  the  Court  for  Crown  Cases 
Reserved,  the  learned  judge  made  the  addition  of  the  follownig  para- 
graph to  the  case  stated  by  him  for  the  court. 

"  It  was  conceded  that  the  prisoner  had  no  actual  intention  of  burn- 
ing the  vessel,  and  I  was  not  asked  to  leave  any  question  to  the  jurv 
as  to  the  prisoner's  knowing  the  probable  consequences  of  his  act,  or 
as  to  his  reckless  conduct." 

The  learned  judge  tokl  the  jury  that  although  the  prisoner  had  no 
actual  intention  of  burning  the  vessel,  still  if  they  found  he  was  en- 
gaged in  stealing  the  rum,  and  that  the  fire  took  place  in  the  manner 
above  stated,  the}-  ought  to  find  him  guilty.  The  jurj'  found  the  pris- 
oner guilty  on  both  counts,  and  he  was  sentenced  to  seven  years'  penal 
servitude.  The  question  for  the  court  was  whether  the  direction  of  the 
learned  judge  was  right ;  if  not,  the  conviction  should  be  quashed.^ 

Peter  O'Brien,  for  the  prisoner. 

The  Attorney  General  (May),  with  him  Green,  Q.  C,  for  the  Crown.'^ 

O'Bhien,  J.^  I  am  also  of  opinion  that  the  conviction  should  be 
quashed,  and  I  was  of  that  opniion  before  the  case  for  our  consideration 
was  amended  by  ni}'  brother  Lawson.  I  had  inferred  from  the  original 
case  that  his  direction  to  the  jur}-  was  to  the  effect  now  expressly  stated 
by  amendment,  and  that,  at  the  trial,  the  Crown's  counsel  conceded 
that  the  prisoner  had  no  intention  of  burning  the  vessel,  or  of  ignit- 
ing the  rum  ;  and  raised  no  questions  as  to  prisoner's  imagining  or 
having  any  ground  for  supposing  that  the  fire  would  be  the  result  or 
consequence  of  his  act  in  stealing  the  rum.  With  respect  to  Reg.  v. 
Pembliton,  12  Cox  C.  C.  607,  it  appears  to  me  there  were  much  stronger 
grounds  in  that  case  for  upholding  the  conviction  than  exist  in  the  case 
before  us.  In  that  case  the  breaking  of  the  window  was  the  act  of  the 
prisoner.  He  threw  the  stone  that  broke  it ;  he  threw  it  with  the  un- 
lawful intent  of  striking  some  one  of  the  crowd  about,  and  the  breaking 
of  the  window  was  the  direct  and  immediate  result  of  his  act.     And  yet 

1  24  &  25  Vict.  c.  97,  s.  42,  "Whoever  shall  unlawfully  and  maliciously  set  fire  to, 
cast  away,  or  in  anywise  destroy  any  ship  or  vessel  .   .  .  shall  be  guilty  of  felony." 

^  Arguments  of  counsel  are  omitted. 

*  Concurring  opinions  of  Barry  and  Fitzgerald,  JJ.,  and  Fitzgerald,  B.,  and 
the  dissenting  opinion  of  Keogh,  J.  are  omitted.  Dowse  and  Deasy,  BB.,  and 
Lawson,  J.  also  concurred.  —  Ed. 


196  BEGIN  A   V.   FAULKNER.  [CHAr.  III. 

the  court  unanimouslv  quashed  the  conviction  upon  the  ground  that, 
nlthou'Th  the  prisoner  threw  the  stone  intending  to  strike  some  one  or 
more  persons,  he  did  not  intend  to  break  the  window.     Tlie  courts 
above  have  intimated  their  opinion  that  if  the  jury,  upon  a  question  to 
th'it  effect  beino-  left  to  them,  had  found  that  the  prisoner,  knowing  the 
window  was  there,  might  have  reasonably  expected  that  the  result  of 
his  act  wouhl  be  the  breaking  of  the  window,  that  then  the  conviction 
should  be  uplield.     During  the  argument  of  this  case  the  Crown  counsel 
required  us  to  assume  that  the  jury  found  their  verdict  upon  the  ground 
that  in  their  opinion  the  prisoner  may  have  expected  that  the  fire  would 
be  the  consequence  of  his  act  in  stealing  the  rum,  but  nevertheless  did 
the  act  recklesslv,  not  caring  whether  the  fire  took  place  or  not.     But 
at  the  trial  there  was  not  even  a  suggestion  of  any  such  ground,  and 
we  cannot  assume  that  the  jury  formed  an  opinion  which  there  w^as  no 
evidence  to  sustain,  and  which  would  be  altogether  inconsistent  with 
the  circumstances  under  which  the  tire  took   place.     The   reasonable 
inference  from  the  evidence  is  that  the  prisoner  lighted  the  match  for 
the  purpose  of  putting  the  spile  in  the  hole  to  stop  the  further  running 
of  the  rum,  and  that  while  he  was  attempting  to  do  so,  the  rum  came  in 
contact  with  the  lighted  match  and  took  tire.     The  recent  case  of  Reg. 
V.  Welch,  13  Cox  C.  C.  121,  has  been  also  referred  to,  and  has  been 
relied  on  by  the  Crown  counsel  on  the  gi'ound  that,  though  the  jury 
found  that  the  prisoner  did  not,  in  fact,  intend  to  kill,  maim,  or  wound 
the  mare  that  had  died  from  the  injury  inflicted  by  the  prisoner,  the 
prisoner  was,  nevertheless,  convicted  on  an  indictment  charging  him 
with  having  unlawfully  and  maliciously  killed,  maimed,  or  wounded  the 
mare,  and  such  conviction  was  ui)held  by  the  court.     But  on  referring 
to  the  circumstances  of  that  case  it  will  be  seen  that  the  decision  in  it 
does  not  in  any  way  conflict  with  that  in  the  previous  case  of  Reg.  v. 
Pemblilon,  and  furnishes  no  ground  for  sustaining  the  present  convic- 
tion.    Mr.  Justice  Lindle\-,  who  tried  that  subsequent  case,  appears  to 
have  acted  in  accordance  with  the  opinion  expressed  by  the  judges  in 
Reg.  V.  Peml)liton.    Besides  leaving  to  the  jury  the  question  of  prisoner's 
intent,  he  also  left  them  a  second  question,  namely,  whether  the  pris- 
oner, when  he  did  the  act  complained  of,  knew  tliat  what  he  was  doing 
would  or  might  kill,  maim,  or  wound  the  mare,  and  nevertheless  did  the 
act  recklessly,  and  not  caring  whether  the  mare  was  injured  or  not. 
The  jury  answered   that  second  question   in  the   affirmative.      Their 
tinding  was  clearly  warranted  by  the  evidence,  and  the  conviction  was 
properly  affirmed.      By  those  two  questions  a  distinction  was  taken 
between  the  case  of  an  act  done  by  a  party  with  the  actual  intent  to 
cause  the  injury  inflicted,  and  the  case  of  an  act  done  by  a  party  know- 
ing or  believing  that  it  would  or  might  cause  such  injury,  but  reckless 
of  the  result  whether  it  did  or  did  not.     In  the  case  now  before  us  there 
was  no  ground  whatever  for  submitting  to  the  jury  any  question  as  to 
the  prisoner  believing  or  supposing  that  the  stealing  of  the  rum  would 
be  attended  with  a  result  so  accidental  and  so  dangerous  to  himself 


SECT.  III.]  ■    REGINA   V.    FAULKNER.  .  197 

During  the  argument  doubts  were  suggested  as  to  the  soundness  of  the 
decision  in  Keg.  v.  Pemblitou  ;  but  in  im*  opinion  that  case  was  rightly 
decided,  and  should  be  followed.  Its  authority  was  not  questioned  in 
Keg.  V.  Welch,  in  which  the  judges  who  constituted  the  court  were 
different  from  those  who  had  decided  Reg.  t'.  Pembliton,  with  the  excep- 
tion of  Lord  Coleridge,  who  delivered  the  judgments  of  tlie  court  on 
both  occasions. 

Palles,  C.  B.  I  concur  in  the  opinion  of  the  majority  of  the  court, 
and  I  do  so  for  the  reasons  already  stated  by  m}-  brother  Fitzgerald. 
I  agree  with  my  brother  Keogh  that  from  the  facts  proved  the  inference 
might  have  been  legitimatelv  drawn  that  the  setting  fire  to  the  ship 
was  malicious  within  the  meaning  of  the  24  &  25  Vict.  c.  97.  I  am  of 
opinion  that  that  inference  was  one  of  fact  for  the  jury,  and  not  a  con- 
clusion of  law  at  which  we  can  arrive  upon  the  case  before  us.  There 
is  one  fact  from  which,  if  found,  that  inference  would,  in  my  opinion, 
have  arisen  as  matter  of  law,  as  that  the  setting  fire  to  the  ship  was  the 
probable  result  of  the  prisoner's  act  in  having  a  lighted  match  in  the 
place  in  question  ;  and  if  that  had  been  found  I  should  have  concurred 
in  the  conclusion  at  which  Mr.  Justice  Keogh  has  arrived.  In  my 
judgment  the  law  imputes  to  a  person  who  wilfully  commits  a  criminal 
act  an  intention  to  do  everything  which  is  the  probable  consequence  of 
the  act  constituting  the  coiyus  delicti  which  actually  ensues.  In  ui}- 
opinion  this  inference  arises  irrespective  of  the  particular  consequence 
which  ensued  being  or  not  being  foreseen  by  the  criminal,  and  whether 
his  conduct  is  reckless  or  the  reverse.  This  much  I  have  deemed  it 
riglit  to  say  to  prevent  misconception  as  the  grounds  upon  which  my 
opinion  is  based.  I  wish  to  add  one  word  as  to  Reg.  v.  Pembliton,  12 
Cox  C.  C.  607.  In  my  opinion  the  learned  judges  who  were  parties  to 
that  decision  never  intended  to  decide,  and  did  not  decide,  anything 
contrary  to  the  views  I  have  expressed.  That  they  did  not  deem  actual 
intention,  as  distinguished  from  implied  intention,  essential  is  shown 
by  the  subsequent  case  of  Reg.  v.  Welch,  in  which  an  indictment  under 
the  40th  section  of  the  same  Act  was  upheld,  although  actual  intention 
was  negatived  by  the  jury.  The  facts  found  in  answer  to  the  second 
question  in  that  case  cannot  haA'e  been  relied  upon  as  evidence  of 
actual  intention.  As  evidence  they  would  have  been  valueless  in  face 
of  the  finding  negativing  the  fact  which  in  this  view  they  would  have 
but  tended  to  prove.  Their  value  was  to  indicate  a  state  of  facts  in 
which  intention  was  imputed  by  an  irrefutable  inference  of  law.  It  was 
not  germane  to  the  actual  decisions  in  Reg.  v.  Pembliton  and  Reg.  v. 
Welch  to  determine  whether  the  state  of  facts  from  which  this  inference 
of  law  arises  is  that  suggested  in  the  first  case  and  acted  upon  by  the 
second,  or  the  circumstance  of  one  act  being  the  natural  consequence 
of  the  other.  Some  of  the  learned  judges,  no  doubt,  during  the  argu- 
ments and  in  their  judgments  in  the  first  case  indicate  a  state  of  facts 
from  which  this  inference  would  arise.  The}'  do  not  decide  that  the 
same  inference  might  not  arise  in  the  other  state  of  facts  to  which  J 


198  REGINA   V.    LATIMER.  [CHAP.  III. 

have  alluded.  If,  contrary  to  my  own  view  of  that  case,  it  shall  be  held 
to  involve  that  intention  to  do  that  which  is  a  necessary  consequence 
of  a  wrongful  act  wilfully  committed  is  not  an  inference  irrefutable  as 
matter  of  law,  I  must  say,  with  unfeigned  deference,  that  I  shall  hold 
myself  free  hereafter  to  decline  to  follow  it.  The  Lord  Chief  Justice 
of  the  Common  Pleas,  who,  in  consequence  of  illness,  has  been  unable 
to  preside  to-day,  has  authorized  me  to  state  that  he  considers  that  the 
case  before  us  is  concluded  by  Reg.  v.  Pembliton. 

Conviction  quashed. 


/  SO 

REGINA  V.   LATIMER. 
Crown  Case  Reserved.     1886. 

[Reported  16  Cox  C.  C.  70.] 

Case  stated  by  the  learned  Recorder  for  the  borough  of  Devonport 
as  follows :  — 

The  prisoner  was  tried  at  the  April  Quarter  Sessions  for  the  borough 
of  Devonport  on  the  10th  day  of  April,  1886. 

The  prisoner  was  indicted  for  unlawfully  and  maliciously  wounding 
Ellen  Rolston.  There  was  a  second  count  charging  him  with  a  com- 
mon assault. 

The  evidence  showed  that  the  prosecutrix,  Ellen  Rolston,  kept  a 
public-house  in  Devonport ;  that  on  Sunday,  the  14th  day  of  February, 
1886,  the  prisoner,  who  was  a  soldier,  and  a  man  named  Horace 
Chappie  were  in  the  public-house,  and  a  quarrel  took  place,  and  event- 
ually the  prisoner  was  knocked  down  by  the  man  Horace  Chappie. 
The  prisoner  subsequently  went  out  into  a  yard  at  the  back  of  the 
house.  In  about  five  minutes  the  prisoner  came  back  hastily  through 
the  room  in  which  Chappie  was  still  sitting,  having  in  his  hand  his 
belt  which  he  had  taken  off.  As  the  prisoner  passed  he  aimed  a  blow 
with  his  belt  at  the  said  Horace  Chappie,  and  struck  him  slightly  ; 
the  belt  bounded  off  and  struck  the  prosecutrix,  who  was  standing 
talking  to  the  said  Horace  Chappie,  in  the  face,  cutting  her  face  open 
and  wounding  her  severely. 

At  the  close  of  the  case  the  learned  Recorder  left  these  questions  to 
the  jury :  1.  Was  the  blow  struck  at  Chappie  in  self-defence  to  get 
through  the  room,  or  unlawfully  and  maliciously?  2.  Did  the  blow  so 
struck  in  fact  wound  Ellen  Rolston?  3.  Was  the  striking  Ellen 
Rolston  purely  accidental,  or  was  it  such  a  consequence  as  the  pris- 
oner should  have  expected  to  follow  from  the  blow  he  aimed  at 
Chappie? 

The  jury  found:  1.  That  the  blow  was  unlawful  and  malicious. 
2.  That  the  blow  did  in  fact  wound  Ellen  Rolston.  3.  That  the  strik- 
ing Ellen  Rolston  was  purely  accidental,  and  not  such  a  consequence 
of  the  blow  as  the  prisoner  ought  to  have  expected. 


SECT.  III.]  ■     REGINA   V.    LATIMER,  199 

Upon  these  findings  the  learned  Recorder  directed  a  verdict  of 
guilt\'  to  be  entered  to  the  first  count,  but  respited  judgment,  and 
admitted  the  prisoner  to  bail,  to  come  up  for  judgment  at  the  next 
sessions. 

The  question  for  tlie  consideration  of  the  court  was,  whether  upon 
the  facts  and  the  findings  of  the  jur}-  the  prisoner  was  rightly  con- 
victed of  the  offence  for  which  he  was  indicted. 

By  sect.  20  of  24  &  25  Vict.  c.  100,  it  is  enac^ted  that,  "  Whosoever 
shall  unlawfully  and  maliciously  wound  or  inflict  any  grievous  bodily 
harm  upon  an}-  other  person,  either  with  or  without  any  weapon  or 
instrument,  shall  be  guilt}-  of  misdemeanor." 

Croft  for  the  prisoner.^ 

Ilelpman,  for  the  prosecution,  was  not  called  upon. 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  this  conviction  must 
be  sustained.  In  the  first  place,  it  is  common  knowledge  that,  if  a 
person  has  a  malicious  intent  towards  one  person,  and  in  carrying  into 
effect  that  malicious  intent  he  injures  another  man,  he  is  guilty  of 
what  the  law  considers  malice  against  the  person  so  injured,  because 
he  is  guilty  of  general  malice ;  and  is  guilt}-  if  the  result  of  his  unlaw- 
ful act  be  to  injure  a  particular  person.  That  would  be  the  law  if  the 
case  were  res  Integra;  but  it  is  not  res  integra  because,  in  Reg.  v. 
Hunt,  a  man  in  attempting  to  injure  A.  stabbed  the  wrong  man. 
There,  in  point  of  fact,  he  had  no  more  intention  of  injuring  B.  than 
a  man  has  an  intent  to  injure  a  particular  person  who  fires  down  a 
street  where  a  number  of  persons  are  collected,  and  injures  a  person 
he  never  heard  of  before.  But  he  had  an  intent  to  do  an  unlawful  act, 
and  in  carrying  out  that  intent  he  did  injure  a  person  ;  and  the  law 
says  that,  under  such  circumstances,  a  man  is  guilty  of  maliciously 
wounding  the  person  actually  wounded.  That  would  be  the  ordinary 
state  of  the  law  if  it  had  not  been  for  the  case  of  Reg.  v.  Pembliton. 
But  I  observe  that,  in  such  an  indictment,  as  in  that  case,  the  words 
of  the  statute  carry  the  case  against  the  prisoner  more  clearly  still, 
because,  by  sect.  18  of  the  statute  24  &  25  Vict.  c.  100,  it  is  enacted 
that :  "  Whosoever  shall  unlawfully  and  maliciously  by  any  means 
whatsoever  wound  .  .  .  any  person  .  .  .  w-ith  intent  ...  to  maim, 
disfigure,  or  disable  any  person  .  .  .  shall  be  guilty  of  felony  ; "  and 
then  sect.  20  enacts  that  "  whosoever  shall  unlawfully  and  maliciously 
wound  .  .  .  any  other  person  .  .  .  shall  be  guilty  of  a  misdemeanor ; " 
and  be  liable  to  certain  punishments.  Therefore,  the  language  of  the 
18th  and  20th  sections  are  perfectly  different;  and  it  must  be  remem- 
bered that  this  is  a  conviction  for  an  offence  under  the  20th  section. 
Now,  the  Master  of  the  Rolls  has  pointed  out  that  these  very  sections 
are  in  substitution  for  and  correction  of  the  earlier  statute  of  9  Geo.  4, 
c.  31,  where  it  was  necessary  that  the  act  should  have  been  done  with 
intent  to   maim,  disfigure,  or  disable  such  person,   showing  that  the 

^  The  arsumeut  is  omitted. 


200  REGINA    V.    LATIMER.  -  [CIIAP.  III. 

intent  must  have  been  to  injure  the  person  actually  injured.  Those 
words  are  left  out  in  the  later  statute,  and  the  words  are  "  wound  an}- 
other  person."  I  cannot  see  that  there  could  be  any  question,  but  for 
the  case  of  Reg.  v  Pembliton.  Now,  I  think  that  that  case  was  prop- 
erly decided  ;  but  upon  a  ground  which  renders  it  clearly  distinguish- 
able from  the  present  case.  That  is  to  say,  the  statute  which  was 
under  discussion  in  Reg.  v.  Pembliton  makes  an  unlawful  injury  to 
property  punishable  in  a  certain  way.  In  that  case  the  jury  and  the 
facts  expressly  negatived  that  there  was  any  intent  to  injure  any  prop- 
erty at  all ;  and  the  court  held  tliat,  in  a  statute  which  created  it  an 
offence  to  injure  property,  there  must  be  an  intention  to  injure  property 
in  order  to  support  an  indictment  under  that  statute.  But  for  that 
case  Mr.  Croft  is  out  of  court,  and  I  therefore  think  that  this  convic- 
tion should  be  sustained. 

Lord  Eshek,  M.  R.  I  am  of  the  same  opinion.  It  seems  to  me 
that  the  case  of  Reg.  v.  Pembliton  is  the  only  case  which  could  be 
cited  against  a  well-known  principle  of  law.  But  that  case  shows  that 
there  was  no  intention  to  injure  any  property-  at  all ;  therefore  there 
was  no  intent  to  commit  the  crime  mentioned  in  the  Act. 

BowEN,  L.  J.  I  am  also  of  opinion  that  this  conviction  should  be 
aflirmed.  It  is  quite  clear  that  this  offence  was  committed  without  any 
malice  in  the  mind  of  the  prisoner,  and  that  he  had  no  intention  of 
wounding  Ellen  Rolston.  The  only  difficulty  that  arises  is  from  Reg. 
V.  Pembliton,  which  was  a  case  under  an  Act  of  Parliament  which 
does  not  deal  with  all  malice  in  general,  but  with  malice  towards  prop- 
erty ;  and  all  that  case  holds  is,  that  though  the  prisoner  would  have 
been  guilty  of  acting  maliciously  W'ithin  the  common  law  meaning  of 
the  term,  still  he  was  not  guilty  of  acting  maliciously  within  the  mean- 
ing of  a  statute  which  requires  a  malicious  intent  to  injure  propert}'. 
Had  the  prisoner  meant  to  strike  a  pane  of  glass,  and  without  any 
reasonable  expectation  of  doing  so  injured  a  person,  it  might  be  said 
that  the  malicious  intent  to  injure  property  was  not  enough  to  sustain 
a  prosecution  under  this  statute.  But,  as  the  jury  found  that  the 
])risoner  intended  to  wound  Chappie,  I  am  of  opinion  that  he  acted 
maliciously  within  the  meaning  of  this  statute. 

Field,  J.  I  am  also  of  opinion  that  this  conviction  must  be  af- 
firmed, I  tiiink  this  a  very  important  case  and  one  of  verj*  wide 
application,  and  am  very  glad  that  it  has  come  before  this  court,  and 
has  been  carefully  considered  and  decided  so  that  there  may  be  no 
doubt  about  the  matter. 

Manisty,  J.  I  do  not  propose  to  add  more  than  a  few  words.  The 
facts  in  this  case  raise  an  exceedingl3'  important  question,  because  the 
man  Chappie,  who  was  intended  to  be  struck,  was  standing  close  by 
the  woman  who  was  wounded,  and  who  was  talking  to  him  ;  and  the 
prisoner  mtending  to  strike  Chappie  with  the  belt  did  strike  him,  but 
the  belt  bounded  off  and  struck  Ellen  Rolston.  It  seems  to  me  that 
the  first  and  second  findings  of  the  jury  justify  the  conviction,  because 


SECT.  III.]  ■  KEX   V.   KNIGHT.  201 

they  are  in  these  terms  :  "  The  jiuT  found  that  the  blow  was  unlawful 
and  malicious,  and  that  it  did  in  fact  wound  Ellen  Rulston  ;  "  and  that 
being  so,  I  think  that  the  third  finding  does  not  entitle  the  prisoner  to 
an  acquittal.  It  is  tine  he  did  not  intend  to  strike  Ellen  Rolston,  but 
he  did  intend  to  strike  Chappie,  and  in  doing  so  wounded  Ellen  Rols- 
ton ;  therefore  I  think  that  the  tliird  finding  is  quite  immaterial,  and 
this  conviction  should  be  affirmed.^ 

Conviction  affirmed. 


REX  V.  KNIGHT. 
Crown  Case  Reserved.     1782. 

[Reported  2  East,  Pleas  of  the  Crown,  510.] 

The  prisoners  were  indicted  for  feloniously  and  burglariously  break- 
ing and  entering  the  dwelling-house  of  Mary  Snelling  at  East  Grin- 
stead,  in  the  night  of  November  14,  1781,  with  intent  to  steal  the  goods 
Jj      of  Leonard  Hawkins,  then  and  there  being  in  the  said  dwelling-house. 

{'  It  appeared  that  L.  Hawkins,  being  an  excise  oflficer,  had  seized  seven- 

teen bags  of  tea  on  the  same  month  at  a  Mrs.  Tilt's,  in  a  shop  entered 
in  the  name  of  Smith,  as  being  there  without  a  legal  permit,  and  had 
removed  the  same  to  Mrs.  Snelling's  at  East  Grinstead,  where  Hawkins 
lodged.  The  tea,  the  witnesses  said,  they  supposed  to  belong  to  Smith  ; 
and  that  on  the  night  of  November  14  the  prisoners  and  divers  other 
/       persons  broke  open  the  house  of  Mary  Snelling  with  intent  to  take  this 

,r  jj  tea.  It  was  not  proved  that  Smith  was  in  company  with  them  ;  but 
the  witnesses  swore  that  they  supposed  the  fact  was  committed  either 
in  company  with  or  by  the  procurement  of  Smith,  The  jury  were  di- 
rected to  find  the  prisoners  guilty,  on  the  point  being  reserved  ;  and 
being  also  directed  to  find  as  a  fact  with  what  intent  the  prisoners  broke 
and  entered  the  house,  they  found  that  they  intended  to  take  tlie 
goods  on  the  behalf  of  Smith.  In  Easter  term  following  all  the  judges 
held  that  the  indictment  was  not  supported,  there  being  no  intention  to 
steal,  however  outrageous  the  behavior  of  the  prisoners  was  in  thus 
endeavoring  to  get  back  the  goods  for  Smith.- 

1  See  ace.  (woundiuoj  with  intent  to  do  bodily  harm)  Reg.  v.  Lynch,  1  Cox  C.  C. 
361  ;  Reg.  v.  Stofford,  II  Cox  C.  C.  643;  (with  intent  to  kill)  Reg.  v.  Smith,  7  Cox 
C.  C.  51.  — Ed. 

2  Acc.  Com.  V.  Newell,  7  Mass.  245.  —  Ed. 


202  UNITED   STATES    V.    DAVIS.  [CHAP.  III. 


SECTION   IV. 

Jurisdiction  over  Act. 

UNITED   STATES   v.   DAVIS. 
U.  S.  Circuit  Court,  District  of  Massachusetts.     1837. 

[Reported  2  SuJiimer,  482.1 

Indictment  for  manslaughter.  It  appeared  that  the  defendant, 
master  of  an  American  whale  ship,  shot  and  killed  a  man  on  the  deck 
of  another  vessel  which  lay  alongside  ;  both  vessels  lay  at  the  time  in 
a  harbor  of  one  of  the  Society  Islands.^ 

Story,  J.  We  are  of  opinion  that,  under  the  circumstances  estab- 
lished in  evidence,  there  is  no  jurisdiction  in  this  cause. 

What  we  found  ourselves  upon  in  this  case  is,  that  the  offence,  if 
any,  was  committed,  not  on  board  of  the  American  ship  "  Rose,"  but 
ou  board  of  a  foreign  schooner  belonging  to  inhabitants  of  the  So- 
ciety Islands,  and,  of  course,  under  the  territorial  government  of  the 
king  of  the  Society  Islands,  with  which  kingdom  we  have  trade  and 
friendly  intercourse,  and  which  our  government  may  be  presumed 
(since  we  have  a  consul  there)  to  recognize  as  entitled  to  the  rights  and 
sovereignty  of  an  independent  nation,  and  of  course  entitled  to  try 
offences  committed  within  its  territorial  jurisdiction. /^I  say  the  offence 
was  committed  on  board  of  the  schooner  ;  for  although  the  gun  was 
fired  from  the  ship  "■  Rose,"  the  shot  took  effect  and  the  death  hap- 
pened on  board  of  the  schooner ;  and  the  act  was,  in  contemplation  of 
law,  done  where  the  shot  took  effect.^^  So  the  law  was  settled  in  the 
case  of  Rex  v.  Coombs,  1  Leach  Cr.  Cas.  432,  where  a  person  on  the  high 
seas  was  killed  by  a  shot  fired  by  a  person  on  shore,  and  the  offence 
was  held  to  be  committed  on  the  high  seas,  and  to  be  within  the  Admi- 
ralty jurisdiction.yVOf  offences  committed  on  the  high  season  board  of 
foreign  vessels  (n/t  being  a  piratical  vessel),  but  belonging  to  persons 
under  the  acknowledged  government  of  a  foreign  country,  this  court 
has  no  jurisdiction  under  the  Act  of  1790,  ch.  36,  §  12.^That  was  the 

1  This  short  statement  of  facts  has  been  substituted  for  that  contained  in  the 
report. 


SECT.  IV.]  •       STATE    V.   GESSERT.  203 

doctrine  of  the  Supreme  Court  in  United  States  v.  Palmer,  3  Wheat.  R. 
610,  and  United  States  v.  Klintock,  5  AVheat.  R.  144,  and  United 
States  V.  Holmes,  o  Wheat.  R.  412  ;  applied,  it  is  true,  to  another  class 
of  cases,  but  in  its  scope  embracing  the  present.  We  lay  no  stress  on 
the  fact  that  the  deceased  was  a  foreigner.  Our  judgment  would  be 
the  same  if  he  had  been  an  American  citizen.  ^We  decide  the  case 
wholly  on  the  ground  that  the  schooner  was  a  foreign  vessel  belonging 
to  foreigners,  and  at  the  time  under  the  acknowledged  jurisdiction  of 
a  foreign  government.  llWe  think  that  under  such  circumstances  the 
jurisdiction  over  the  offence  belonged  to  the  foreign  government,  and 
not  to  the  courts  of  the  United  States  under  the  Act  of  Congress. 
The  jury  immediately  returned  a  verdict  of  not  guilty. /| 


STATE  V.  GESSERT. 

Supreme  Court  of  Minnesota.     1875. 

[Reported  21  Minnesota,  3^9.] 

Behry,  J.  The  indictment  in  this  case  was  found  by  a  grand  jury 
of  Washington  County,  and  charges  the  defendant  with  committing  the 
crime  of  murder,  by  feloniously,  &c  ,  inflicting  upon  David  Savazyo, 
on  Aug.  28,  1874,  in  said  county,  a  stab  and  wound,  of  which,  upon 
the  same  day,  Savazyo  died  in  the  county  of  Pierce,  and  State  of  Wis- 
consin. The  question  in  the  case  is  whether  the  indictment  charges 
the  commission  of  an  offence  in  the  county  of  Washington.  It  is  for 
his  acts  that  defendant  is  responsible.  They  constitute  his  offence. 
The  place  where  they  are  committed  must  be  the  place  where  his  offence 
is  committed,  and  therefore  the  place  where  he  should  be  indicted  and 
tried.  In  this  instance  the  acts  with  which  defendant  is  charged, 
to  wit,  the  stabbing  and  wounding,  were  committed  in  Washington 
County.  The  death  which  ensued  in  Pierce  County,  though  it  went  to 
characterize  the  acts  committed  in  Washington  Count}',  was  not  an  act 
of  defendant  committed  in  Wisconsin,  but  the  consequence  of  his  acts 
committed  in  Washington  County,  against  the  peace  and  dignity  of  the 
State  of  Minnesota.  We  are  therefore  of  opinion  that  the  indictment 
charges  the  commission  of  the  crime  of  murder  in  AVashiugton  County, 
and,  upon  the  questions  certified  to  this  court  by  the  court  below,  that 
the  demurrer  to  the  indictment  should  be  overruled.  Riley  v.  State, 
9  Humph.  646-,  Com.  r.  Parker,  2  Pick.  550,  559;  1  East,  P.  C.  c.  5, 
§  128  ;  Rex  v.  Burdett,  4  B.  &  Aid.  95,  173  ;  Grosvenor  v.  Inhabitants, 
&c.,  12  East,  244  ;  People  r.  Gill,  6  Cal.  637  ;  State  v.  Carter,  3  Dutch. 
499  ;  1  Hale  P.  C.  c  33  ;  1  Bish.  Cr.  Law,  §  83  ;  1  Bish.  Cr.  Proc. 
§  67  ;  2  Wharton  Cr.  Law,  §  1052.^ 

1  Ace.  Green  v.  State,  66  Ala.  40 ;  U.  S.  v.  Guiteau,  1  Mack.  498.  See  also  the 
following  cases  for  decision  upon  the  locality  of  crime  :  Allison  v.  Com.,  83  Ky.  2.54 
(receiving  stolen  goods)  ;  People  v.  Arnold,  46  Mich.  268  (conspiracy) ;  Lovelace  v. 
State,  12  Lea,  721  (embezzlement).  —  Ed. 


t 


^^ 


204  REGINA   V.   ARMSTKONG,  [CHAP.  III. 

I  ^H 

REGINA  V.  ARMSTRONG. 
Liverpool  Assizes.     1875. 

[Reported  13  Cox  C.  C.  184.] 

John  Armstrong  was  charged  with  the  wilful  murder  of  Lawrence 
Harrington,  on  board  the  hullc  iLent,  in  the  Bonny  River,  Africa,  on 
the  4th  of  May,  1875.^  ... 

It  was  proved  in  evidence  that  the  lient  had  been  a  three-masted 
sailino-  ship,  of  1324  tons  register,  and  was  registered  as  a  British  ship, 
though  not  British  built.  That  she  had  for  eighteen  months  at  least 
been  dismasted,  and  employed  as  a  floating  depot  or  receiving  ship  on 
the  Bonny  Station  for  a  line  of  commercial  steamers  trading  between 
Liverpool  and  that  port ;  that  she  swung  with  the  tide  and  floated  in 
the  tideway  of  the  river,  and  that  she  hoisted  the  British  ensign  at  the 
peak.  The  general  appointments  as  a  ship,  boats,  etc.,  remained  ; 
the  masts  had  been  cut  down  to  form  a  support  for  an  awning  or  house 
on  deck,  but  the  rigging  had  been  taken  away.  The  prisoner  was  mate 
of  the  Ke72t,  and  in  the  evening  of  the  4t[i  day  of  May  he  stealthily 
approached  the  captain  as  he  was  standing  near  the  stern  and  leaning 
over  the  taffrail  of  the  ship,  and  took  hold  of  him  by  the  collar  of  his 
coat  and  the  seat  of  his  trousers  and  flung  him  overboard.  The  body 
of  the  captain  in  falling  struck  the  quarter  rail  or  gallery  of  the  Kent, 
and  bounded  off ;  and  the  back  of  his  head,  as  was  deposed  by  one 
witness,  then  struck  the  gunwale  of  a  boat  that  was  lying  moored  on 
the  port  side,  leaving  marks  of  blood.  The  body  then  fell  into  the 
water,  and  was  never  seen  again,  though  five  or  six  boats  were  imme- 
diately put  out  in  search.  The  river  was  running  out  very  rapidly,  at 
the  rate  of  four  to  five  knots  an  hour.  It  was  at  this  point  six  or  seven 
miles  broad,  and  the  nearest  ship  was  probabl}'  a  thousand  yards  dis- 
tant. The  station  of  the  ship  was  at  about  seven  miles  from  the  bar, 
one  and  a  half  miles  from  the  easterly  or  southern  shore,  and  more  than 
five  from  the  northern  shore.  One  of  the  witnesses  said  the  river  was 
infested  with  sharks,  and  that  bathing  was  forbidden  on  that  account, 
but  admitted  in  cross-examination  he  had  never  seen  any. 

Cottingham,  for  the  prisoner,  submitted  .  .  .  that  the  murder,  if 
murder  it  were,  was  not  committed  on  board  the  Kent,  and  was  not  a 
completed  criminal  act  on  board  that  shii).  That  at  the  utmost  there 
had  ovAy  been  an  assault  on  board  the  ship,  and  that  the  ultimate  con- 
sequence of  the  act,  where  it  was  only  a  possible  consequence,  could 
not  be  assumed  to  have  occurred  on  board  the  ship.   .  .   . 

His  LoRDSnip  [Archibald,  J.]  overruled  all  the  objections,  and 
pointed  out  that  there  was  abundant  7>/'i7u«yaae  evidence  that  the  ship 
was  a  British  ship,  and  that  this  had  not  been  rebutted  ;  that  the  crime 

1  Only  so  much  of  the  case  as  discusses  the  question  of  jurisdiction  is  given.  —  Ed. 


SECT.  IV.]  JACKSON   V.    COMMONWEALTH.  205 

had  been  committed  on  board  a  British  ship,  and  on  the  higli  seas,  and 
that  it  was  not  necessary-  that  the  act  should  have  been  comi)leted  on 
board,  as  it  was  a  direct  consequence  of  the  felonious  assault. 

The  jury  found  the  prisoner  guilt}'  of  manslaughter,   and  he  was 
sentenced  to  twenty  years  penal  servitude. 


^  3  6-^ 

JACKSON   V.  COMMONWEALTH. 

Court  of  Appeals  of  Kentucky.     1897. 

[Reported  100  A'^.  239.] 

The  defendant  and  one  Walling  were  indicted  for  the  murder  of 
Pearl  Bryan  in  Campbell  County,  Kentuck}-.  Tlie  evidence  indicated 
that  the  two  persons  accused  had  attempted  to  kill  the  deceased  by 
giving  her  poison  in  Ohio ;  that  she  became  unconscious,  and  was 
believed  by  them  -to  be  dead ;  that  they  brought  her  across  the  Ohio 
River  into  Kentucky,  and  there  cut  off  her  head,  and  thus  caused  her 
death.  The  court  at  the  trial  charged:  "If  the  jury  believe  from 
all  the  evidence  be3'ond  a  reasonable  doubt  that  the  defendant,  Scott 
Jackson,  wilfully,  feloniousl}',  and  with  malice  aforethought,  himself 
attempted  or  aided  or  abetted  or  procured  another  to  attempt  to  kill 
Pearl  Bryan,  but  she  was  not  thereby  killed,  and  that  said  Scott  Jack- 
son, in  this  count}'  and  State,  before  the  14th  day  of  February,  1896, 
though  believing  said  Pearl  Bryan  was  then  dead,  for  whatever  purpose, 
cut  her  throat  with  a  knife  or  other  sharp  instrument  so  that  she  did 
then  and  there,  and  because  thereof  die,  they  will  find  said  Scott 
Jackson  guilty  of  murder." 

On  appeal  this  charge  was  held  to  be  correct.  The  defendant  moved 
for  a  rehearing.^ 

Du  Relle,  J.  With  great  earnestness,  force  and  plausibility  two 
contentions  are  made  by  the  petitions  for  rehearing  in  this  case  and  in 
the  case  of  Walling  v.  Commonwealth  : 

1st.  That  no  facts  which  occurred  in  the  foreign  jurisdiction  of  Ohio 
can  be  tacked  on  to  facts  which  occurred  in  Kentucky  for  the  purpose 
of  supplying  the  elements  necessary  to  constitute  the  crime  of  murder 
in  Kentucky. 

2d.  (And  this  appears  to  be  the  point  chiefly  relied  on)  That  in 
giving  its  instructions  to  the  jury  the  trial  court  is  not  authorized  to 
refer  to  an}'  fact  which  occurred  in  the  foreign  jurisdiction.  Other 
suggestions  are  made  in  the  petitions,  but  in  our  judgment  do  not 
requii'e  specific  response. 

These  two  contentions  may  be  considered  together,  as  the  first  is 

1  This  short  statement  of  the  facts  upon  which  the  petition  for  a  rehearing  is  based 
is  abridged  from  the  opinion  given  after  the  first  argument.  —  Ed. 


206 


JACKSON   V.   COMMONWEALTH. 


[chap.  III. 


1 


^j 


^r 


necessarih-  raised  and  considered  in  the  decision  of  tlie  second,  and 
so  treated  in  the  petition. 

Reduced  to  its  lowest  terms,  the  claim  of  counsel  is  that  an  attempt 
to  commit  a  murder  in  another  State,  supposed  by  the  guilty  party  to 
have  been  there  successful,  but  in  reality  completed  in  this  State, 
though  by  an  act  not  by  him  believed  to  be  the  consummation  of  his 
purpose,  is  not  in  this  State  punishable. 

Such  is  not  nor  should  it  be  the  law.  By  the  law  of  this  State  a 
crime  is  punishable  in  the  jurisdiction  in  which  it  has  effect.  Statutes 
in  numbers  have  been  passed  by  the  general  assembly  of  this  Common- 
wealth providing  that  jurisdiction  should  be  had  of  crimes  in  the  county 
in  which  the  crime  became  effectual.  (Chapter  36,  article  2,  Kentucky 
Statutes.)  Such  we  believe  to  have  been  the  common  law  before  such 
enactments. 

Assuming  that  what  the  jury  found  was  true,  in  what  State  or  district 
could  the  crime  be  punished?  If  not  here,  where?  If  we  concede  the 
claims  of  counsel  for  appellants  no  serious  crime  was  committed  in 
Ohio.  Nothing  was  there  done  but  an  ineffective  attempt  to  murder. 
None  was  committed  there.  What  was  done  in  this  jurisdiction  was 
only  the  mutilation  of  a  supposed  corpse,  and  yet  the  fact,  established 
by  overwhelming  testimony,  remains  that  the  crime  has  been  com- 
mitted. Not  all  the  refinements  of  counsel  can  lead  us  from  the  con- 
clusion that,  when  a  crime  has  been  completed  the  result  of  which  is  a 
death  in  this  Commonwealth,  we  can  take  jurisdiction  of  the  offence. 

Not  for  a  moment  can  we  admit  as  law  the  logical  conclusion  of 
counsel's  argument,  namely,  that  there  is  a  variety  of  murder,  which, 
b}-  reason  of  error  in  its  commission,  is  not  anywhere  in  any  jurisdic- 
tion punishable  ;  not  in  Ohio,  for  the  reason  that  the  attempt  there 
made  was  not  successful ;  not  in  Kentucky,  for  the  reason  that  the  act 
there  done,  and  which  accomplished  and  completed  tlie  actual  killing, 
was  done  upon  the  supposition  that  the  murder  had  already  been 
accomplished. 

One  reliance  of  the  defence  upon  petition  for  rehearing  is  that  the 
indictment  charges  murder  by  cutting  tlie  throat  or  decapitation,  and 
that  the  instructions  permit  and  require  the  jury  to  consider  a  previous 
attempt  to  kill  in  a  foreign  State  and  by  different  means.  But  in  our 
opinion  it  was  not  error  in  the  instructions  to  present  to  the  jury  evi- 
dential facts  which,  if  found  to  be  true,  showed  the  criminal  nature  of 
the  act  by  which  the  offence  was  completed. 

We  see  no  good  reason  why  we  should  not  consider  the  motive  which 
inspired  an  attempted  crime  in  another  sovereignty',  and  the  circum- 
stances of  the  attempt,  with  the  view  to  determine  the  character, 
criminal  or  not,  of  the  ultimate  fact  which  took  place  in  this  sov- 
ereignty ;  nor  is  such  a  determination  an  invasion  of  the  constitutional 
right  of  the  accused  to  a  speedy  "  public  trial  by  an  impartial  jury  of 
the  vicinage."  For  the  accused  himself  selected  the  vicinage  in  which 
the  final  act  occurred,  and  thus  himself  gave  jurisdiction  to  the  court 


SECT.  IV.]  STATE   V.    KNIGHT.  207 

which  determined  the  criminal  character  of  that  act.'*  Nor  can  we  con- 
sider as  serious  the  contention  that  the  ruling  of  the  trial  court,  approved 
b}'  the  opinion  in  this  case,  is  punishment  in  Kentucky'  of  an  offence 
committed  in  anotlier  jurisdiction,  and  there  again  punishable,  so  as  to 
come  within  tlie  constitutional  inliibition  against  a  citizen  being  twice 
put  in  jeopardy.^  On  counsel's  own  contention  no  completed  crime 
existed  in  Ohio,  and  tlie  crime  committed,  if  punishable  under  this 
State's  law,  can  not  further  or  again  be  punished  there.  . . . 

We  have  carefully  examined  the  immense  mass  of  testimony  in  the 
case,  and  see  no  error  to  the  prejudice  of  any  substantial  right  of  the 
appellant. 

The  petition  for  rehearing  is  overruled. 


STATE   V.  KNIGHT. 
Superior  Court  of  North  Carolina.     1799. 

[Reported  2  Hayicood,  109.] 

He  was  indicted  of  passing  counterfeit  bills  of  credit,  of  the  likeness 
of  the  genuine  bills  of  credit  of  this  state,  in  Virginia.     The  indictipent 
was  drawn  upon  the  Act  of  1784,  c.  25,  §  4  :  '•ffAnCi  whereas  there  is"^ 
reason  to  apprehend  that  wicked  and  ill  disposed  persons  resident  in 
the  neighboring  states  make  a  practice  of  counterfeiting  the  current 
bills  of  credit  of  this  state,  and  by  themselves  or  emissaries  utter  or 
vend  the  same  with  an  intention  to  defraud  the  citizens  of  this  state  : 
Be  it  therefore  enacted  that  all  such  persons  shall  be  subject  to  the 
same  mode  of  trial,  and  on  conviction  lia 
penalties,  as  if  the  offence  had  been  commi 
state,  and  be  prosecuted  in  the  Superior 
this  state. '1^ And  he  was  convicted. 

Per  curiam.  //This  state  cannot  declai*e  that  an  act  done  in  Virginia 
b}'  a  citizen  of  Virginia  shall  be  criminal  and  punishable  in  this  state. 
Our  penal  laws  can  only  extend  to  the  limits  of  this  State,  except  as  to 
our  own  citizens.  But  granting  tliat  our  Legislature  could  enact  laws 
for  the  punishment  of  offences  committed  in  Virghiia,  still  this  clause 
only  extends  by  implication  to  acts  done  in  Virginia ;  and  no  penal 
law  can  be  construed  by  implication,  nor  otherwise  than  by  the  express 
letter. 

He  was  discharged.^ 

1  Ace.  People  v.  Merrill,  2  Park,  590.  —  Ed. 


able  to  the  same  pains  and    \/J\J'^      Z^    / 
itted  witliin  the  limits  of  this.)^        J     ^  j 
Court  of  any  district  within  ^    ^     i^A. 


208  HANKS   V.    STATE.  [CHAP.  III. 

I  ^7 

HANKS   V.  STATE. 

Court  of  Appeals  of  Texas.     1882. 

[Reported  13  Tex.  App.  289.] 

"White,  P.  J.  There  is  but  a  single  question  which  we  think  is  in- 
volved in  and  requires  discussion  on  this  appeal. 

Appellant  and  one  P.  Dillman  were  jointly  indicted  in  the  District 
Court  of  Travis  County  for  tlie  forger}'  of  a  transfer  of  a  land  certificate 
for  a  league  and  labor  of  land  in  the  State  of  Texas.  It  is  alleged  in 
the  indictment  that  the  acts  constituting  the  forgery  were  a]l  committed 
in  Caddo  parish,  in  the  State  of  Louisiana.  No  act  or  thing  connected 
with  the  execution  of  the  forgery  is  charged  to  have  been  done  in 
Texas  ;  but  the  crime  and  injury,  so  far  as  this  State  is  concerned,  are 
averred  to  consist  in  the  fact  that  the  said  forgery  in  Louisiana  "  did 
then  and  there  relate  to  and  affect  an  interest  in  land  in  the  State 
of  Texas,  .  .  .  and  would,  if  the  same  were  true  and  genuine,  have 
transferred  and  affected  certain  property,  to  wit,  a  certain  land  certifi- 
cate, number  222,  for  one  league  and  labor  of  land  in  the  State  of 
Texas,"  etc. 

This  indictment  was  brought  under  Article  451  of  the  Penal  Code. 

B}'  Article  454  of  the  Code  it  is  declared  that  "persons  out  of  the 
State  may  commit  and  be  liable  to  indictment  and  conviction  for  com- 
mitting any  of  the  offences  enumerated  in  this  chapter  which  do  not 
in  their  commission  necessarily  require  a  personal  presence  in  this 
State,  the  object  of  this  chapter  being  to  reach  and  punish  all  persons 
offending  against  its  provisions,  whether  within  or  without  this  State,'"' 
etc. 

It  was  made  a  ground  both  in  the  motion  to  quash  the  indictment 
and  in  arrest  of  judgment,  and  is  again  urgenth"  insisted  upon  in  the 
able  brief  of  counsel  for  appellant,  that  the  facts  alleged,  if  true,  would 
constitute  an  offence  against  the  sovereign  State  of  Louisiana  alone, 
and  one  of  which  the  courts  of  this  State  would  have  no  jurisdiction. 

If  the  position  thus  assumed  in  behalf  of  appellant  be  correct,  then 
the  Legislature  had  no  authorit}'  to  pass  the  act  quoted,  and  the  same 
is  an  absolute  nullity.  Can  this  proposition  be  maintained  ?  It  cer- 
tainl}- cannot  be  found  in  an}'  constitutional  inhibition,  State  or  Federal, 
depriving  the  Legislature  of  the  authority,  and  unless  there  is  some 
authority  of  law  superior  to  the  right  of  a  State  Legislature,  which 
could  and  should  control  the  action  of  the  latter  within  the  scope  of  its 
constitutional  powers,  we  cannot  well  conceive  how  its  enactments,  if 
reasonable  and  consistent  with  that  power,  could  be  held  inoperative 
and  nugatory. 

Two  authorities,  which  are  to  the  effect  that  "  the  Legislature  of  one 
State  cannot  define  and  punish  crimes  committed  in  another  State,"  are 
mainly  relied  upon.  The  leading  one  is  the  case  of  the  State  v.  Knight, 
taken  from  2  Haywood,  and  reported  in  Taylor's  North  Carolina  Re- 


SECT.  IV.]  HANKS   V.   STATE.  209 

ports,  page  44.  The  other  is  People  v.  Merrill,  2  Park's  Criminal 
Reports,  590.  The  defendant  in  the  first  case  was  indicted  under  a 
statute  the  words  of  which  were:  "And  whereas  there  is  reason  to 
apprehend  that  wicked  and  Ml  disposed  persons  resident  in  the  neigh- 
boring States  make  a  practice  of  counterfeiting  the  current  bills  of 
credit  of  this  State,  and  by  themselves  or  emissaries  utter  or  vend  the 
same,  with  an  intention  to  defraud  the  citizens  of  this  State:  Be  it 
enacted,  etc.,  that  all  such  persons  shall  be  subject  to  the  same  mode 
of  trial,  and  on  conviction  liable  to  the  same  i)iuns  and  penalties  as  if 
the  offence  had  been  committed  within  the  limits  of  this  State  and 
prosecuted  in  the  superior  court  of  any  district  of  this  State."  It  was 
held  that  the  jurisdiction  to  try  in  North  Carolina  was  doubtful,  and 
the  prisoner  was  discharged. 

Mr.  Wharton,  in  his  work  on  the  Conflict  of  Laws,  says :  "  The 
sturdiest  advocates  of  the  hypothesis  that  the  locus  delicti  alone  confers 
jurisdiction  have  admitted  that  there  are  cases  in  which  a  person  whose 
residence  is  outside  the  territor}-  may  make  himself,  b}'  conspiring  extra- 
territorially  to  defeat  its  laws,  infra-territorially  responsible.  If,  for 
instance,  a  forger  should  establish  on  the  Mexican  side  of  the  boundary 
between  the  United  States  and  Mexico  a  manufactory  for  the  forgery 
of  United  States  securities,  for  us  to  hold  that  when  the  mischief  is 
done  he  can  take  up  his  residence  in  the  United  States  without  even 
liability  to  arrest,  would  not  merel}-  expose  our  government  to  spolia- 
tion, but  bring  its  autliority  into  contempt.  To  say  that  in  such  a  case 
the  Mexican  government  can  be  relied  upon  to  punish  is  no  answer ; 
because,  first,  in  countries  of  such  imperfect  civilization,  penal  justice 
is  uncertain ;  secondlj",  in  cases  where,  in  such  country,  the  local  com- 
munity gains  greatly  by  the  fraud  and  suffers  by  it  no  loss,  the  chances 
of  conviction  and  punishment  would  be  peculiarly  slight ;  and,  thirdlv, 
because  all  that  the  ofl!ender  would  have  to  do  to  escape  justice  in  such 
a  case  would  be  to  walk  over  the  boundary  line  into  the  United  States, 
where  on  this  hypothesis  he  would  go  free."  (Whart.  Conflict  of  Laws, 
sec.  87G.)  Again  he  says  :|^"  Tims  it  has  been  held  that  the  originator 
of  a  nuisance  to  a  stream  in  one  country  which  affects  such  stream  in 
another  country  is  liable  to  prosecution  in  the  latter  country ;  that  the 
author  of  a  libel  uttered  by  him  in  one  country  and  published  by  others 
in  another  country  from  which  he  is  absent  at  the  time,  is  liable  in  the 
latter  country;  that  he  who  on  one  side  of  a  boundary  shoots  a  person 
on  the  other  side  is  amenable  in  the  country  wluere  the  blow  is  received  ; 
that  he  who  in  one  State  employs  an  innocent  agent  to  obtain  goods  bv 
false  pretenses  in  another  State  is  amenable  in  the  latter  State  ;  and 
that  he  who  sells  through  agents,  guilty  or  innocent,  lottery  tickets  in 
another  State  is  amenable  in  the  State  of  the  sale,  though  he  was  absent 
from  such  State  personally,  yj'ln  England  we  have  the  same  principle 
affirmed  by  the  highest  judicial  authority." //And  he  quotes  Lord  Camp- 
bell as  saying,  "  that  a  person  may,  by  the  employment  as  well  of  a 
conscious  as  of  an  unconscious  agent,  render  himself  amenable  to  the 

u 


210  HANKS   V.   STATE.  [CHAP.  III. 

law  of  England  when  he  comes  within  the  jurisdiction  of  our  courts  ;  " 
and  Sir  R.  Philliraore  as  saying,  "  It  is  a  monstrous  thing  that  any 
technical  rule  of  venue  should  prevent  justice  from  being  done  in  this 
country  on  a  criminal  for  an  offence  which  was  perpetrated  here  but  the 
execution  of  which  was  concocted  in  another  country."  ("VVhart.  Con- 
flict of  Laws,  sec.  877.  See  also  Adams  v.  People,  1  Comstock  N.  Y. 
173;  Commonwealth  v.  McLoon,  101  Mass.  1;  Ham  v.  State,  4  Texas 
Ct.  App.  645;  Rogers  v.  The  State,  10  Texas  Ct.  App.  655.) 

Mr.  Cooley,  in  his  great  work  on  Constitutional  Limitations,  treating 
of  territorial  limitation  to  legislative  authority,  says  :  "  The  legislative 
authority  of  every  State  must  spend  its  force  within  the  territorial 
limits  of  the  State.  ...  It  cannot  provide  for  the  punishment  as  crimes 
of  acts  committed  beyond  the  State  boundary,  because  such  acts,  if 
offences  at  all,  must  be  offences  against  the  sovereignty  within  whose 
limits  they  have  been  done."  But,  after  laying  down  this  doctrine,  in 
the  very  next  sentence  he  says:  "  But  if  the  consequences  of  an  un- 
lawful act  committed  outside  the  State  have  reached  their  ultimate  and 
injurious  result  within  it,  it  seems  that  the  perpetrator  may  be  pun- 
ished as  an  offender  against  such  State."  (Cooley's  Const.  Lim.,  4  ed., 
pp.  154-55.)  If  this  latter  rule  be  the  law,  then  it  is  a  solecism  to  say 
that  the  legislature  cahnot  so  declare  it  by  express  enactment. 

Story,  in  his  Conflict  of  Laws,  says  :  ' '  Although  the  penal  laws  of 
every  country  are  in  their  nature  local,  yet  an  offence  may  be  com- 
mitted in  one  sovereignty  in  violation  of  the  laws  of  another,  and  if  the 
offender  be  afterwards  found  in  the  latter  State,  he  may  be  punished 
according  to  the  laws  thereof,  and  the  fact  that  he  owes  allegiance  to 
another  sovereignty  is  no  bar  to  the  indictment."  (Stor}^  on  the  Con- 
flict of  Laws,  4  ed.,  section  6256.) 

The  offence  charged  in  the  indictment  against  appellant  comes  clearlj' 
within  the  terms  of  Article  454  of  the  Penal  Code.  Had  it  been  com- 
mitted by  one  of  our  own  citizens  within  this  State,  there  then  could 
be  no  question  as  to  his  liabilit}'.  Here,  the  defendant  in  effect 
says:  "  You  may  try  and  convict  your  own  citizens  for  the  same  act 
I  have  committed,  but  you  cannot  try  and  punish  me,  because  what  I 
have  done,  though  equally  as  violative  of  the  spirit  and  letter  of  the 
law,  is  still  not  triable  in  jour  court  because  it  was  committed  in  another 
State,  and  your  Legislature  could  not  pass  a  law  which  could  embrace 
me  within  its  pains  and  penalties."  We  can  see  no  valid  reason  why 
the  Legislature  of  the  State  of  Texas  could  not  assert,  as  it  has  done  in 
Article  454  siqyra,  her  jurisdiction  over  wrongs  and  crimes  with  regard 
to  the  land  titles  of  the  State,  no  matter  whether  the  perpetrator  of  the 
crime  was  at  the  time  of  its  consummation  within  or  without  her  terri- 
torial limits.  Such  acts  are  offences  against  the  State  of  Texas  and 
her  citizens  onl}-,  and  can  properl}'  be  tried  only  in  her  courts.  It  may 
in  fact  be  no  crime  against  the  State  in  which  it  is  perpetrated ;  and  if 
it  is,  under  such  circumstances  as  we  are  considering,  that  other  State 
would  have  no  interest  in  punishing  it,  and  would  rarely  if  ever  do  so. 


SECT.  IV.]  STATE    V.   WYCKOFF.  211 

■\Vhen  this  forger}-  was  committed  in  Louisiana,  eo  instanti  a  crime  was 
committed  against,  and  injury  done  to,  tlie  State  of  Texas,  because  it 
affected  title  to  lands  within  her  sovereignty. 

Our  conclusion  is  that  the  Legislature  had  authority  to  adopt  the  act 
in  question  ;  that  the  same  is  in  violation  of  no  law  superior  thereto  ; 
and  that  the  jurisdiction  thereby  conferred  can  be  rightly  exercised  by 
the  courts  of  this  State.  The  defendant  appears  to  us  to  come  clearly 
within  the  scope  of  that  jurisdiction.  He  has  been,  as  far  as  we  can 
see,  fairly  and  impartially  tried  under  the  law,  and  legally  convicted 
according  to  the  evidence  exhibited  in  the  record.  We  have  found  no 
error  for  which  a  reversal  of  the  judgment  should  be  had,  and  it  is 
therefore  affirmed.  '  Affirmed. 

Hurt,  J.,  dissents  upon  the  ground  that  the  Legislature  had  no 
authority  to  pass  Article  454,  Penal  Code. 


I  1^% 
STATE  V.  WYCKOFF. 
Supreme  Court  of  New  Jersey.     1864. 

[Reported  2  Vroom,  65.] 

Beasley,  C.  J.  The  defendant  was  convicted  before  the  Court  of 
Oyer  and  Terminer,  on  an  indictment  containing  two  counts,  the  first 
of  which  charges  him  with  the  larceny  of  certain  goods  of  a  value  ex- 
ceeding twenty  dollars,  and  the  other  with  receiving  goods  knowing 
them  to  be  stolen. 

It  appeared  that  the  defendant  was  in  New  York  at  the  time  of  the 
theft,  and  while  in  that  state  he  made  an  arrangement  with  one  Kelly 
to  come  into  this  state  and  steal  the  articles  in  question  and  to  bring 
and  deliver  them  to  him  m  New  York.  This  arrangement  was  carried 
into  effect,  —  the  articles  being  stolen  by  Kelly  and  delivered  to  the 
defendant  in  New  York.  The  defendant  was  not  in  this  state  at  any 
time,  from  the  inception  to  the  conclusion  of  the  transaction.  The 
Court  of  Oyer  and  Terminer  have  asked  the  advisory  opinion  of  this 
court  upon  two  points  :  — 

First.  Whether  proof  of  the  above  stated  facts  will  support  the 
indictment. 

Second.  Has  the  defendant  committed  any  offence  indictable  by  the 
laws  of  this  state  ? 

In  regard  to  the  first  point,  the  circumstances  proved  on  the  trial 
established  the  fact  that  Kelly  was  guilty  of  the  crime  of  grand  larceny 
in  this  state.  '  Kelly  therefore  committed  a  felony,  and  consequently, 
as  the  defendant  was  not  present,  either  actually  or  constructively,  at 
the  commission  of  the  offence,  he  could  not  be  a  principal  therein,  but 
was  an  accessory  before  the  fact.     Kelly  did  the  act,  and  the  defend- 


212  STATE   V.   WYCKOFF.  [CHAP.  III. 

ant's  will  contributed  to  it ;  but  it  was  committed  while  he  was  too  far 
from  the  act  to  constitute  him  a  principal.  The  distinction  lu  felonies 
between  the  principal  and  accessories  before  and  after  the  fact  is  cer- 
tainly technical,  and  has  been  sometimes  regarded  as  untenable  ;  but 
it  is  too  firmly  established  to  be  exploded  by  judicial  authority.  It 
has  always  been  regarded,  in  its  essential  features,  as  a  part  of  the 
criminal  law  of  this  state,  and  its  existence  is  recognized  both  in  our 
statutes  and  in  a  number  of  the  reported  decisions.  State  v.  Cooper, 
1   Green,  373  ;   Johnson  v.  State,  2  Dutcher,  324  ;  Cook  v.  State,  4 

Zab.  845.  .     ,  . 

The  first  count,  therefore,  charging  the  defendant  as  a  principal  in 
the  larceny,  is  not  sustained  by  the  evidence.  The  crime  of  the  acces- 
sory, being  dissimilar  from  that  of  the  principal  in  its  fundamental 
chai4cteri?tics,  must  be  distinctly  charged  in  the  pleadings.  It  has 
never  been  supposed  that  a  count  containing  a  statement  of  facts 
evincive  of  the  fault  of  the  party  accused  as  a  principal  in  a  felony, 
was  sufficient  to  warrant  the  conviction  of  such  party  as  an  accessory. 
1  Chit.  Crim.  Law,  271,  2  id.  4  ;  Wharton's  Free,  of  Indict.  97  ;  State 
V.  Seran,  4  Dutcher,  519.  In  the  case  of  Rex  v.  Plant,  7  C.  &  P.  575, 
it  was  expressly  held  that  one  indicted  as  principal  in  a  felony  could 
not  be  convicted  of  being  an  accessory  before  the  fact.  See  also 
Whart.  C.  L.  115. 

Neither  will  the  second  count  of  the  indictment  sustain  the  convic- 
tion. The  evidence  shows  that  the  stolen  goods  were  received  by  the 
defendant,  with  guilty  knowledge,  in  the  state  of  New  York.  But 
this  was  no  offence  against  the  laws  of  this  State.  The  defendant 
therefore  cannot  be  legally  sentenced  upon  the  conviction  founded  on 
the  present  indictment. 

The  remaining  question  is,  has  the  defendant  committed  any  offence 
indictable  by  the  laws  of  this  State? 

His  act  was  to  incite  and  procure  his  agent  or  accomplice  to  enter 
this  state  and  commit  the  felony.  If  the  defendant  had  been  in  this 
state  at  the  time  of  such  procurement  and  incitement,  he  would  have 
been  guilty  as  an  accessory  before  the  fact ;  but  what  he  did  was  done 
out  of  the  state.  Did  he  thereby  become  amenable  to  our  criminal 
jurisdiction? 

As  the  defendant  did  not  act  within  this  state  in  his  own  person,  the 
point  to  be  decided  is,  did  he  do  such  act  in  this  state  by  construction 
or  in  contemplation  of  law? 

It  is  undoubtedly  true  that  personal  presence  within  the  jurisdiction 
in  which  the  crime  is  committed,  is  not  in  all  cases  requisite  to  confer 
cognizance  over  the  person  of  the  offender,  in  the  tribunals  of  the  gov- 
ernment whose  laws  are  violated.  In  some  cases  the  maxim  applies, 
Crimen  trahit  persotiam.  Thus,  where  a  person  being  within  one 
jurisdiction,  maliciously  fires  a  shot  which  kills  a  man  in  another  juris- 
diction, it  is  murder  in  the  latter  jurisdiction,  the  illegal  act  being  there 
consummated.    So,  in  the  case  of  The  United  States  v.  Davis,  4  Sumner, 


SECT.  IV.]  STATE    V.   WYCKOFF,  213 

485,  the  defendant  was  accused  of  shooting  from  an  American  ship 
and  killing  a  man  on  board  a  foreign  schooner.  Chief  Justice  Story 
said:  "The  act  was,  in  contemplation  of  law,  done  where  the  shot 
took  effect.  He  would  be  liable  to  be  punished  by  the  foreign  govern- 
ment." The  same  i)rinciple  was  recognized  by  this  court  in  the  case 
of  The  State  v.  Carter,  3  Dutcher,  499.  So,  when  a  crime  is  com- 
mitted by  an  innocent  living  agent,  the  projector  of  such  crime  being 
absent  from  the  country  whose  laws  are  infringed.  Such  was  the  case 
of  The  People  v.  Adams,  3  Denio,  190.  In  this  latter  case  the  facts 
were  these  :  The  defendant  was  indicted  in  the  city  of  New  York  for 
obtaining  money  from  a  firm  of  commission  merchants  in  that  city  by 
the  exhibition  of  fictitious  receipts.  The  defendant  pleaded  that  he 
had  never  been  in  the  State  of  New  York  ;  that  the  receipts  were 
drawn  and  signed  in  Ohio,  and  that  the  offence  was  committed  by 
their  being  presented  to  the  firm  in  New  York  by  innocent  agents  em- 
ployed by  the  defendant  in  Ohio.  It  was  held  that  such  plea  was  bad 
and  disclosed  no  defence.  A  number  of  authorities  maintaining  the 
same  view  will  be  found  collected  in  the  opinion  of  the  judge  who 
delivered  the  decision  of  the  court  in  the  case  last  cited. 

The  rule,  therefore,  appears  to  be  firmly  established,  and  upon  very 
satisfactory  grounds,  that  where  the  crime  is  committed  by  a  person 
absent  from  the  country  in  which  the  act  is  done,  through  the  means 
of  a  merely  material  agency  or  by  a  sentient  agent  who  is  innocent,  in 
such  cases  the  offender  Is  punishable  where  the  act  is  done.  The  law 
implies  a  constructive  presence  from  the  necessity  of  the  case ; 
otherwise  the  anomaly  would  exist  of  a  crime,  but  no  responsible 
criminal. 

But  the  more  difficult  question  remains  to  be  considered,  which  is, 
—  in  case  of  a  felony  committed  here  by  a  responsible  agent,  who  is 
therefore  the  principal  felon,  and  punishable  by  our  laws,  —  can  the 
procurer,  who  is  an  accessory  before  the  fact,  and  whose  acts  of  pro- 
curement have  been  done  in  a  foreign  jurisdiction,  be  indicted  and 
punished  for  such  procurement  in  this    state? 

The  general  rule  of  the  law  has  always  been  that  a  crime  is  to  be  tried 
in  the  place  in  which  the  criminal  act  has  been  committed.  It  is  not 
sufficient  that  part  of  such  act  shall  have  been  done  in  such  place,  but 
it  is  the  completed  act  alone  which  gives  jurisdiction.  So  far  has  this 
strictness  been  pushed  that  it  has  been  uniformly  held  that  if  a  felony 
was  committed  in  one  county,  the  accessory  having  incited  the  prin- 
cipal in  another  county,  such  accessory  could  not  be  indicted  in  either. 
This  technicality,  which,  when  applied  to  the  several  counties  of  the 
same  kingdom  or  state,  appears  to  have  little  to  recommend  it,  was 
nevertheless  so  firmly  established  that  it  required  the  statute  of  2  and 
3  Ed.  VI.  c.  24,^  to  abolish  it,  and  this  statute  has  been  re-enacted  in 

^  "  Where  any  murder  or  felony  hereafter  shall  be  committed  and  done  in  one 
county,  and  another  person  or  mo  shall  be  accessory  or  accessories  in  any  manner  of 
wise  to  any  such  murder  or  felony  in  any  other  county,  that  then  an  indictment  found 


214  STATE   V.   WYCKOFF.  [CHAP.  III. 

this  state.  Nix.  Dig.  199  (Rev.  p.  282,  §  78).  And  so  in  like  manner 
tbe  same  rigor  existed  in  eases  in  which  death  ensued  out  of  the  king- 
dom from  a  felonious  stroke  inflicted  within  it,  it  being  decided  that 
neither  the  principal  nor  accessory  was,  under  such  cu'cumstances,  in- 
dictable. This  imperfection  in  the  criminal  system  was  removed  by 
the  statute  of  2  Geo.  II.  c.  21,  and  which  has  been  substantially  copied 
in  the  third  section  of  the  act  of  this  State  before  referred  to  in  Nix, 
Dig.  200  (Rev.  p.  282,  §  78).  For  the  rules  of  law  which  were  thus 
modifled  by  statute,  see  3  Inst.  48  ;  Lacye's  Case,  1  Leo.  270  ;  2  Rep.  93. 

If,  then,  the  accessory  by  the  common  law  was  answerable  only  in 
the  county  in  which  he  enticed  the  principal,  and  that,  too,  when  the 
criminal  act  was  consummated  in  the  same  county,  it  would  seem  to 
follow  necessarily,  in  the  absence  of  all  statutory  provision,  that  he  is 
wholly  dispunishable  when  the  enticement  to  the  commission  of  the 
ofTence  has  taken  place  out  of  the  state  in  which  the  felony  has  been 
perpetrated.  Under  such  a  condition  of  affairs  it  is  not  easy  to  see 
how  the  accessory  has  brought  himself  within  the  reach  of  the  laws  of 
the  offended  state.  His  offence  consists  in  the  enticement  to  commit 
the  crime  ;  and  that  enticement,  and  all  parts  of  it,  took  place  in  a 
foreign  jurisdiction.  As  the  instrumentality  employed  was  a  conscious 
guilty  agent,  with  free  will  to  act  or  to  refrain  from  acting,  there  is  no 
room  for  the  doctrine  of  a  constructive  presence  in  the  procurer.  -  Ap- 
plying to  the  facts  of  tliis  case  the  general  and  recognized  principles 
of  law,  it  would  seem  to  be  clear  that  the  offence  of  which  the  defend- 
ant has  been  guilty  is  not  such  as  the  laws  of  this  state  can  take  cog- 
nizance of.  "\Ye  must  be  satisfied  to  redress  the  wrong  which  has  been 
done  to  one  of  our  citizens,  and  to  vindicate  the  dignity  of  our  laws 
by  the  punishment  of  the  wrong-doer  who  came  within  our  territorial 
limits.  As  for  the  defendant,  who  has  never  been,  either  in  fact  or  by 
legal  intendment,  within  our  jurisdiction,  he  can  be  only  punished  by 
the  authority  of  the  State  of  New  York,  to  whose  sovereignty  alone  he 
was  subject  at  the  time  he  perpetrated  tlie  crime  in  question. 

The  principal  involved  in  this  case  has  not  often  been  the  suliject  of 
judicial  consideration,  nor  has  it  received  much  attention  from  the  text- 
writers.  But  in  the  few  cases  to  be  found  in  the  reports  upon  the 
point  a  view  similar  to  the  above  has  been  expressed.  The  case  of  The 
State  V  Moore,  6  Foster,  448,  was,  in  all  its  features,  identical  with 
that  now  before  this  court,  and  the  resuk  was  a  discharge  of  the  pris- 
oner, on  the  ground  that  the  crime  of  the  accessory  had  not  been 
committed  within  the  jurisdiction  of  New  Hampshire. 

The  case  Kv  parte  Smith,  6  Law  Reporter,  57,  was  to  the  same 

or  taken  against  such  accessory  and  accessories  upon  the  circumstance  of  such  matter 
before  the  justices  of  the  peace,  or  other  justices  or  commissioners  to  enquire  of  felonies 
in  the  county  where  such  offences  of  accessory  or  accessories  in  any  manner  of  wise  shall 
be  committed  or  done,  .shall  be  as  good  and  effectual  in  the  law  as  if  the  said  principal 
offence  had  been  committed  or  done  within  the  same  county  where  the  same  indictment 
against  such  accessory  shall  be  found."     2  &  3  Ed.  6,  c.  24,  §  4.  —  Ed. 


SECT.  IV,]  STATE    V.    WYCKOFF.  '215 

effect.  The  same  principle  was  again  considered,  though  in  a  some- 
what different  aspect,  in  the  case  of  The  State  v.  Knight,  1  Taylor's 
Rep.  (N.  C.)  65,  and  the  opinion  intimated  by  the  court  entirely  ac- 
corded with  those  expressed  in  the  two  cases  first  above  cited.  These 
are  the  only  judicial  examinations  of  the  matter  now  in  hand  which  I 
have  met  with  in  the  course  of  my  research. 

Upon  authority,  then,  as  well  as  upon  principle,  I  think  the  present 
indictment  cannot  be  sustained,  and  that  the  defendant  has  not  com- 
mitted any  offence  which  is  indictable  by  force  of  the  laws  of  this 
State. 

Let  the  Court  of  Oyer  and  Terminer  be  advised  accordingly.* 


Penal  Code  of  New  York,  §  32.  An  accessory  to  a  felony  may 
be  indicted,  tried,  and  convicted,  either  in  the  count}'  where  he  be- 
came an  accessor}',  or  in  the  county  where  the  principal  felony  was 
committed. 


Mass.  R.  L.  ch.  215,  §  43.  [An  acce'ssory  before  the  fact]  may  be 
indicted,  tried,  and  punished  in  the  same  county  in  which  the  princi- 
pal felon  might  be  indicted  and  tried,  although  the  counselling,  hiring, 
or  procuring  the  commission  of  such  felony  was  committed  within  or 
without  this  commonwealth,  or  on  the  high  seas.'^ 

1  Ace.  State  v.  Chapin,  17  Ark.  561 ;  State  v.  Moore,  26  N.  H.  448.  But  see  State 
V.  Grady,  34  Conn.  118  ;  State  v.  Ayre?,  8  Baxter,  96.  —  Ed. 

2  See  Com.  v.  Pettes,  114  Mass.  307.  — Ed. 


216 


LINDSEY   V.   STATE.  [CHAP.  III. 


LINDSEY  V.  STATE. 
Supreme  Court  of  Ohio.     1882. 

{Reported  38  Ohio  Slate,  507.] 

The  plaintiff  in  error,  and  one  John  T.  Morris,  were  jointly  indicted 
in  Jefferson  County.  The  charge  is  that  they  did  unlawfully  and 
feloniously  utter  and  publish  in  said  county,  as  true  and  genuine,  a 
certain  false,  forged,  and  counterfeit  deed  of  real  estate,  purporting  to 
be  executed  and  acknowledged  by  Maurice  F.  Thornton  and  wife,  be- 
fore Herman  E.  Shuster,  a  notary  public  of  the  State  of  Missouri,  and 
to  convey  certain  lands  in  that  State  to  James  TurnbuU,  of  Jefferson 
County,  Ohio. 

The  plaintiff  in  error  had  a  separate  trial,  and  was  convicted  and 

sentenced. 

The  evidence  tended  to  show  that  the  deed  was  a  forgery,  executed 
in  St.  Louis  by  the  notary  public  by  the  procurement  of  Lindsey,  who 
then  and  thereafter,  until  forcibly  brought  to  Ohio,  was  never  in  this 
State ;  that  this  deed  was  delivered  by  Lindsey  or  his  agent  to  his  co- 
defendant  Morris  (who  is  awaiting  his  trial),  and  by  him  was  sent  by 
mail  to  T.  &  D.  Hall,  real  estate  agents  in  Steubenville,  through  whom  it 
was  uttered  and  published  by  a  sale  of  the  land  to  Turnbull.  T.  &  D. 
Hall  were  the  innocent  agents  in  the  transaction,  and  received  and 
accounted  for  the  purchase-money,  less  commissions.^ 

JoHNSOx,  J.  Two  questions  are  presented  on  the  foregoing  state- 
ment:  — 

First.    Had  the  court  jurisdiction  over  the  plaintiff  in  error?  and. 

Second.  Were  the  conveyances  of  other  lands  admissible  for  the 
purpose  of  showing  guilty  knowledge?^ 

First.  As  to  the  jurisdiction  of  the  court :  Is  the  crime  charged  an 
extra-territorial  crime?  Was  it  committed  by  the  accused  in  Missouri, 
or  in  Ohio? 

If  he  were  Indicted  for  the  forgery  of  this  deed,  he  could  not  be 
punished  in  Ohio,  as  it  is  conceded  that  all  his  acts  that  constitute 
that  crime  were  committed  in  Missouri.  When  he  procured  the  notary 
in  St.  Louis  to  forge  the  signatures,  and  the  acknowledgment  of  the 
grantors,  with  the  criminal  intent,  the  crime  of  forgery  was  consum- 
mated in  the  State  of  Missouri.  But  this  is  not  the  charge  in  the  case 
at  bar.  It  is  for  knowingly  uttering  and  publishing  as  true  and  genu- 
ine a  false  and  forged  deed.  It  is  wholly  immaterial  where  the  forgery 
was  committed. 

*  Part  of  the  evidence  and  the  arguments  of  counsel  are  omitted. 

2  That  portion  of  the  opinion  which  relates  to  the  second  question  is  omitted- 


SECT.  IV.]  LINDSEY  V.    STATE.  217 

The  question  therefore  is,  was  this  deed  uttered  and  published  in 
Jefferson  County,  Ohio,  and  was  Lindsey  guilty  of  this  crime? 

That  this  forged  deed  was  uttered  and  published  in  Ohio  by  T.  &  D. 
Hall,  who  supposed  it  was  genuine,  is  clear  from  the  evidence. 

Now,  it  is  assumed  that  the  jury  had  evidence  to  warrant  them  in 
finding  that  T.  &  D.  Hall  did  so  utter  and,  publish  this  deed  by  the 
procurement  of  Lindsey. 

The  crime  was  therefore  completed  or  consummated  in  Ohio,  through 
tlie  instrumentality  of  an  innocent  agent.  It  is  wholly  immaterial 
whether  his  co-defendant  Morris  was  his  confederate  or  his  dupe,  as  in 
either  case  the  ajcts  of  Morris  by  correspondence  mailed  in  St.  Louis 
to  T.  &  I).  Hall  were  simply  the  means  used  to  consummate  a  crime 
in  Ohio.  The  crime  had  its  inception  in  Missouri,  but  it  was  com- 
mitted in  Ohio  by  innocent  agents.  If  a  letter  containing  a  forged 
instrument  is  mailed  at  one  place  to  be  sent  to  another,  the  venue  must 
be  laid  where  the  letter  is  received.     3  Greenl.  §  112. 

The  crime  of  uttering  and  publishing  is  not  complete  until  the  paper 
comes  to  the  hands  of  some  one  other  than  the  accused,  and  if  it  be 
sent  by  mail  for  the  purpose  of  being  there  used,  the  crime  is  not 
consummated  uatil  it  is  received  by  the  person  to  whom  it  is  to  be 
delivered.  It  is  a  fundamental  principle  that  a  person  is  responsible 
criminally  for  acts  committed  by  his  procurement  as  well  as  for  those 
done  in  person.  The  inherent  power  of  the  state  to  punish  the  utter- 
ing and  publication  of  forged  iu.struments  within  its  territorial  limits, 
without  regard  to  the  place  where  the  forgery  was  committed,  or  pur- 
pose was  formed,  is  essential  to  the  protection  of  her  people.  It  is 
now  a  generally  accepted  principle  that  one  who  in  one  county  or  state 
employs  an  innocent  agent  in  another  to  commit  a  crime,  is  liable  in 
the  latter  county  or  state.  Robbins  v.  The  State,  8  Ohio  St.  31  ; 
Norris  v.  The  State,  25  Ohio  St.  217;  1  Whart.  Crim.  Law  (7th  ed.), 
§^  210,  278;  see  also  Commonwealth  o.  Macloon,  101  Mass.  1  ;  Com- 
monwealth V  Smith,  11  Allen  (Mass.),  243  ;  Commonwealth  v.  Bland- 
ing,  3  Pick.  304  ;  Rex  v.  Johnson,  7  East,  6.5  ;  Wh.  Con.  of  L.  §§  877- 
921;  People  v.  Adams,  3  Denio,  190,  affirmed  1  N.  Y.  173;  United 
States  V.  Davis,  2  Sumn.  482  :  State  v.  Wyckoflf,  2  Vroom  (N.  J.)  68  ; 
Commonwealth  v.  Gillespie,  7  Serg.  &  R.  469  ;  Stillman  v.  White  Rock 
Co.,  3  Woodb.  &  M.  538  ;  Rex  v.  Garrett,  6  Cox  C.  C.  260  ;  Rex  v. 
Jones,  4  Cox  C.  C.  198  ;  State  v.  Grady,  34  Com.  118.^ 

'  Ace.  Reg.  V.  Taylor,  4  F.  &  F.  511  ;  People  v.  Adams,  3  Den.  190;  1  N.  Y.  173. 
See  Reg.  v.  Finkelstein,  16  Cox  C.  C.  107.  —  Ed. 


218 


STATE    V.    CARTER.  [CHAP.  III. 


STATE   V.  CARTER. 
Supreme  Court  of  New  Jersey.    1859. 

[Reported  3  Butcher,  499.] 

Vredenburgh,  J.  The  iudictment  charges  that  the  defendant,  on 
the  29th  of  December,  1858,  in  the  city  of  New  York,  gave  one  Briisli- 
ingham  several  mortal  bruises,  of  which,  until  the  31st  of  December, 
1858,  as  well  in  New  York  as  in  Hudson  County,  in  this  state,  he  Ian- 
guislied,  and  of  which,  in  said  Hudson  County,  he  then  died.  To  this 
indictment  the  defendant  pleaded  that  the  court  had  not  jurisdiction 
of  the  cause.  The  defendant,  we  must  assume,  was  a  citizen  of  the 
State  of  New  York.  Nothing  was  done  by  the  defendant  in  this  state. 
When  the  blow  was  given,  both  parties  were  out  of  its  jurisdiction,  and 
within  the  jurisdiction  of  the  State  of  New  York.  Tlie  only  fact  con- 
nected with  the  offence  alleged  to  have  taken  place  witliin  our  juris- 
diction is,  that  after  the  injury,  the  deceased  came  into,  and  died  in 
this  state.  This  is  not  the  case  where  a  man  stands  on  the  New  York 
side  of  the  line,  and  shooting  across  the  border,  kills  one  in  New  Jer- 
sey. When  that  is  so,  the  blow  is  in  fact  struck  in  New  Jersey.  It  is 
the  defendant's  act  in  this  state.  The  passage  of  the  ball,  after  it 
crosses  the  boundary,  and  its  actual  striking,  is  the  continuous  act  of 
the  defendant.  In  all  cases  the  criminal  act  is  the  impinging  of  the 
weapon,  whatever  it  may  be,  on  the  person  of  the  party  injured,  and 
that  must  necessarily'  be  where  the  impingement  happens.  And  whether 
the  sword,  the  ball,  or  any  other  missile,  passes  over  a  boundary  in  the 
act  of  striking,  is  a  matter  of  no  consequence.  The  act  is  where  it 
strikes,  as  much  where  the  party  who  strikes  stands  out  of  the  state, 
as  where  he  stands  in  it. 

Here  no  act  is  done  in  this  state  by  the  defendant.  He  sent  no  mis- 
sile, or  letter,  or  message,  that  operated  as  an  act  within  this  state. 
The  coming  of  the  party  injured  into  this  state  afterwards  was  his  own 
voluntary  act,  and  in  no  way  the  act  of  the  defendant.  If  the  defend- 
ant is  liable  here  at  all,  it  must  be  solely  because  the  deceased  came 
and  died  here  after  he  was  injured.  Can  that,  in  the  nature  of  things, 
make  the  defendant  guilty  of  murder  or  manslaughter  here?  If  it  can, 
then  for  a  year  after  an  injury  is  inflicted,  murder,  as  to  its  jurisdic- 
tion, is  ambulatory  at  the  option  of  the  party  injured,  and  becomes 
punishable  as  such  wherever  he  may  see  fit  to  die.  It  may  be  man- 
slaughter, in  its  various  degrees,  in  one  place,  murder,  in  its  various 
degrees,  in  another.  Its  punishment  may  be  fine  in  one  country,  im- 
prisonment, whipping,  beheading,  strangling,  quartering,  hanging,  or 
torture  in  another,  and  all  for  no  act  done  by  the  defendant  in  any  of 
these  jurisdictions,  but  only  because  the  party  injured  found  it  con- 
venient to  travel. 


SECT.  IV.]  STATE  V.    CARTER.  219 

This  is  not  like  the  case  of  stolen  goods,  carried  from  one  state  to 
another,  or  of  leaving  the  state  for  an}'  purpose  whatever,  lilve  that 
for  fighting  a  duel,  or  of  sending  a  letter  or  messenger,  or  message, 
for  any  pur})ose,  into  another  state  ;  for  in  all  these  cases  the  cogni- 
zance is  taken  for  an  («:t  done  within  the  jurisdiction. 

If  the  acts  charged  in  this  indictment  be  criminal  in  New  Jersey,  it 
must  be  either  by  force  of  some  statute  or  upon  general  principles. 
There  is  no  statute,  unless  it  be  the  act  to  be  found  in  Nix.  Dig;.  1^4, 
s.  3.  But  this  evidently  relates  to  murder  only,  and  not  to  man- 
slaugliter. 

But  I  cannot  make  myself  believe  that  the  legislature,  in  that  act, 
intended  to  embrace  cases  where  the  injury  was  inflicted  within  a  for- 
eign jurisdiction  without  any  act  done  by  the  defendant  within  our 
own.  Such  an  enactment,  upon  general  principles,  would  necessarily 
be  void ;  it  would  give  the  courts  of  this  state  jurisdiction  over  all  the 
sulijects  of  all  the  governments  of  the  earth,  with  power  to  tr}'  and 
punish  them,  if  they  could  by  force  or  fraud  get  possession  of  their 
persons  in  all  cases  where  personal  injuries  are  followed  by  death. 

An  act,  to  be  criminal,  must  be  alleged  to  be  an  offence  against  the 
sovereignty  of  the  government.  This  is  of  the  very  essence  of  crime 
punishable  by  human  law.  How  can  an  act  done  in  one  jurisdiction 
be  an  offence  against  the  sovereignty  of  another  ?  All  the  cases  turn 
upon  the  question  where  the  act  was  done.  The  person  who  does  it 
may,  when  he  does  it,  be  within  or  without  the  jurisdiction,  as  by 
shooting  or  sending  a  letter  across  the  border  ;  but  the  act  is  not  the 
less  done  within  the  jurisdiction  because  the  person  who  does  it  stands 
without.  This  case  is  not  at  all  like  those  where  the  defendant  is  tried 
in  England  for  a  crime  committed  in  one  of  the  dependencies  of  the 
British  empire.  There  the  act  is  done,  and  the  crime  is  in  fact  com- 
mitted against  the  sovereignty  of  the  British  crown,  ant^  only  the  place 
of  trial  is  changed. 

If  our  government  takes  jurisdiction  of  this  case,  it  must  be  not  by 
virtue  of  any  statute,  but  because  it  assumes  general  power  to  punish 
acts  mala  in  se  wherever  perpetrated  in  the  world.  The  fact  of  the 
party  injured  can  give  no  additional  jurisdiction. 

Such  crimes  may  be  committed  on  the  high  seas,  in  lauds  where 
there  are,  or  where  there  are  not  regular  governments  established. 
When  done  upon  the  high  seas,  they  may  be  either  upon  our  vessels 
or  upon  vessels  belonging  to  other  governments.  When  done  upon 
our  vessels,  in  whatever  solitary  corner  of  the  ocean,  from  the  necess- 
ity of  the  case,  and  by  universal  acceptance,  the  vessel  and  all  it  con- 
tains is  still  within  our  jurisdiction,  and  when  the  vessel  comes  to  port 
the  criminal  is  still  tried  for  an  act  done  within  our  jurisdiction.  But 
we  have  never  treated  acts  done  upon  the  vessels  of  other  governments 
as  within  our  jurisdiction,  nor  has  such  ever  been  done  by  any  civilized 
government. 

When  an  act  malum  in  se  is  done  in  solitudes,  upon  land  where  there 


220 


COMMONWEALTH   V.   MACLOON.  [CHAP.  III. 


has  not  yet  been  formerly  extended  any  supreme  human  power,  it  may 
be  that  any  regular  government  may  feel,  as  it  were,  a  divine  commis- 
sion to  try  and  punish.  It  may,  as  in  eases  of  crime  committed  in  the 
solitudes  of  the  ocean,  upon  and  by  vessels  belonging  to  no  govern- 
ment pro  hac  vice  arrogate  to  itself  the  prerogative  of  omnipotence, 
and  hang  the  pirate  of  the  land  as  well  as  of  the  water.  Further  than 
this  it  could  not  have  been  intended  that  our  statute  should  apply. 
But  here  the  act  was  done  in  the  State  of  New  York,  a  regularly  organ- 
ized and  acknowledged  supreme  government.  The  act  was  a  crime 
against  their  sovereignty.  That  was  supreme  within  its  territorial 
limits  and  in  its  very  nature,  and  in  fact  is  exclusive.  There  cannot 
be  two  sovereignties  supreme  over  the  same  place  at  the  same  time 
over  the  same  subject-matter.  The  existence  of  theirs  is  exclusive  of 
ours.  We  may  exercise  acts  of  sovereignty  over  the  wastes  of  ocean 
or  of  land,  but  we  must  necessarily  stop  at  the  boundary  of  another. 
The  allegation  of  an  act  done  in  another  sovereignty,  to  be  a  violation 
of  our  own,  is  simply  alleging  an  impossibility,  and  all  laws  to  punish 
such  acts  are  necessarily  void. 

It  is  said  that  if  we  do  not  take  jurisdiction,  the  defendant  will  go 
unpunished,  inasmuch  as,  the  party  injured  not  dying  in  New  York,  he 
could  not  be  guilty  of  murder  there.  But  New  York  may  provide  by 
law  for  such  cases,  and  if  she  does  not,  it  is  their  fault,  and  not  ours. 
The  act  done  is  against  their  sovereignty,  and  if  she  does  not  choose 
to  avenge  it,  it  is  not  for  us  to  step  in  and  do  it  for  them. 

I  think  that  the  Oyer  and  Terminer  should  be  advised  that  no  crime 
against  this  state  is  charged  in  the  indictment.^ 


COMMONWEALTH  v.  MACLOON. 
Supreme  Judicial  Court  of  Massachusetts.     1869. 

[Reported  101  Massachusetts,  \.\ 

Gray,  J.'  The  defendants,  the  one  a  citizen  of  Maine,  and  the 
other  a  British  subject,  have  been  convicted  in  the  Superior  Court  in 
Suffolk  of  manslaughter  of  a  man  who  died  within  the  county  in 
consequence  of  injuries  inflicted  by  them  upon  him  in  a  British  mer- 
chant ship  on  the  high  seas. 

The  principal  question  in  the  case  is  that  of  jurisdiction,  which 
touches  the  sovereign  power  of  the  Commonwealth  to  bring  to  justice 
the  murderers  of  those  who  die  within  its  borders.  This  question  has 
been  ably  and  thoroughly  argued,  and  has  received  the  consideration 
which  its  importance  demands. 

1  Ace.  State  v.  Kelly,  76  Me.  331.  —  Ed. 
^  Part  of  the  opinion  only  is  given. 


SECT.  IV.]  COMMONWEALTH    V.   MACLOON.  221 

The  statute  on  which  the  defendants  were  indicted,  after  prescribing 
the  punishment  for  murder  and  manslaughter,  provides  that  "  if  a  mor- 
tal wound  is  given,  or  other  violence  or  injury  inflicted,  or  poison  is 
administered,  on  the  high  seas,  or  on  land,  either  within  or  without  the 
limits  of  this  state,  b}'  means  whereof  death  ensues  in  any  county 
thereof,  such  offence  may  be  prosecuted  and  punished  in  the  county 
where  the  death  happens."     Gen.  Sts.  c.  171,  §  19. 

This  statute  is  founded  upon  the  general  power  of  the  legislature, 
except  so  far  as  restrained  by  the  constitutions  of  the  Commonwealth 
and  of  the  United  States,  to  declare  any  wilful  or  negligent  act  which 
causes  an  injury  to  person  or  property  within  its  territory  to  be  a 
crime,  and  to  provide  for  the  punishment  of  the  ofljender  upon  being 
apprehended  within  its  jurisdiction. 

"Whenever  any  act,  which,  if  committed  wholly  within  one  jurisdiction 
would  be  criminal,  is  committed  partly  in  and  partly  out  of  that  juris- 
diction, the  question  is  whether  so  much  of  the  act  as  operates  in  the 
county  or  state  in  which  the  offender  is  indicted  and  tried  has  been  de- 
clared to  be  punishable  by  the  law  of  that  jurisdiction. 

A  good  illustration  of  this  is  afforded  by  the  cases  of  bringing  stolen 
goods  from  one  jurisdiction  to  another.  It  has  been  held  from  the 
earliest  times  that  if  a  thief  steals  goods  in  one  county,  and  brings 
them  into  another,  he  ma}-  be  indicted  in  either  county,  because  his 
unlawful  carr3'ing  in  the  second  is  deemed  a  continuance  of  the  unlaw- 
ful taking,  and  so  all  the  essential  elements  of  larceny  exist  in  the 
second  ;  but  if  he  takes  the  goods  by  force,  although  this  is  robbery  in 
the  county  in  which  he  first  takes  them,  it  is  but  larceny  in  any  county 
into  which  he  afterwards  cariies  them,  because  no  violence  to  the  per- 
son has  been  used  in  the  latter.  1  Hale  P.  C.  507,  508,  53l  ;  2  Hale 
P.  C.  163  ;  4  Bl.  Com.  305.  If  he  steals  goods  on  the  high  seas  or  in 
a  foreign  country,  and  brings  them  into  this  state,  it  is  not  a  common 
law  larceny,  because  there  has  been  no  taking  against  the  law  which  is 
invoked  to  punish  him.  Butler's  Case,  13  Co.  53:  s.  c.  3  Inst.  113; 
Commonwealth  v.  Uprichard,  3  Gray,  434.  Yet  if  the  legislature  see 
fit  to  provide  that  the  bringing  into  the  state  of  goods  taken  without 
right  from  the  owner  in  a  foreign  country,  shall  be  punished  here  as 
larceny,  it  is  within  their  constitutional  authority  to  do  so.  People  v. 
Burke,  11  Wend.  129  ;  State  v.  Seay,  3  Stew.  123  ;  Hemmaker  v.  State, 
12  Missouri,  453.  By  a  series  of  decisions,  beginning  while  the  states 
of  this  Union  were  colonies  of  Great  Britain,  it  has  been  held  that  a 
bringing  into  Massachusetts  of  goods  stolen  in  another  colony  or  state 
subject  to  the  same  national  sovereignty  might  be  indicted  here  as  a 
larceny  at  common  law.  Commonwealth  v.  Andrews,  2  Mass.  14,  and 
cases  cited  ;  Commonwealth  v.  Holder,  9  Gra}',  7.  And  in  other  states, 
in  which  the  common  law  has  been  held  not  to  reach  such  a  case,  a 
statute  declaring  such  bringing  to  be  larceny  in  the  state  into  which  the 
goods  are  brought  has  been  acknowledged  to  be  valid  and  binding  upon 
the  courts.  Simmons  v.  Commonwealth,  5  Binn.  619;  Simpson  v. 
State,  4  Humph.  461 ;  Beal  v.  State,  15  lud.  378. 


222  COMMONWEALTH   V.   MACLOON.  [CHAP.  III. 

The  o-eneral  principle,  that  a  man  who  does  a  criminal  act  in  one 
county  'or  state  may  be  held  liable  for  its  continuous  operation  in 
another,  has  been  affirmed  in  various  other  cases.  Thus  a  man  who 
erects  a  nuisance  in  a  river  or  stream  in  one  county  or  state  is  liable, 
criminally  as  well  as  civilly,  in  any  county  or  state  in  which  it  injures 
the  land  of  another.  Bulwer's  Case,  7  Co.  2  b,  3  b  ;  2  Hawk.  c.  25, 
§  37  ;  Com.  Dig.  Action,  N.  3,  11  ;  Abbott,  C.  J.,  in  The  King  v.  Bur- 
dett,'4  B.  &  Aid.  175,  176  ;  Thompson  v.  Crocker,  9  Pick.  59  ;  Stillman 
V.  White  Rock  Manufacturing  Co.  3  Woodb.  &  Min.  538.  And  one 
who  publishes  a  libel  in  another  state,  in  a  newspaper  which  circulates 
in  this  commonwealth  also,  is  hable  to  indictment  here.  Common- 
wealth V.  Blanding,  3  Pick.  304.  There  is  no  more  reason  against 
holdino-  the  wrong-doer  criminally  liable  in  the  county  and  state  where 
his  victim  dies  from  the  continuous  operation  of  his  mortal  blow,  than 
in  those  to  which  the  flowing  water  carries  the  injurious  effect  of  his 
nuisance  to  property,  or  the  circulation  of  his  libel  extends  the  injury 
to  reputation. 

Criminal  homicide  consists  in  the  unlawful  taking  by  one  human 
beinf  of  the  life  of  another  in  such  a  manner  that  he  dies  within  a  year 
and  a  day  from  the  time  of  the  giving  of  the  mortal  wound.  If  com- 
mitted with  malice,  express  or  implie.d  by  law,  it  is  murder;  if  without 
malice,  it  is  manslaughter.  No  personal  injury,  however  grave,  which 
does  not  destroy  life,  will  constitute  either  of  these  crimes.  The  injury 
must  continue  to  affect  the  body  of  the  victim  until  his  death.  If  it 
ceases  to  operate,  and  death  ensues  from  another  cause,  no  murder  or 
manslaughter  has  been  committed.  But  if  the  bullet  remains  in  the 
body  so  as  to  press  upon  or  disturb  the  vital  organs  and  ultimately  pro- 
duce death,  or  the  wound  or  the  poison  causes  a  gradual  decline  of 
health,  ending  in  death,  the  injury  and  death  are  as  much  the  continu- 
ous operation  dnd  eflfect  of  the  unlawful  act  as  If  the  shot,  the  stab,  or 
the  poison  proves  instantly  fatal.  The  unlawful  intent  with  which  the 
wound  is  made  or  the  poison  administered  attends  and  qualifies  the  act 
until  its  final  result.  No  repentance  or  change  of  purpose,  after  inflict- 
ing the  injury  or  setting  in  motion  the  force  by  means  of  whicii  it 
is  inflicted,  will  excuse  the  criminal.  If  his  unlawful  act  is  the 
efflcient  cause  of  the  mortal  injury,  his  personal  presence  at  the  time  of 
its  beginning,  its  continuance,  or  its  result,  is  not  essential.  He  may 
be  held  guilty  of  homicide  by  shooting,  even  if  he  stands  afar  off,  out 
of  sight,  or  in  another  jurisdiction.  1  Hale  P.  C.  475  ;  People  v. 
Adams,  3  Denio,  207  ;  s.  c  1  Comst.  176,  179.  If  he  knowingly  lets 
loose  a  dangerous  beast,  which  runs  any  distance  and  then  kills  a  man  ; 
or  incites  a  madman  or  a  child  not  of  years  of  discretion  to  commit 
murder  in  his  absence,  whereby  any  one  is  killed  ;  or,  with  intent  to 
murder,  leaves  poison  with  another  person  to  be  administered  to  a 
third,  and  the  poison  is  administered  by  the  same  or  another  innocent 
agent,  and  causes  the  death  of  the  person  intended,  or  any  other  ;  he  is 
responsible  as  principal,  to  the  same  extent  as  if  personally  present  at 


SECT.  IV.]  COMMONWEALTH   V.    MACLOON.  223 

the  actual  killing.  1  Hale  P.  C.  430,  431,  615,  G17  ;  Regina  v.  Michael, 
9  C.  &  P.  356  ;  s.  c.  2  Mood}',  120 ;  People  v.  Adams,  supra.  And  if 
he  wilfull)'  Inflicts  a  wound  which  results  fatall}-,  he  is  not  excused  by 
the  fact  that  the  negligence  of  the  wounded  man  or  the  unskilful  treat- 
ment of  surgeons  hastens  or  contributes  to  the  death.  1  Hale  P.  C. 
428;  Commonwealth  v.  Hackett,  2  Allen,  136.  The  person  who  un- 
lawfully sets  the  means  of  death  in  motion,  whether  through  an  irre- 
sponsible instrument  or  agent,  or  in  the  body  of  the  victim,  is  the 
guilty  cause  of  the  death  at  the  time  and  place  at  which  his  unlawful 
act  produces  its  fatal  result;  and,  according  to  the  great  weight  of 
authority,  may  be  then  and  there  tried  and  punished,  under  an  express 
statute,  if  not  by  the  common  law. 

The  crime  not  being  murder  or  manslaughter  before  the  death,  an 
indictment  alleging  the  stroke  at  one  day  and  place,  and  the  death  at 
another  day  and  place,  is  good  if  it  alleges  the  murder  or  manslaughter 
to  have  been  at  the  time  and  place  of  the  death,  but  bad  if  it  alleges 
that  the  defendant  killed  and  murdered  the  deceased  at  the  day  and 
place  at  which  the  stroke  was  given,  "  for,"  in  the  words  of  Lord  Coke, 
"  though  to  some  purpose  the  death  hath  relation  to  the  blow,  yet  this 
relation,  being  a  fiction  in  law,  maketh  not  the  felony  to  be  then  com- 
mitted." 2  Inst.  318  ;  1  Hale  P.  C.  427  ;  2  Hale  P.  C.  188.  So  the 
year  and  day  "  after  the  deed,  —  ajyres  le  fait,"  within  which  by  the 
Statute  of  Gloucester  an  appeal  of  murder  must  be  brought,  was  held 
to  run  not  from  the  blow,  but  from  the  death,  "  for  before  that  tune  no 
felony  was  committed."  2  lust.  320;  1  Hale  P.  C.  427.  And  man- 
slaughter arising  out  of  a  blow  struck  in  one  count}',  followed  by  death 
in  another,  was  held  by  Mr.  Justice  Littledale  to  be  a  felony  "  begun  in 
one  county  and  completed  in  another,"  within  the  meaning  of  a  modern 
English  statute  authorizing  such  a  felon}'  to  be  indicted  in  either 
county.      Rex  v.  Jones,  1  Russell  on  Crimes  (3d  Eng.  ed.),  549,  550. 

"Whenever  at  common  law  murder  esca,ped  punishment  at  the  place 
of  the  death,  it  was  not  from  a  want  of  authority  in  the  government, 
but  from  a  defect  in  the  laws  regulating  the  mode  of  prosecution  and 
trial. 

In  the  beginning  of  the  reign  of  Edward  III.,  according  to  Chief 
Justice  Scrope,  if  a  man  died  in  one  county  of  a  wound  received  in  an- 
other, the  murderer  might  be  indicted  and  arraigned  in  the  county 
where  the  death  happened,  "  and  yet  the  cause  of  his  death  began  in 
the  other  county."  Fitz.  Ab.  Corone,  373.  At  a  later  period,  it  was 
held  that  where  a  man  was  feloniously  stricken  or  poisoned  in  one 
county,  and  died  in  another  county,  no  indictment  could  be  found  in 
either  county,  because  both  the  stroke  and  the  death  were  necessary  to 
constitute  the  crime,  and  the  jurors  of  one  county  could  not  inquire  of 
that  which  was  done  in  another,  "  unless,"  as  Lord  Hale  says,  ''  speci- 
ally enabled  by  act  of  parliament ;  "  and  for  this  reason  the  custom  at 
one  time  prevailed  of  taking  the  dead  body  into  the  county  where  the 
mortal  stroke  was  given,  and  having  an  indictment  found  and  tried 


224 


COMMONWEALTH    V,   MACLOON.  [CHAP.  III. 


there  ;  and,  in  carrying  ont  the  same  principle,  it  was  held  that  an 
appeal  of  murder,  which  required  no  indictment,  but  was  sued  out  by 
the  nearest  relation,  and  prosecuted  by  the  king  only  in  case  of  the  with- 
drawal of  the  appellant,  might  be  brought  in  the  county  of  the  death, 
although  the  mortal  stroke  was  given  in  another  county,  provided  there 
were  le^^al  means  of  summoning  a  jury  for  the  trial  out  of  both  counties, 
but  not^otherwise.  6  Hen.  VII.  10,  pi.  7  ;  3  Inst.  48,  49  ;  2  Hale  P.  C. 
163  ;  1  Stark.  Crim.  PI.  3,  and  notes. 

The  St  of  2  &  3  Edw.  VI.  c.  24,  begins  with  declaring,  "  Forasmuch 
as  the  most  necessary  office  and  duty  of  law  is  to  preserve  and  save 
the  life  of  man,  and  condignly  to  punish  such  persons  that  unlawfully 
and  wilfully  murder,  slay,  or  destroy  men,"  and,  after  reciting  the  de- 
fects in  the  previous  laws,  enacts,  '-for  redress  and  punishment  of 
which  offences  and  safeguard  of  man's  life,"  that  "where  any  person 
or  persons  hereafter  shall  be  feloniously  stricken  or  poisoned  in  one 
county,  and  die  of  the  same  stroke  or  poisoning  In  another  county,  then 
an  indictment  thereof  founden  by  jurors  of  the  county  where  the  death 
shall  happen,  whether  it  shall  be  founden  before  the  coroner  upon  the 
sight  of  such  dead  body,  or  before  the  justices  of  peace  or  other  justices 
or  commissioners  which  shall  have  authority  to  inquire  of  such  offences, 
shall  be  as  good  and  effectual  in  the  law,  as  if  the  stroke  or  poisoning 
had  been  committed  and  done  in  the  same  county  where  the  party  shall 
die,  or  where  such  indictment  shall  be  so  founden ;  any  law  or  usage  to 
the  contrary  notwithstanding."  That  statute,  passed  within  a  century 
before  the  settlement  of  Massachusetts,  and  manifestly  suitable  to  our 
condition,  would  seem  to  have  been  part  of  our  common  law.  Com- 
monwealth V.  Knowlton,  2  Mass.  534  ;  Report  of  the  Judges,  3  Binn, 
595,  620 ;  State  v.  Moore,  26  N.  H.  448. 

In  the  most  ancient  times  of  which  we  have  any  considerable  records, 
the  English  courts  of  common  law  took  jurisdiction  of  crimes  com- 
mitted at  sea,  both  by  English  subjects  and  by  foreigners.  Beufo  v. 
Holtham,  25  Edw.  I.,  in  Selden's  Notes  to  Fortescue,  c.  32 ;  Case  of 
the  Norman  Master  and  English  Seamen,  40  Assis.  25  ;  s.  c.  Fitz.  Ab. 
Corone,  216  ;  13  Co.  53,  54  ;  2  Hale  P.  C.  12,  13,  and  notes,  and  cases 
cited.  But  after  the  admiralty  jurisdiction  had  been  settled  by  the  Sts. 
of  13  and  15  Ric.  II.,  if  a  mortal  stroke  was  given  on  the  high  sea,  and 
the  person  stricken  came  to  land  in  England  and  died  there,  then, 
according  to  the  rule  established  before  the  St.  of  Edw.  VI.  in  the  case 
of  two  counties,  the  courts  of  common  law  could  not  try  the  murderer, 
because  no  jury  could  inquire  of  the  stroke  at  sea,  and  the  admiral 
could  not  try  him,  for  want  of  authority  to  inquire  of  the  death  on  land. 
3  Inst   48.  " 

Both  Lord  Coke  and  Lord  Hale,  however,  were  of  opinion  that  such  a 
murderer  could  not  wholly  escape  punishment,  although  they  differed 
as  to  the  mode  of  bringing  him  to  justice,  Co.  Lit.  74  b  ;  3  Inst.  48  ; 
2  Hale  P.  C.  12-20. 

Neither  Lord  Coke  nor  Lord  Hale  suggests  any  doubt  of  the  rightful 


SECT.  IV.]  COMMONWEALTH   V.   MACLOOX.  225 

power  of  the  legislature  to  pass  a  statute  to  punish  whoever  should 
cause  death  within  the  realm  b}'  an  injury  on  the  high  seas.  And  in 
1  729  the  parliament  of  Great  Britain  passed  a  statute,  declared  to  be 
"  for  preventing  an}'  failure  of  justice  and  taking  away  all  doubts 
touching  the  trial  of  murders  in  the  cases  hereinafter  mentioned,"  by 
which  it  was  enacted  that,  where  any  person  should  be  feloniously  stricken 
or  poisoned  upon  the  sea  or  at  any  place  out  of  England,  and  should 
die  of  the  same  stroke  or  poisoning  in  England  ;  or  where  any  person 
should  be  feloniously  stricken  or  poisoned  at  any  place  in  England,  and 
should  die  of  the  same  stroke  or  poisoning  upon  the  sea  or  at  an}-  place 
out  of  England  ;  in  either  of  said  cases  the  offenders,  both  principals 
and  accessories,  might  be  indicted,  tried,  convicted  and  sentenced  in 
tlie  county  in  England  in  which  such  death-stroke  or  poisoning  should 
happen  respectively,  with  the  same  effect  as  if  the  felonious  stroke  and 
ileath  thereby  ensuing,  or  poisoning  and  death  thereby  ensuing,  had 
happened  in  the  same  county.  St.  2  Geo.  II.  c.  21.  That  statute  did 
not  extend  to  the  colonies,  and  was  repealed  by  St,  9  Geo.  IV.  c.  31, 
§  1  ;  and  no  suggestion  appears  to  have  been  made,  while  it  was  in 
force,  of  its  being  limited  in  its  application  to  British  subjects.  4  Bl. 
Com.  303  ;  1  East  P.  C.  366.  The  only  published  exposition  of  it  is  in 
an  opinion  given  by  Sir  James  Marriott  as  advocate-general,  who, 
looking  upon  the  subject  in  the  view  of  the  law  of  nations,  wrote : 
"  With  respect  to  murders,  when  persons  die  in  a  foreign  country  of  a 
wound  received  within  this  realm,  or  die  in  this  realm  of  a  wound  re- 
ceived in  a  foreign  country,  in  either  alternative  the  party  giving  the 
wound,  and  his  accessor}'  or  accessories,  by  St.  2  Geo.  II.  c  21,  must 
be  tried  in  England,  the  statute  considering  the  cause  and  effect  as  one 
continuity  of  action  without  interval,  in  order  to  found  a  domestic  juris- 
diction and  to  reach  the  crime."  Forsyth's  Opinions  on  Constitutional 
Law,  218.  In  Tlie  King  v.  Farrel,  1  W.  Bl.  459,  Lord  Mansfield 
treated  the  question  whether  a  murder  by  a  mortal  stroke  on  the  high 
seas,  from  which  death  ensued  in  Ireland,  was  triable  in  Ireland,  as  de- 
pending upon  the  question  whether  there  was  any  Irish  statute  upon 
the  subject.  In  fact,  the  Irish  St.  of  10  Car.  I.  contained  provisions 
similar  to  the  English  Sts.  of  Edw.  VL  and  Geo.  II.  1  Gabbett's 
Crim.  Law,  501.  Thus  stood  the  law  of  the  mother  country  at  the 
time  of  the  American  Revolution. 

The  courts  of  the  United  States  have  held  that  a  mortal  stroke  on 
the  high  seas,  from  which  death  ensues  on  land,  either  in  a  foreign 
country  or  within  the  United  States,  cannot  be  indicted  under  an  act  of 
Congress  providing  for  the  punishment  of  murder  or  manslaughter  on 
the  high  seas.  The  reason  was  thus  stated  by  Mr.  Justice  Washington, 
in  the  leading  case:  "The  death,  as  well  as  the  mortal  stroke,  must 
happen  on  the  high  seas,  to  constitute  a  murder  there."  "  The  present 
is  a  case  omitted  in  the  law  ;  and  the  indictment  cannot  be  sustained." 
"  It  would  be  inconsistent  with  common  law  notions  to  call  it  murder; 
but  Congress,  exercising  the  constitutional  power  to  define  felonies  on 

15 


226  COMMONWEALTH   V.   MACLOON.  [CIIAP.  III. 

the  hi-h  seas,  mav  certainly  provide  that  a  mortal  stroke  on  the  high 
sea,  ^"herever  the"'death  may  happen,  shall  be  adjudged  to  be  a  felony 
United  States  ..  M'Gill,  4  Dall.  427  ;  s.  c.  1  Wash.  C.  C.  463.  United 
States  ..  Armstrong,  2  Curtis  C.  C.  446.  Congress  has  accordingly 
passed  statutes  providing  for  the  punishment,  at  first  of  murder  only, 
and  afterwards  of  manslaughter,  by  a  blow,  wound  or  poison  on  the 
h\ah  seas  or  in  anv  river  or  bay,  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States,  and  out  of  the  jurisdiction  of  any 
particular  state,  followed  by  death  on  land.     U.  S.  Sts.  1825,  c.  65,  §  4  ; 

1857,  c.  116,  §  1.  ^  V  •  /I    1 

The  leo-islature  of  the  Commonwealth,  from  an  earlier  period,  has 
asserted  The  right  of  punishing  such  crimes  in  the  county  where  they 
take  final  effect  by  destroying  life.     At  February  term,  1795,  of  this 
court  in  Suffolk,  a  conviction  of  manslaughter  at  common  law  was  had 
upon  an  indictment  charging  that  Joseph  Hood  on  the  high  seas  mor- 
tally injured  John  Antony,  by  assaulting  and  beating  him  with  a  rope 
and  a  stave  and  his  hands  and  feet,  and  exposing  him  without  sufficient 
covering  to  the  cold,  winds,  and  storms,  and  depriving  him  of  necessary 
food,  of^all  which  injuries  he  languished  on  the  high  seas  and  at  Boston 
in  said  county,  and  died  at  Boston.     At  August  term,  1795,  judgment 
was  arrested,  upon  the  ground  that  the  indictment  charged  that  the 
cause  of  death  arose  on  the  high  seas  and  not  within  the  jurisdiction  of 
this  court.     Hood's  Case,  Rec.  1795,  fol.  216,  and  papers  on  file.     It 
was  to  cure  the  defect  thus  declared  to  exist  in  our  law,  that  the  legis- 
lature at  its  next  session,  on  the  15th  of  February,  1796,  passed  the 
St.  of  1795,  c.  45,  §  2,  by  which  it  was  enacted  that  "  where  any  per- 
son hereafter  shall  be  feloniously  stricken,  poisoned,  or  injured,  on  the 
high  seas,  and  without  the  limits  of  this  Commonwealth,  and  die  of  the 
same  stroke,  poisoning  or  injury  in  any  county  thereof,  that  then  an  in- 
dictment thereof,  found  by  the  grand  jurors  of  the  county  where  the 
death  shall  happen,  before  the  justices  of  the  Supreme  Judicial  Court 
there  held,  shall  be  as  good  and  effectual  in  law  as  if  the  stroke  had 
been  given  or  the  poisoning  or  injury  done  in  the  same  county  where 
the  party  shall  die."     By  later  statutes,  all  indictments  are  returned 
into  the  lower  court.     Webster  v.  Commonwealth,  5  Cush.  386  ;    Gen. 
Sts.  c.  171,  §§  1  &  seq.,  21  &  seq.     But  the  substance  of  this  provision, 
omitting  the  word  "  feloniously"  (which  might  be  somewhat  difficult  of 
application  to  an  act  not  done  under  laws  of  which  our  courts  have 
judicial  knowledge)  and  extended  to  cases  in  which  the  mortal  wound 
or  injury  is  given  on  land  without  the  limits  of  the  Commonwealth,  has 
iieen  embodied  in  the  Rev.  Sts.  c.  133,  §  9,  and  thence,  with  merely 
verbal  changes,  in  the  Gen.  Sts.  c.  171,  §  19,  on  which  this  indictment 
is  founded.     Neither  of  these  statutes  appears  to  have  been  made  the 
subject  of  judicial  exposition.     But  a  law  which  has  been  kept  on  the 
statute  book  for  such  a  length  of  time  by  repeated  enactments  is  not  to 
be  lightly  declared  invalid  for  exceeding  the  legislative  power.     And  it 
comes  within  the  principle  by  which  the  preceding  section,  relating  to 


SECT.  IV.]  COMMONWEALTH   V.   MACLOON.  227 

death  resulting  in  one  count}-  from  an  unlawful  act  in  another,  was  held 
valid  in  Commonwealth  v.  Parker,  2  Pick.  550,  before  cited. 

A  similar  enactment,  adding,  after  "  high  seas,"  "  or  on  any  other 
navigable  waters, "has  been  sustained  upon  full  argument  and  consider- 
ation by  the  Supreme  Court  of  Michigan.     Tyler  v.  People,  8  Mich.  320. 

The  most  plausible  form  of  the  argument  against  the  jurisdiction  is, 
that  the  coming  into  the  state  is  the  act  not  of  the  wrong-doer,  but  of 
the  injured  person,  and  therefore  should  not  subject  the  former  to  the 
jurisdiction,  merely  because  the  latter  happens  to  die  there.  But  it  is 
the  nature  and  the  right  of  every  man  to  move  about  at  his  pleasure, 
except  so  far  as  restrained  by  law ;  and  whoever  gives  him  a  mortal 
blow  assumes  the  risk  of  this,  and  in  the  view  of  the  law,  as  in  that  of 
morals,  takes  his  life  wherever  he  happens  to  die  of  that  wound  ;  and 
may  be  there  punished  if  the  laws  of  the  country  have  been  so  framed 
as  to  cover  such  a  case. 

In  State  v.  Carter,  3  Butcher,  499,  the  supreme  court  of  New  Jersey 
held  that  a  man  could  not  be  indicted  in  that  state  for  manslaughter  by 
mortal  bruises  given  in  New  York,  of  which  the  person  injured  died  in 
New  Jersey.  But  the  only  statute  of  that  state  upon  the  subject,  as 
was  observed  by  Mr.  Justice  Vredenburgh  in  delivering  the  judgment 
of  the  court,  evidently  relates  to  murder  only,  and  not  to  manslaughter. 
His  remarks  upon  the  power  of  the  legislature  of  New  Jersey  to  provide 
for  the  punishment  of  such  a  case  are  therefore  purely  obiter  dicta  ; 
and  they  are  unsupported  by  any  reference  to  authorities,  and  present 
no  considerations  which  require  further  discussion. 

Grosvenor  v.  St.  Augustine,  12  East,  244,  was  not  a  criminal  case, 
but  in  the  nature  of  an  action  against  the  hundred  on  the  St.  of  19 
Geo.  II.  c.  34,  §  6,  which  provided  that  if  any  officer  of  the  revenue 
should  be  beaten,  wounded,  maimed  or  killed  by  a  smuggler,  the  inhabi- 
tants of  the  lath  in  such  counties  as  were  divided  into  laths,  and  in 
other  counties  the  inhabitants  of  the  hundred,  "  where  such  fact  shall 
be  committed,"  should  pay  all  damages  suffered  by  such  beating, 
wounding  or  maiming,  and  one  hundred  pounds  to  the  executor  or 
administrator  of  each  person  so  killed.  It  was  indeed  held  that  this  pen- 
alty might  be  recovered  by  the  executor  of  a  revenue  officer  who  re- 
ceived a  mortal  wound  in  a  boat  between  high  and  low  water  mark,  of 
which  he  afterwards  died  on  the  high  sea,  by  a  shot  fired  from  the  shore 
within  the  lath.  But  that  was  upon  the  construction  of  the  particular 
statute,  as  appears  from  Lord  Ellenborough's  judgment.  "  The  shot 
which  produced  the  death,  having  been  fired  from  the  shore  within  the 
latli,  brings  the  case  within  the  fair  meaning  of  the  act,  the  object  of 
which  was  to  make  the  inhabitants  of  that  place  where  the  act  was 
done  which  caused  the  death  answerable  for  it,  in  order  to  interest  them 
in  repressing  the  offences  against  which  the  act  was  levelled."  All  the 
authorities  agree  that  the  mere  fact  of  the  shot  being  fired  from  the 
shore  would  not  give  the  courts  of  common  law  jurisdiction  of  an  in- 
dictment for  homicide.  Rex  v.  Coombes,  2  Leach  (4th  ed.),  388;  2 
Chalmers  Opinions,  217;  United  States  v.  Davis,  2  Sumner,  485. 


228  COMMONWEALTH   V.   MACLOON.  [CHAP=  UI. 

The  learned  counsel  for  the  defendants  much  relied  on  the  case  of 
Rogina  V.  Lewis,  Dearsly  &  Bell,  182  ;  S  C  7  Cox  Crim.  Cas.  277. 
That  was  an  indictment  on  the  St.  of  9  Geo.  IV.  c.  31,  §  8,  which  was 
held  not  to  cover  the  case  of  a  foreigner  dying  in  England  from  injuries 
inflicted  by  another  foreigner  in  a  foreign  vessel  upon  the  high  seas. 
But,  although  at  the  argument  two  of  the  judges,  Mr.  Justice  Coleridge 
and  Mr.  Baron  Martin,  expressed  doubts  whether  parliament  could 
legislate  for  the  punishment  of  such  a  crime,  none  of  the  judges  except 
Mr  Justice  Crompton  denied  the  power  ;  Lord  Chief  Justice  Cockburn 
suggested  that  the  section  under  which  the  indictment  was  found,  taken 
HI  connection  with  the  next  preceding  section,  relating  to  murder  or 
manslaughter  in  a  foreign  country,  which  was  in  terms  limited  to 
British  subjects,  must  be  equally  limited  ;  and  after  advisement  the 
opinion  of  the  court  was  put  upon  that  ground  only.  The  case  of  Nga 
Hoong  V.  The  Queen,  7  Cox  Crim.  Cas.  489,  was  decided  upon  like 
considerations.  Both  of  those  cases,  therefore,  merely  held  that  the 
whole  tenor  of  the  statute  in  question  showed  that  it  was  not  intended 
to  cover  cases  of  foreigners  sailing  on  the  high  seas  under  a  foreign 
flag  ,  applying  the  same  rule  of  construction  as  the  Supreme  Court  of 
the  United  States  in  United  States  v.  Palmer,  3  Wheat  631-634,  and 
United  States  v.  Pirates,  5  Wheat.  195-197.  Whether  an  explicit 
statute  of  the  state  where  a  murdered  man  dies  will  warrant  the  in- 
dictment and  trial  of  his  murderer  if  found  within  the  jurisdiction  is 
quite  a  different  question. 

Neither  of  the  statutes  of  the  Commonwealth  upon  this  subject  has 
ever  contained  any  words  limiting  the  description  of  the  persons  by 
whom  the  offence  might  be  committed  :  and  the  existing  statute  clearly 
manifests  the  intention  of  the  legislature  to  punish  all  who  without 
legal  justification  cause  the  death  of  any  person  within  the  Common- 
wealth, wherever  the  first  wrongful  act  is  done,  or  of  whatever  countr}- 
the  wrong-doer  is  a  citizen.  The  power  of  the  Commonwealth  to  punish 
the  causing  of  death  within  its  jurisdiction  is  wholly  independent  of  the 
power  of  the  United  States,  or  of  the  nation  to  which  the  vessel  be- 
longs, to  punish  the  Inflicting  of  the  injurj-on  the  high  seas.  And  upon 
full  consideration  the  court  is  unanimously  of  opinion  that  there  is 
nothing  in  the  Constitution  or  laws  of  the  United  States,  the  law  of 
nations,  or  the  Constitution  of  the  Commonwealth,  to  restrain  the  legis- 
lature from  enacting  such  a  statute. 

Exceptions  overruled. 


SECT.  IV.]  PEOPLE   V.    BOTKIN.  229 

PEOPLE   V.  BOTKIN. 
Supreme  Court  of  California.     1901. 

[Reported  132  Cal.  231.] 

Garoutte,  J.  Defendant  has  been  convicted  of  the  crime  of  mur- 
der, and  prosecutes  this  appeal.  The  charge  of  the  court  given  to  the 
jury  upon  the  law  contained  declarations  which  were  held  to  be  unsound 
in  People  v.  Verneseneckockockhoff,  129  Cal.  497.  In.  view  of  the 
decision  in  that  case,  the  attorne3--general  concedes  that  the  judgment 
should  be  reversed  and  the  cause  remanded  to  the  trial  court  for 
further  proceedings.  But  defendant  claims  that  she  is  not  triable  at 
all  by  the  courts  of  this  state,  and  this  contention  should  now  be  passed 
upon.  For  if  maintainable  a  second  trial  becomes  a  useless  expenditure 
of  money,  time,  and  labor,  and  necessarih*  should  not  be  had. 

For  the  purposes  of  testing  the  claim  of  lack  of  jurisdiction  in  the 
courts  of  California  to  try  defendant,  the  facts  of  this  case  ma}'  be 
deemed  as  follows  :  Defendant,  in  the  city  and  county  of  San  Francisco, 
state  of  California,  sent  by  the  United  States  mail  to  Elizabeth  Dun- 
ning, of  Dover,  Delaware,  a  box  of  poisoned  candy,  with  intent  that 
said  Elizabeth  Dunning  should  eat  of  the  cand}'  and  her  death  be 
caused  thereb}'.  The  candy  was  received  b}'  the  party  to  whom  ad- 
dressed, she  partook  thereof,  and  her  death  was  the  result.  Upon 
these  facts  may  the  defendant  be  charged  and  tried  for  the  crime  of 
murder  in  the  courts  of  the  state  of  California?  We  do  not  find  it 
necessary  to  declare  what  the  true  rule  may  be  at  common  law  upon 
this  state  of  facts,  for,  in  our  opinion,  the  statute  of  this  state  is  broad 
enough  to  cover  a  case  of  the  kind  here  disclosed.  There  can  be  no 
question  but  that  the  legislature  of  this  state  had  the  power  to  declare 
that  the  acts  here  pictured  constitute  the  crime  of  murder  in  this  state, 
and  we  now  hold  that  the  legislative  body  has  made  that  declaration. 
/^Section  27  of  the  Penal  Code  reads  as  follows  :  — 

"The  following  persons  are  liable  to  punishment  under  the  laws  of 
this  state :  — 

^-^^'  1.  All  persons  who  commit,  in  whole  or  in  part,  any  crime  within 
this  state  ; 

"  2.  All  who  commit  larceny'  or  robber}'  out  of  this  state,  and  bring 
to,  or  are  found  with  the  property  stolen,  in  this  state  ; 

"3.  All  who,  being  out  of  this  state,  cause  or  aid,  advise  or  en- 
courage, another  person  to  commit  a  crime  within  this  state,  and  are 
afterwards  found  therein." 

Subdivision  1  covers  the  facts  of  this  case.  The  acts  of  defendant 
constituted  murder,  and  a  part  of  those  acts  were  done  b}'  her  in  this 
state.  Preparing  and  sending  the  poisoned  candy  to  Elizabeth  Dun- 
ning,   coupled    with  a  murderous    intent,    constituted   an   attempt   to 


230  PEOPLE   V.   BOTKIN.  [CHAP.  III. 

commit  murder,  and  defendant  could  have  been  prosecuted  in  this  state 
for  that  crime,  if,  for  any  reason,  the  candy  had  failed  to  fulfill  its 
deadly  mission.  That  being  so,  —  those  acts  being  sufficient,  standing 
alone,  to  constitute  a  crime,  and  those  acts  resulting  in  the  death  of 
the  person  sought  to  be  killed,  —  nothing  is  plaiifer  than  that  the 
crime  of  murder  was  in  part  committed  within  this  state.  The  murder 
being  committed  in  part  in  this  state,  the  section  of  the  law  quoted  de- 
clares that  persons  committing  murder  under  those  circumstances  "  are 
hable  to  punishment  under  the  laws  of  this  state."  The  language 
quoted  can  have  but  one  meaning,  and  that  is :  a  person  committing 
a  murder  in  part  in  this  state  is  punishable  under  the  laws  of  this  state, 
the  same  as  though  the  murder  was  wholly  committed  in  this  state. 

Counsel  for  defendant  insist  that  this  section  contemplates  only 
offences  committed  by  persons  who,  at  the  time,  are  without  the  state. 
This  construction  is  not  sound.  For  as  to  subdivision  1,  it  is  not  at 
all  plain  that  a  person  without  the  state  could  commit,  in  whole,  a 
crime  within  the  state.  Again,  if  the  crime  in  whole  is  committed 
within  the  state  by  a  person  without  the  state,  such  a  person  could 
not  be  punished  under  the  laws  of  this  state,  for  the  state  has  not  pos- 
session of  his  body,  and  there  appears  to  be  no  law  by  which  it  may 
secure  that  possession.  Indeed,  all  of  the  subdivisions  of  the  section 
necessarily  contemplate  a  case  where  the  person  is,  or  comes,  within  the 
state.  If  the  framers  of  the  section  had  intended  by  subdivision  1  to 
cover  the  case  of  persons  onlj'  who  were  without  the  state  when  the 
acts  were  committed  which  constitute  the  crime,  they  would  have  in- 
serted in  the  section  the  contingency  found  in  the  remaining  sub- 
divisions, which  subdivisions  contemplate  a  return  to  the  state  of  the 
person  committing  the  crime.  It  is  plain  that  the  section  by  its 
various  provisions  was  intended  to  embrace  all  2^&'^so7is  punishable 
under  the  laws  of  the  state  of  CaUfornia.  The  defendant,  having 
committed  a  murder  in  part  in  the  state  of  California,  is  punishable 
under  the  laws  of  the  state,  exactly  in  the  same  wa}-,  in  the  same 
courts,  and  under  the  same  procedure,  as  if  the  crime  was  committed 
entirel}'  within  the  state. 

For  the  foregoing  reasons  the  judgment  and  orders  are  reversed  and 
the  cause  remanded. 


SECT.  I.]  REX  V.  MARTIN.  231 

CHAPTER  IV. 
THE    OFFENCE:    MODIFYING    CIRCUMSTANCES. 


SECTION  I. 

Participation  of  a  Public  Officer. 

REX   V.   MARTIN. 
Crown  Case  Reserved.     1811. 

[Reported  Russell  ^-  Ryan,  196.] 

The  defendant  was  tried  before  Mr.  Baron  Wood,  at  the  Lent 
assizes,  for  Northamptonshire,  in  the  year  1811,  upon  an  indictment  for 
a  misdemeanor  in  unlawful!}-  aiding  and  assisting  Antoine  Mallet,  a 
prisoner  at  war  detained  within  certain  limits  at  Northampton,  to 
escape  and  go  at  large  out  of  the  said  limits,  and  conducting  him 
and  bringing  him  to  Preston  Turnpike  Gate,  at  Northampton,  with 
intent  to  enable  and  assist  him  to  escape  and  go  at  large  out  of  this 
kingdom  to  parts  beyond  the  seas. 

The  case  appeared  to  be  this. 

The  defendant  lived  at  Wantage,  in  Berkshire  ;  she  came  to  Newport 
Pagnell,  and  there  hired  a  post-chaise  to  take  her  to  Northampton,  and 
back.  The  post-boy  drove  her  to  Northampton,  where  she  got  out,  and 
the  post-boy  went  to  his  usual  inn,  with  orders  to  return  to  the  place 
where  he  set  her  down,  after  he  had  baited  and  rested  his  horses.  The 
post-boy  in  about  an  hour  returned,  took  the  defendant  up  again  in 
Northampton,  and  proceeded  towards  Newport,  and  when  they  had  just 
got  without  the  town  (and  within  the  limits  allowed  to  the  prisoners  of 
war,  being  one  mile  from  the  extremity  of  the  town),  she  called  to  the 
post-boy  to  stop  and  take  up  a  friend  of  hers  that  was  walking  along 
the  road.  The  post-boy  stopped,  and  Mallet  got  in,  and  they  pro- 
ceeded together  to  Preston  Turnpike  Gate  (which  is  without  the  afore- 
said limits),  in  the  road  to  Newport,  when  they  were  both  stopped  and 
apprehended  by  the  commissary,  or  agent  for  French  prisoners  and  his 
assistant  who  had  watched  them. 

It  appeared  in  evidence  that  there  was  no  real  escape  on  the  part  of 
Mallet,  but  that  he  was  employed  by  the  agent  for  French  prisoners, 
under  the  direction  of  the  Transport  Board  to  detect  the  defendant,  who 
was  supposed  to  have  been  instrumental  in  the  escape  of  many  French 
prisoners  from  Northampton,  and  that  all  the  acts  done  by  Mallet,  the 
contract  for  the  money  to  be  paid  to  the  defendant,  and  the  place  to 
which  they  were  to  go,  before  they  would  be  stopped,  were  previously 
concerted  between  the  agent  for  the  prisoners  and  Mallet,  and  Mallet 
had  no  intention  to  go  away  or  escape. 


232  GRIMM   V.    UNITED    STATES.  [CIIAP.  IV. 

It  was  objected  to  by  the  counsel  for  the  defendant  that  the  commis- 
sary, having  given  license  to  Mallet  to  go  to  the  place  he  did  go  to,  had 
enlarged  the°limits  of  his  parole  to  that  place,  and  therefore  Mallet 
coukfnot  be  said  to  have  escaped,  nor  could  the  defendant  be  said  to 
have  assisted  him  in  escaping  out  of  the  limits  of  his  parole. 

The  learned  judge  proceeded  in  the  trial,  and  the  defendant  was 
convicted,  but  he  respited  the  judgment  and  reserved  the  point  for  the 
consideration  of  the  judges. 

In  Trinity  term,  15th  June,  1811,  all  the  judges  met  (except  Law- 
rence, J.,)  when  they  held  the  conviction  wrong,  inasmuch  as  the 
prisoner  never  escaped  or  intended  to  escape. 


GRIMM  V.  UNITED  STATES. 

Supreme  Court  of  the  United  States.     1895. 

^Reported  156  U.  S.    604.] 

Indictment  under  Rev.  St.  §  3893  for  mailing  obscene  pictures.^ 
Brewer,  J.  ...  A  final  matter  complained  of  grows  out  of  these  facts  : 
It  appears  that  the  letters  to  defendant  —  the  one  signed  "Herman 
Huntress,"  described  in  the  second  count,  and  one  signed  "  William  W. 
Waters,"  described  in  the  fourth  count  —  were  written  by  Robert  W. 
JMcAfee;  that  there  were  no  such  persons  as  Huntress  and  Waters; 
that  McAfee  was  and  had  been  for  years  a  post-office  inspector  in  the 
employ  of  the  United  States,  and  at  the  same  time  an  agent  of  the 
Western  Society  for  the  Suppression  of  Vice  ;  that  for  some  reasons 
not  disclosed  by  the  evidence  McAfee  suspected  that  defendant  was 
engaged  in  the  business  of  dealing  in  obscene  pictures,  and  took  this 
method  of  securing  evidence  thereof;  that  after  receiving  the  letters 
written  by  defendant,  he,  in  the  name  of  Huntress  and  Waters,  wrote 
for  a  supply  of  the  pictures,  and  received  from  defendant  packages  of 
pictures  which  were  conceded  to  be  obscene.     Upon  these  facts  it  is 
insisted  that  the  conviction  cannot  be  sustained  because  the  letters  of  de- 
fendant were  deposited  in  the  mails    at  the  instance  of  the  govern- 
ment, and  through  the  solicitation  of  one  of  its  officers  ;  that  tliey  were 
directed  and  mailed  to  fictitious  persons ;  that  no  intent  can  be  imputed 
to  defendant  to  convey  information  to  other  than  the  persons  named 
in  the  letters  sent  by  him,  and  that  as  they  were  fictitious   persons 
there  could  in  law  be  no  intent  to  give  information  to  any  one.     This 
objection  was  properly  overruled  by  the  trial  court.     There  has  been 
much  discussion  as  to  the  relations  of  detectives  to  crime,  and  counsel 
f  )r  defendant  relies  upon  the  cases  of  United  States  v.  Whittier,  5 
Dillon,   35  ;  United   States  v.  Matthews,  35   Fed.   Rep.  890 ;  United 
States  V.  Adams,  59  Fed.  Rep.  674  ;  Saunders  v.  People,  38  Michigan, 

1  The  statement  of  facts  and  part  of  the  opinion,  dealing  with  the  sufficiency  of 
the  indictment,  are  omitted.  —  Ed. 


SECT.  I.]  GRIMM    V.    UNITED   STATES.  233 

218,  in  support  of  the  coutention  that  no  conviction  can  be  Sustained 
under  the  facts  in  this  case. 

It  is  unnecessary  to  review  these  cases,  and  it  is  enough  to  say  that 
we  do  not  think  they  warrant  the  contention  of  counsel.  It  does  not 
appear  that  it  was  the  purpose  of  the  post-otlice  inspector  to  induce  or 
solicit  the  commission  of  a  crime,  but  it  was  to  ascertain  whether  the 
defendant  was  engaged  in  an  unlawful  business.  The  mere  facts  that 
the  letters  were  written  under  an  assumed  name,  and  that  he  was  a 
government  official  —  a  detective,  he  may  be  called  —  do  not  of  them- 
selves constitute  a  defence  to  the  crime  actually  committed.  The 
official,  suspecting  that  the  defendant  was  engaged  in  a  business  offen- 
sive to  good  morals,  sought  information  directly  from  him,  and  the 
defendant  responding  thereto,  violated  a  law  of  the  United  States  by 
using  the  mails  to  convey  such  information,  and  he  cannot  plead  in 
defence  that  he  would  not  have  violated  the  law  if  inquiry  had  not 
been  made  of  him  by  such  government  official.  The  authorities  in 
support  of  this  proposition  are  many  and  well  considered.  Among 
others  reference  may  be  made  to  the  cases  of  Bates  v.  United  States, 
10  Fed.  Rep.  92,  and  the  authorities  collected  in  a  note  of  Mr.  Whar- 
ton, on  page  97;  United  States  v.  Moore,  19  Fed.  Rep.  30,  United 
States  i\  Wight,  38  Fed.  Rep.  106,  in  which  the  opinion  was  delivered 
by  Mr.  Justice  Brown,  then  District  Judge,  and  concurred  in  by 
Mr.  Justice  Jackson,  then  Circuit  Judge ;  United  States  v.  Dorsey, 
40  Fed.  Rep.  752  ;  Commonwealth  v.  Baker,  155  Mass.  287,  in  which 
the  court  held  that  one  who  goes  to  a  house  alleged  to  be  kept  for 
illegal  gamiug,  and  engages  in  such  gaming  himself  for  the  express 
purpose  of  appearing  as  a  witness  for  the  government  against  the  pro- 
prietor, is  not  an  accomplice,  and  the  case  is  not  subject  to  the  rule 
that  no  conviction  should  be  had  on  the  uncorroborated  testimony 
of  an  accomplice;  People  v.  Noelke,  94  N.  Y.  137,  in  which  the  same 
doctrine  was  laid  down  as  to  the  purchaser  of  a  lottery  ticket,  who 
purchased  for  the  purpose  of  detecting  and  punishing  the  vendor ; 
State  V.  Jansen,  22  Kansas,  498,  in  which  the  court,  citing  several  au- 
thorities, discusses  at  some  length  the  question  as  to  the  extent  to  which 
participation  by  a  detective  affects  the  liability  of  a  defendant  for 
a  crime  committed  by  the  two  jointly ;  State  v.  Stickney,  53  Kansas, 
308.  But  it  is  unnecessary  to  multiply  authorities.  The  law  was 
actually  violated  by  the  defendant;  he  placed  letters  in  the  post- 
office  which  conveyed  information  as  to  where  obscene  matter  could 
be  obtained,  and  he  placed  them  there  with  a  view  of  giving  such  infor- 
mation to  the  person  who  should  actually  receive  those  letters,  no 
matter  what  his  name ;  and  the  fact  that  the  person  who  wrote  under 
these  assumed  names  and  received  his  letters  was  a  government 
detective  in  no  manner  detracts  from  his  guilt. 

These  are  all  the  questions  presented  b}-  counsel.  We  see  no  error 
in  the  rulings  of  the  trial  court,  and  the  judgment  is,  therefore. 

Affirmed. 


234  PEOPLE   V.   MILLS.  [CHAP.  IV. 

I  H  -^ 
PEOPLE  V.  MILLS. 
Court  of  Appeals  of  New  York.     1904. 

[Rejwrted  178  jV.y.  274.] 

Indictment  for  theft  of  public  records.  The  defendant  was  con- 
victed of  an  attempt  to  comrait  larceny  of  the  records.  The  defendant, 
desiring  to  have  a  certain  indictment  removed  from  the  records,  offered 
an  assistant  district  attorney  a  bribe  to  remove  and  give  it  up. 
The  district  attorney  being  informed  of  the  scheme  directed  his  assist- 
ant seemingly  to  comply  with  it ;  the  assistant  thereupon,  for  the  pur- 
pose of  apprehending  the  defendant,  removed  the  indictment  and  handed 
it  to  the  defendant,  who  was  thereupon  arrested  by  police  officers  in 
waiting.  A  judgment  of  conviction  was  affirmed  by  the  Appellate  Divi- 
sion, and  an  appeal  was  taken. ^ 

Vann,  J.  The  indictments  against  Dr.  Flower  were  records  or  doc- 
uments filed  in  a  public  office,  under  the  authority  of  law.  (Code  Crim. 
Pro.  §  272,  Code  Civ.  Pro.  §  866.)  The}'  were  the  property  of  the 
state  and  a  wilful  and  unlawful  removal  of  them  constituted  a  crime 
under  section  94  of  the  Penal  Code.  An}'  one  who  unlawfully  obtained 
or  appropriated  them  was  guilty  of  grand  larceny  in  the  second  degree, 
according  to  the  provisions  of  another  section  of  the  same  statute. 
(Penal  Code,  §  531.)  Whoever  is  guilty  of  violating  either  section  may 
be  convicted  of  an  attempt  to  commit  the  offence  specified  therein, 
even  if  it  appears  on  the  trial  that  the  crime  was  fully  consummated, 
unless  the  court  in  its  discretion  discharges  the  jury  and  directs  the 
defendant  to  be  tried  for  the  crime  itself,  which  was  not  done  in  the 
case  before  us.  (Code  Crim.  Pro.  §§35  and  685).  The  jury  found 
the  defendant  guilty  of  an  attempt  both  to  remove  and  to  steal  the  indict- 
ments, and  after  affirmance  by  the  Appellate  Division  we  are  confined 
in  our  review  to  such  questions  as  were  raised  by  exceptions  taken 
during  the  trial. 

In  view  of  the  able  and  exhaustive  opinion  of  the  Appellate  Division, 
the  only  question  we  feel  called  upon  to  consider  is  tiiat  raised  by  the 
challenge  of  the  learned  counsel  for  the  appellant  in  the  nature  of 
a  demurrer  to  the  evidence.  He  claims  that  even  on  the  assumption 
that  all  the  evidence  for  the  prosecution  is  true,  still  the  facts  thus 
proved  do  not  constitute  the  crime  charged  in  either  count  of  the 
indictment.  His  argument  is  that  the  object  of  the  district  attorney 
was  not  to  detect,  but  to  create  a  crime,  and  that  no  crime  was  com- 
mitted by  the  defendant  in  taking  the  indictments  into  his  possession, 
because  he  took  them  with  the  consent  of  the  state  as  represented  by 
the  district  attorney. 

The  flaw  in  this  argument  is  found  in  the  fact  that  the  records  were 
the  property  of  the  state,  not  of  the  district  attorney,  and  that  the  latter 

1  This  short  statement  is  substituted  for  the  longer  statement  of  facts  by  the  Repor- 
ter.    Part  of  the  opinion  is  omitted. —  Ed. 


SECT.  I.]  PEOPLE    V.    MILLS.  235 

could  not  lawfully  give  them  awaj-  or  iiermit  them  to  be  taken  b}-  the 
defendant.  Purit_y  of  intention  only  could  prevent  the  action  of  the 
district  attorney  from  being  a  crime  on  his  part.  This  is  true  also  as 
to  the  detective,  for  if  either  had  in  fact  intended  that  the  defendant 
should  permanently  remove  the  indictments,  and  steal,  appropriate  or 
destroy  them,  he  would  have  come  within  the  statute.  Neither  of  those 
officers  represented  the  state  in  placing  the  records  where  the  defendant 
could  take  them,  but  each  was  acting  as  an  individual  only.  Neither 
liad  the  right  or  power,  as  a  public  officer,  to  deliver  them  to  the  de- 
fendant, and  if  either  had  acted  with  an  evil  purpose,  his  act  would 
have  been  criminal  in  character.  .  .  . 

We  shall  not  review  the  authorities  cited  on  either  side,  for  that  duty 
has  been  so  thoroughl}'  discharged  by  the  Appellate  Division  that  we 
can  throw  no  further  light  upon  the  subject.  We  merely  state  that  an 
important  distinction  between  this  case  and  those  relied  upon  b}'  tlie 
appellant  is  found  in  the  difference  between  public  and  private  owner- 
ship of  the  property  taken  by  the  accused.  In  most  cases  some  third 
person  is  injured  by  the  crime  and  is  directly  or  indirectly  the  com- 
plainant, but  in  this  case  the  state  was,  as  it  must  be  in  all  criminal 
cases,  the  prosecutor  and  it  was  also  the  injured  party,  for  its  property 
was  the  subject  of  the  attempt  at  larceny.  If  an  individual  owner  vol- 
untarily deUvers  his  property  to  one  who  wishes  to  steal  it  there  is  no 
trespass,  but  when  the  propert}-  of  the  state  is  delivered  by  any  one, 
under  any  circumstances,  to  any  person  for  the  purpose  of  having  him 
steal  it  and  he  takes  it  into  his  possession  with  intent  to  steal  it,  there 
is  a  trespass  and  the  attempt  is  a  crime.  The  state  did  not  solicit  or 
persuade  or  tempt  the  defendant,  any  more  than  it  took  his  money 
when  he  handed  it  over  to  the  detective.  Neither  did  the  district  attor- 
ney', as  such,  but  Mr.  Jerome  did,  acting  as  an  individual,  with  the  best 
of  motives,  but  without  authority  of  law  and,  hence,  his  action  did  not 
bind  the  state.  Wliile  the  courts  neither  adopt  nor  approve  the  action 
of  the  officers,  which  they  hold  was  unauthorized,  still  the}'  should  not 
hesitate  to  punish  the  crime  actually  committed  by  the  defendant.  It 
is  their  dutj'  to  protect  the  innocent  and  punish  the  guilty.  We  are 
asked  to  protect  the  defendant,  not  because  he  is  innocent,  but  because 
a  zealous  public  officer  exceeded  his  powers  and  held  out  a  bait.  The 
courts  do  not  look  to  see  who  held  out  the  bait,  but  to  see  who  took  it. 
When  it  was  found  that  the  defendant  took  into  his  possession  the  • 
propert}'  of  the  state  witli  intent  to  steal  it,  an  offence  against  public 
justice  was  established  and  he  could  not  insist  as  a  defence  that  he 
would  not  have  committed  the  crime  if  he  had  not  been  tempted  by  a 
public  officer  whom  he  thought  he  had  corrupted.  He  supposed  he  had 
bought  the  assistant  district  attorney  when  he  handed  over  the  money, 
but  he  knew  he  had  not  bought  the  state  of  New  York  and,  hence,  that 
the  assistant  had  no  right  to  give  him  its  property  for  the  purpose  of 
enabling  him  to  steal  it.  The  judgment  of  conviction  should  be  affirmed.^ 
1  O'Brien  and  Bartlett,  JJ.,  delivered  dis.senting  opinions. —  Ed. 


236  mcdaniel's  case.  [chap.  iv. 


SECTION  II. 

Acquiescence  of  the  Injured  Party. 

I  i^  ' 

McDANIEL'S   CASE. 

Crown  Case  Reserved.     1755. 

[Reported  Foster  C.  L.  121.] 

At  the  Old  Baile}-  session  in  December,  1755,  Justice  Foster  pro- 
nounced the  judgment  of  the  court  in  the  case  between  the  King  and 
Macdaniel  and  others,  to  the  effect  following  :  — 

The  indictment  chargeth,  that  at  the  general  gaol-deliveiy  holden  at 
Maidstone  in  the  count}-  of  Kent,  on  the  13th  of  August  in  the  twenty- 
eighth  year  of  the  King,  Peter  Kelly  and  John  I^llis  were  b}-  due  course 
of  law  convicted  of  a  felon}-  and  robbery  committed  b}-  them  in  the 
King's  highway  in  the  parish  of  Saint  Paul  Deptford  in  the  county  of 
Kent,  upon  the  person  of  James  Salmon  one  of  the  prisoners  at  the  bar, 
and  that  the  prisoners  Stephen  Macdaniel,  John  Berry,  James  Eagen, 
and  James  Salmon,  before  the  said  robbery,  did  in  the  parish  of  Saint 
Andrew  Holbourn  in  this  city,  feloniously  and  maliciously  comfort,  aid, 
assist,  abet,  counsel,  hire,  and  command  the  said  Peter  Kelh"  and  John 
Ellis  to  commit  the  said  felony  and  robber}-. 

On  this  indictment  the  prisoners  have  been  tried,  and  the  jury  have 
found  a  special  verdict  to  this  effect. 

That  Kelly  and  Ellis  were  by  due  course  of  law  convicted  of  the  said 
felony  and  robber}-. 

That  before  the  robbery  all  the  prisoners  and  one  Thomas  Blee,  in 
order  to  procure  to  themselves  the  rewards  given  by  act  of  Parliament 
for  apprehending  robbers  on  the  highway,  did  maliciously  and  feloni- 
ously meet  at  the  Bell  Inn  in  Holbourn  in  this  city  ;  and  did  then  and 
there  agree  that  the  said  Thomas  Blee  should  procure  two  persons  to 
commit  a  robbery  on  the  highway  in  the  parish  of  Saint  Paul  Deptford, 
upon  the  person  of  the  prisoner  Salmon. 

That  for  that  purpose  they  did  all  maliciously  and  feloniously  con- 
trive and  agree  that  the  said  Blee  should  inform  the  persons  so  to  be 
procured  that  he  would  assist  them  in  stealing  linen  in  the  parish  of 
Saint  Paul  Deptford. 

That  in  pursuance  of  this  agreement,  and  with  the  privity  of  all  the 
prisoners,  the  said  Blee  did  engage  and  procure  the  said  Ellis  and  Kelly 
to  go  with  him  to  Deptford  in  order  to  steal  linen  ;  but  did  not  at  any 
time  before  the  robbery  inform  them  or  either  of  them  of  the  intended 
robbery. 

That  in  consequence  of  the  said  agreement  at  the  Bell,  and  with  the 
privity  of  all  the  prisoners,  the  said  Ellis  and  Kelly  went  with  the  said 
Blee  to  Deptford. 


SECT.  II.]  McDaNIEL'S    CASE.  237 

That  the  said  Blee,  Ellis,  and  Kelly  being  there,  and  the  prisoner 
Salmon  being  likewise  there  waiting  in  the  higliway  in  pursuance  of  the 
said  agreement,  the  said  Blee,  Ellis,  and  Kelly  feloniousl}'  assaulted 
him,  and  took  from  his  person  the  mone}'  and  goods  mentioned  in  the 
indictment. 

They  farther  find  that  none  of  the  prisoners  had  an}-  conversation 
with  the  said  Ellis  and  Kell}-  or  either  of  them  previous  to  the  robbery- ; 
hut  the}-  find,  that  before  the  robbery  the  prisoners  Macdaniel,  Eagen, 
and  Berry  saw  the  said  Ellis  and  Kelly,  and  approved  of  them  as  per- 
sons proper  for  tlie  purpose  of  robbing  the  said  Salmon. 

But  Avhcther  the  piisoners  are  guilty  in  manner  as  charged  in  the 
indictment,  they  pray  the  advice  of  the  court. 

This  special  verdict  hath  been  argued  before  all  the  judges  of 
England.  1 

It  is  expressly  found  that  Salmon  was  party  to  the  oiiginal  agree- 
ment at  the  Bell ;  that  he  consented  to  part  with  his  money  and  goods 
under  color  and  pretence  of  a  robbery ;  and  that  for  that  purpose,  and 
in  pursuance  of  this  consent  and  agreement,  he  went  to  Deptford,  and 
waited  there  till  this  colorable  robbery  was  eflJ'ected. 

Tliis  being  the  state  of  the  case  with  regard  to  Salmon,  the  judges 
are  of  opinion  that  in  consideration  of  law  no  robbery  was  committed 
on  him.     His  property  was  not  taken  from  him  against  his  will. 

I  come  now  to  the  case  which  I  promised  at  the  beginning  to  consider 
and  to  distinguish  from  the  present  case.  One  Norden,  having  been 
informed  that  one  of  the  early  stage-coaches  had  been  frequently  robbed 
near  the  town  by  a  single  highwayman,  resolved  to  use  his  endeavors  to 
apprehend  the  robber.  For  this  purpose  he  put  a  little  money  and  a 
pistol  into  his  pocket,  and  attended  the  coach  in  a  post-chaise,  till  the 
highwayman  came  up  to  the  company  in  the  coach  and  to  him,  and  pre- 
senting a  weapon  demanded  their  money.  Norden  gave  him  the  little 
money  he  had  about  him,  and  then  jumped  out  of  the  chaise  with  his 
pistol  in  his  hand ;  and  with  the  assistance  of  some  others  took  the 
highwayman. 

The  robber  was  indicted  about  a  year  ago  in  this  court  for  a  robbery 
on  Norden,  and  convicted.  And  very  properly,  in  my  opinion,  was  he 
convicted. 

But  that  case  differeth  widely  from  the  present.  In  that  case  Norden 
set  out  with  a  laudable  intention  to  use  his  endeavors  for  apprehending 
the  highwayman,  in  case  he  should  that  morning  come  to  rob  the  coach, 
which  at  that  time  was  totally  uncertain  ;  and  it  was  equally  uncertain 
whether  he  would  come  alone  or  not.  In  the  case  now  under  considera- 
tion there  was  a  most  detestable  conspiracy  between  Salmon  and  the 
rest  of  the  prisoners,  that  his  property  should  be  taken  from  him  under 
the  pretence  and  show  of  a  robbery ;  and  time,  place,  and  every  other 
circumstance  were  known  to  Salmon  beforehand,  and  agreed  to  by  him. 

1  Part  of  the  case  is  omitted. 


238  eggington's  case.  [chap.  iv. 

In  Norden's  case  there  was  no  concert,  no  sort  of  connection  between 
him  and  the  highwayman  ;  nothing  to  remove  or  lessen  the  difficulty  or 
dan^J-er  Norden  might  be  exposed  to  in  the  adventure.  In  the  present 
case  there  was  a  combination  between  Salmon  and  one  at  least  of  tne 
supposed  robbers.  I  mean  Blee.  And  though  Salmon  might  not  know 
the  persons  of  Ellis  and  Kelly  ;  yet  he  well  knew  that  they  were  brought 
to  the  place  by  his  friend  Blee,  and  were  wholly  under  his  direction. 

So  widely  do  these  cases  differ  ! 

To  conclude,  all  the  prisoners  have  been  guilty  of  a  most  wicked  and 
detestable  conspiracy  to  render  a  very  salutary  law  subservient  to  their 
vile,  corrupt  views.  But  great  as  their  offence  is,  it  doth  not  amount  to 
felony.  And  therefore  the  judgment  of  the  court  is  that  they  be  all 
discharged  of  this  indictment.^ 


EGGINGTON'S   CASE. 
Crown  Case  Reserved.     1801. 

[Reported  2  East,  Pleas  of  the  Crown,  666.] 

It  appeared  that  the  prisoners,  intending  to  rob  Mr.  Boulton's  manu- 
factory at  Soho,  had  applied  to  one  Phillips  his  servant,  who  was  em- 
ployed there  as  a  watchman,  to  assist  them  in  the  robbery.  Phillips 
assented  to  the  proposal  of  the  prisoners  in  the  first  instance ;  but 
immediately  afterwards  gave  information  to  Mr.  Boulton,  the  principal 
proprietor,  and  in  whom  the  property  of  the  goods  taken  (together 
with  other  persons  his  partners)  was  laid  ;  telling  him  what  was  in- 
tended, and  the  manner  and  time  the  prisoners  were  to  come  ;  that 
they  were  to  go  into  the  counting-house,  and  that  he  was  to  oi)en  the 
door  into  the  front  yard  for  them.  In  return,  Mr.  Boulton  told  him  to 
carry  on  the  business ;  that  he  (Boulton)  would  bear  him  harmless ; 
and  Mr.  Boulton  also  consented  to  his  opening  the  door  leading  to  the 
front  yard,  and  to  his  being  with  the  prisoners  the  whole  time.  In  con- 
sequence of  this  information,  Mr.  Boulton  removed  from  the  counting- 
house  everything  but  150  guineas  and  some  silver  ingots,  which  he 
marked  to  furnish  evidence  against  the  prisoners ;  and  lay  in  wait  to 
take  them,  when  they  should  have  accomplished  their  purpose.  On  the 
23d  of  December,  about  one  o'clock  in  the  morning,  the  prisoners  came, 
and  Phillips  opened  the  door  into  the  front  yard,  through  which  they 
went  along  the  front  of  the  building,  and  round  into  another  yard 
behind  it,  called  the  middle  yard,  and  from  thence  they  and  Phillips 
went  through  a  door  which  was  left  open,  up  a  staircase  in  the  centre 
building  leading  to  the  counting-house  and  rooms  where  the  plated  busi- 
ness was  carried  on  ;  this  door  the  prisoners  bolted,  and  then  broke  open 

1  See  State  v.  Anone,  2  N.  &  McC  27;  Alexander  v.  State,- 12  Tex.  541.  —Ed. 


SECT.  II.]  EGGINGTON'S   CASE.  239 

the  counting-house  which  was  locked,  and  the  desks,  which  were  also 
locked  ;  and  took  from  thence  the  ingots  of  silver  and  guineas.  They 
then  went  to  the  story  above  into  a  room,  where  the  plated  business 
was  carried  on,  and  broke  the  door  open  and  took  from  thence  a  quan- 
tity of  silver,  and  returned  downstairs ;  when  one  of  them  unbolted 
the  door  at  the  bottom  of  the  stairs  wliich  had  been  bolted  on  their 
going  in,  and  went  into  the  middle  yard;  where  all  (except  one  who 
escaped)  were  taken  by  the  persons  placed  to  watch  them.  On  this 
case  two  points  were  made  for  the  prisoners :  First,  that  no  felony  was 
proved,  as  the  whole  was  done  with  the  knowledge  and  assent  of  Mr. 
Boulton,  and  that  the  acts  of  Phillips  were  his  acts.  Secondly,  that  if 
the  facts  proved  amounted  to  a  felony,  it  was  but  a  simple  larceny,  as 
the  building  broke  into  was  not  the  dwelling-house  of  any  of  the  per- 
sons whose  house  it  was  charged  to  be  ;  and  that  there  was  no  break- 
ing, the  door  being  left  open.  After  conviction,  the  case  was  argued 
before  all  the  judges  in  the  Exchequer  Chamber ;  and,  for  the  reasons 
before  stated,  all  the  judges  agreed  that  the  prisoners  were  not  guilty 
of  the  burglar}-.^ 

But  with  respect  to  the  larceny  the  majority'  thought  there  was  no 
assent  in  Boulton ;  that  his  object  being  to  detect  the  prisoners,  he 
only  gave  them  a  greater  facility  to  commit  the  larceny  than  they  other- 
wise might  have  had ;  and  tliat  this  could  no  more  be  considered  as  an 
assent,  than  if  a  man,  knowing  of  the  intent  of  thieves  to  break  into 
his  house,  were  not  to  secure  it  with  the  usual  number  of  bolts.  That 
there  was  no  distinguishing  between  the  degrees  of  facility  a  thief  miglit 
have  given  to  him.  That  it  could  only  be  considered  as  an  apparent 
assent.  That  Boulton  never  meant  that  the  prisoners  should  take  away 
his  property.  And  the  circumstance  of  the  design  originating  with  the 
prisoners,  and  Boulton's  taking  no  step  to  facilitate  or  induce  the  offence 
until  after  it  had  been  thought  of  and  resolved  on  by  them,  formed  with 
some  of  the  judges  a  ver}'  considerable  ingredient  in  the  case  ;  and  dif- 
fered it  much  from  what  it  might  have  been  if  Boulton  had  employed 
his  servant  to  suggest  it  originally  to  the  prisoners.  Lawrenxe,  J., 
doubted  whether  it  could  be  said  to  be  done  invito  domino,  where  the 
owner  had  directed  his  servant  to  carry  on  the  business,  to  open 
the  door,  and  meant  that  the  prisoners  should  be  encouraged  by  the 
presence  of  that  servant ;  and  that  by  his  assistance  they  should  take 
the  goods,  so  as  to  make  a  complete  felony ;  though  he  did  not  mean 
that  they  should  carry  them  away.  Finally,  the  prisoners  were  recom- 
mended to  mercy  on  condition  of  being  transported  for  seven  years, 
the  punishment  they  would  have  been  liable  to  for  the  larceny.  The 
decision  in  the  above  case  is  consonant  to  the  rule  laid  down  in  the 
civil  law  under  similar  circumstances.* 

1  See  State  v.  Hayes,  105  Mo.  76, 16  S.  W.  514;  State  v.  Douglass,  44  Kan.  618.  —  Ed. 

2  Vide  Just.  Inst.  lib.  4.  tit.  1,  s.  8. 


240  TOPOLEWSKI   V.    STATE.  [CHAP.  IV. 


TOPOLEWSKI  V.  STATE. 

Supreme  Court  of  Wisconsin.     1906. 

[Reported  109  N.   W.  1037.] 

The  accused  was  charged  with  having  stolen  three  barrels  of  meat, 
the  property  of  the  Plankinton  Packing  Company,  of  the  value  of 
$55.20,  and  was  found  guilty. 

The  evidence  was  to  this  effect :  The  Plankinton  Packing  Company 
suspected  the  accused  of  having  by  criminal  means  possessed  himself 
of  some  of  its  propert\',  and  of  having  a  purpose  to  make  further  efforts 
to  that  end.  A  sliort  time  before  the  14th  day  of  October,  1905,  one 
Mat  Dolan,  who  was  indebted  to  the  accused  in  the  sum  of  upwards  of 
$100,  was  discharged  from  the  company's  employ.  Shortly  theretofore 
the  accused  pressed  Dolan  for  payment  of  the  aforesaid  indebtedness, 
and  the  latter  being  unable  to  respond,  the  former  conceived  the  idea 
of  solving  the  difficulty  by  obtaining  some  of  the  company's  meat  pro- 
ducts through  Dolan's  aid  and  by  criminal  means,  Dolan  to  participate 
in  the  benefits  of  the  transaction  by  having  the  value  of  the  property 
credited  upon  his  indebtedness.  A  plan  was  accordingly  laid  by  the 
two  to  that  end,  which  Dolan  disclosed  to  the  company.  Such  plan 
was  abandoned.  Thereafter  various  methods  were  discussed  of  carry- 
ing out  the  idea  of  the  accused,  Dolan  participating  with  the  knowledge 
and  sanction  of  the  company.  Finally  a  meeting  was  arranged  between 
Dolan  and  the  accused  to  consider  the  subject,  the  packing  company 
requesting  the  former  to  bring  it  about,  and  with  knowledge  of  Dolan 
causing  one  of  its  employes  to  be  in  hiding  where  he  could  overhear 
whatever  might  be  said,  the  arrangement  being  made  on  the  part  of  the 
company  by  Mr.  Layer,  the  person  in  charge  of  its  wholesale  depart- 
ment. At  such  interview  the  accused  proposed  that  Dolan  should  pro- 
cure some  packages  of  the  company's  meat  to  be  placed  on  their  loading 
platform,  as  was  customary  in  delivering  meat  to  customers,  and  that 
he  should  drive  to  such  platform,  ostensibly  as  a  customer,  and  remove 
such  packages.  Dolan  agreed  to  the  proposition,  and  it  was  decided 
that  the  same  should  be  consummated  earl}-  the  next  morning,  all  of 
which  was  reported  to  Mr.  La3'er.  He  thereupon  caused  four  barrels 
of  meat  to  be  packed  and  put  in  the  accustomed  condition  for  delivery 
to  customers,  and  placed  on  the  platform  in  readiness  for  the  accused 
to  take  them.  He  set  a  watch  over  the  property,  and  notified  the  per- 
son in  charge  of  the  platform,  who  was  ignorant  of  the  reason  for  so 
placing  the  barrels,  upon  his  inquiring  what  they  were  placed  there  for, 
to  let  them  go;  that  they  were  for  a  man  who  would  call  for  them. 
About  the  time  appointed  for  the  accused  to  appear,  he  drove  to  the 
platform  and  commenced  putting  the  barrels  in  his  wagon.  The  plat- 
form boss  supposing,  as  the  fact  was,  that  the  accused  was  the  man 


SECT.  II.]  TOPOLEWSKI   V.    STATE.  241 

Mr.  Layer  said  was  to  come  for  the  property-,  assumed  the  attitude  of 
consenting  to  the  taking.  He  did  not  actually  help  load  the  barrels  on 
to  the  wagon,  but  he  was  by,  consented  by  his  manner,  and  when  the 
accused  was  ready  to  go,  helped  hira  arrange  his  wagon,  and  inquired 
what  was  to  be  done  with  the  fourth  barrel.  The  accused  replied  that 
he  wanted  it  marked  and  sent  up  to  him  with  a  bill.  He  told  the  plat- 
form boss  that  he  ordered  the  stuff  the  night  before  through  Dolan. 
He  took  full  possession  of  the  three  barrels  of  meat  with  intent  to 
deprive  the  owner  permanently  thereof,  and  without  compensating  it 
therefor,  wholly  in  ignorance,  however,  of  the  fact  that  Dolan  had 
acted  in  the  matter  on  behalf  of  such  owner,  and  that  it  had  knowinglv 
aided  in  carrying  out  the  plan  for  obtaining  the  meat. 

Marshall,  J.^  .  .  .  It  was  frankly  conceded  on  the  oral  argument  bv 
the  learned  attorney  general  that  if  the  plaintiff  in  error  committed  the 
crime  of  larceny,  Dolan,  the  decoy  of  the  packing  company,  was  a 
guilty  participant  in  the  matter,  unless  the  element  of  guilt  on  his  part 
was  absent,  because,  while  in  the  transaction  he  acted  ostensibly  as  an 
accomplice  of  the  accused,  his  acts  were  in  fact  those  of  the  packing 
company.  So  in  the  circumstances  characterizing  the  taking  of  the 
barrels  of  meat  from  the  loading  platform  the  case  comes  down  to  this: 
If  a  person  procures  another  to  arrange  with  a  third  person  for  the  lat- 
ter to  consummate,  as  he  supposes,  larceny  of  the  goods  of  such  person 
and  such  third  person  in  the  course  of  negotiations  so  sanctioned  by 
such  person  suggests  the  plan  to  be  followed,  which  is  agreed  upon 
between  the  two,  each  to  be  an  actor  in  the  matter,  and  subsequently 
that  is  sanctioned  secretly  by  such  person,  the  purpose  on  the  part  of 
the  latter  being  to  entrap  and  bring  to  justice  one  thought  to  be  dis- 
posed to  commit  the  offence  of  larceny,  and  sucli  person  carries  out  a 
part  of  such  plan  necessary  to  its  consummation  assigned  to  such  other 
in  the  agreement  aforesaid,  such  third  person  not  knowing  that  such 
person  is  advised  of  the  impending  offence,  and  at  the  finality  causes 
one  of  its  employes  to,  tacitly  at  least,  consent  to  the  taking  of  the 
goods,  not  knowing  of  the  real  nature  of  the  transaction,  is  such  third 
person  guilty  of  the  crime  of  larceny,  or  does  the  conduct  of  such  per- 
son take  from  the  transaction  the  element  of  trespass  or  nonconsent 
essential  to  such  crime? 

It  will  be  noted  that  the  plan  for  depriving  the  packing  compan}-  of 
its  property  originated  with  the  accused,  but  that  it  was  wholly  im- 
practicable of  accomplishment  without  the  property  being  placed  on  the 
loading  platform,  and  the  accused  not  being  interfered  with  when  he 
attempted  to  take  it.  When  Dolan  agreed  to  procure  such  placing  the 
packing  company  in  legal  effect  agreed  thereto.  Dolan  did  not  ex- 
pressly consent,  nor  did  the  agreement  he  had  with  the  packing  com- 
pany authorize  him  to  do  so,  to  the  misappropriation  of  the  property. 
Did  the  agreement  in  legal  effect,  with  the  accused  to  place  the  prop- 

^  Fart  of  the  opinion  is  omitted.  —  Ed. 
16 


242  TOPOLEWSKI   V.    STATE.  [CHAr.  IV. 

eity  of  the  packing  company  on  the  loading  platform,  where  it  could  be 
appropriated  by  the  accused,  if  he  was  so  disposed  and  was  not  inter- 
fered with  in  so  doing,  though  his  movements  in  that  regard  were 
known  to  the  packing  company,  and  his  taking  of  the  property,  his 
efforts  to  that  end  being  facilitated  as  suggested,  constitute  consent  to 
such  appropriation?  . 

The  case  is  verv  near  the  border  line,  if  not  across  it,  between  con- 
sent and  noncousent  to  tne  taking  of  the  property.  Reg.  v.  Lawrence, 
4  Cox  C.  C.  438,  it  was  held  that  if  the  property  was  delivered  by  a 
servant  to  the  defendant  by  the  master's  direction  the  offence  cannot 
be  larceny,  regardless  of  the  purpose  of  the  defendant.  In  this  case 
the  property  was  not  only  placed  on  the  loading  platform,  as  was  usual 
in  delivering  such  goods  to  customers,  with  knowledge  that  the  accused 
would  soon°arrive,  having  a  formed  design  to  take  it,  but  the  packing 
company's  employe  in  charge  of  the  platform,  Ernst  Klotz,  was  in- 
structed that  the  property  was  placed  there  for  a  man  wiio  would  call 
for  it.  Klotz,  from  such  statement,  had  every  reason  to  infer,  when  the 
accused  arrived  and  claimed  the  right  to  take  the  property,  that  he  was 
the  one  referred  to,  and  that  it  was  proper  to  make  delivery  to  him, 
and  he  acted  accordingly.  While  he  did  not  physically  place  the  prop- 
erty, or  assist  in  doing  so,  in  the  wagon,  his  standing  by,  witnessing 
such  placing  by  the  accused,  and  then  assisting  him  in  arranging  the 
wagon,  as  the  evidence  shows  he  did,  and  taking  the  order,  in  the  usual 
way,  from  the  accused  as  to  the  disposition  of  the  fourth  barrel,  and 
his  conduct  in  respect  thereto,  amounted  practically  to  a  delivery  of  the 
three  barrels  to  the  accused. 

In  Rex  V.  Egginton,  2  P.  &  P.  508,  we  have  a  very  instructive  case 
on  the  subject  under  discussion  here.  A  servant  informed  his  master 
that  he  had  been  solicited  to  aid  in  robbing  the  latter's  house.  By  the 
master's  direction  the  servant  opened  the  house,  gave  the  would-be 
thieves  access  thereto,  and  took  them  to  the  place  where  the  intended 
subject  of  the  larceny  had  been  laid  in  order  that  they  might  take  it. 
All  this  was  done  with  a  view  to  the  apprehension  of  the  guilty  parties 
after  tlie  accomplishment  of  their  purpose.  Tlie  servant,  by  direction 
of  the  master,  not  only  gave  access  to  the  house,  but  afforded  the 
would-be  thieves  every  facility  for  taking  the  property,  and  yet  the 
court  held  that  the  crime  of  larceny  was  complete,  because  there  was 
no  direction  to  the  servant  to  deliver  the  property  to  the  intruders  or 
consent  to  their  taking  it.  They  were  left  free  to  commit  the  larceny, 
as  they  had  purposed  doing,  and  the  way  was  made  easy  for  them  to 
do  so,  but  they  were  neither  induced  to  commit  the  crime,  nor  was  any 
act  essential  to  the  offence  done  by  any  one  but  themselves. 

In  harmony  with  the  case  last  discussed  in  Williams  v.  State  of 
Georgia,  55  Ga.  391,  cited  by  counsel  for  the  plaintiff  in  error,  it  was 
held  that  the  owner  of  property  may  make  everything  ready  and  easy 
for  a  larceny  thereof  by  one  purposing  to  steal  the  same,  and  then 


SECT.  II.]  .    TOPOLEWSKI   V.    STATE.  243 

remain  passive,  allowing  the  would-be  criminal  to  perpetrate  the  offence 
of  larcen}-  as  to  every  essential  part  of  such  offence,  without  sacrificing 
the  element  of  trespass  or  nonconsent ;  but  if  one  ostensibl}'  acting  as 
an  accomplice,  but  reall}-  for  the  owner  of  the  property,  for  the  pur- 
pose of  entrapping  the  would-be  criminal,  does  acts  amounting  to  the 
constituents  of  the  crime  of  larceny,  although  the  accused  concurred  in 
and  supposed  he  prompted  the  act,  he  is  not  guilty  of  larceny.  The 
circumstances  of  that  case  were  these :  The  would-be  criminal  when  he 
took  the  property  supposed  he  was  committing  the  offence  of  larceny, 
and  that  his  associate  was  criminally  participating  therein  ;  but  because, 
as  a  fact,  such  person  was  acting  by  direction  of  the  owner,  and  actually 
placed  the  property  in  the  hands  of  the  taker,  the  element  of  nonconsent 
essential  to  larceny  did  not  characterize  the  transaction.  A  distinction 
was  drawn  between  one  person  inducing  another  to  commit  the  crime 
of  larceny  of  the  former's  goods,  or  such  person  aiding  in  the  commis- 
sion of  the  offence,  so  far  as  the  mental  attitude  of  such  other  is  con- 
cerned, by  doing  some  act  essential  to  such  an  offence,  and  merely 
setting  a  trap  to  catch  a  would-be  criminal  by  affording  him  the  freest 
opportunity  to  commit  the  offence.  The  latter  does  not  sacrifice  the 
element  of  nonconsent.  State  o.  Jansen,  22  Kan.  498  ;  Varner  v.  State 
of  Georgia,  72  Ga.  745  ;  State  y.  Duncan,  8  Rob.  (La.)  562  ;  Reg.  v. 
Williams,  1  Car.  &  K.  195;  Rex  u.  p:gginton,  2  B.  &  P.  508. 

In  the  case  before  us,  the  owner  of  the  property,  through  its  agent, 
Dolan,  did  not  suggest  the  plan  for  committing  the  offence  of  larceny, 
which  was  finally  adopted,  but  the  evidence  shows  conclusively  that, 
by  the  consent  or  direction  of  the  packing  company,  through  words  or 
otherwise,  he  suggested  the  commission  of  such  an  offence,  and  invited 
from  the  accused  plans  to  that  end.  The  fair  construction  of  the  evi- 
dence is  that  in  the  finality  the  plan  was  a  joint  creation  of  the  two, 
and  that  it  required  each  to  be  an  active  participant  in  its  consumma- 
tion. It  seems  that  there  is  good  reason  for  holding  that  the  situation 
in  that  respect  falls  within  the  condemnatory  language  in  the  opinion  of 
the  court  in  Love  v.  People,  160  111.  501,  43  N.  E.  710,  32  L.  R.  A. 
139,  cited  to  our  attention  by  counsel  for  the  plaintiff  in  error.  Tliat 
will  be  apparent  from  the  closing  words  of  the  opinion,  which  are  as 
follows  : 

"  A  contemplated  crime  may  never  be  developed  into  a  consummated 
act.  To  stimulate  unlawful  intentions  for  the  purpose  and  with  the 
motive  of  bringing  them  to  mjvturity,  so  the  consequent  crime  may  be 
punished,  is  a  dangerous  practice.  It  is  safer  law  and  sounder  morals 
to  hold,  where  one  arranges  to  have  a  crime  committed  against  his 
property  or  himself,  and  knows  that  an  attempt  is  to  be  made  to  en- 
courage others  to  commit  the  act  by  one  acting  in  concert  with  such 
owner,  that  no  crime  is  thus  committed.  The  owner  and  his  agent  may 
wait  passively  for  the  would-be  criminal  to  perpetrate  the  offence,  and 
each  and  every  part  of  it,  for  himself,  but  they  must  not  aid,  encourage, 
or  solicit  him  that  they  may  seek  to  punish." 


244 


TOPOLEWSKI   V.    STATE.  [CHAP.  IV. 


We  cannot  well  escape  the  conclusion  that  this  case  falls  under  the 
condemnation  of  the  rule  that  where  the  owner  of  property  by  himself 
or  his  agent,  actually  or  constructively,  aids  in  the  commission  of  the 
Offence, °as  intended  by  the  wrongdoer,  by  performing  or  rendering 
unnecessary  some  act  in  the  transaction  essential  to  the  ofifence,  the 
would-be  criminal  is  not  guilty  of  all  the  elements  of  the  offence.  Here 
Mr.  Layer,  acting  for  the  owner  of  the  property,  packed  or  superin- 
tended the  packing  of  the  four  barrels  of  meat,  as  suggested  by  the 
owner's  agent  in  the  matter,  Dolan,  and  caused  the  same  to  be  placed 
on  the  platform,  knowing  that  the  accused  would  soon  arrive  to  take 
them,  under  an  arrangement  between  him  and  its  agent,  and  directed 
its  platform  boss,  when  he  inquired  as  to  the  purpose  of  so  placing  the 
barrels  "Let  them  go;  they  are  for  some  man,  and  he  will  call  for 
them."  He,  from  the  standpoint  of  such  employe,  directed  the  latter 
to  deliver  the  barrels  to  the  man  when  he  called,  the  same  in  all  re- 
spects as  was  done  in  "Williams  v.  State,  supra.  He  substantially  made 
such  delivery,  by  treating  the  accused  when  he  arrived  upon  the  scene 
as  having  a  right  to  take  the  property.  In  that  the  design  to  trap  a 
criminal  went  a  little  too  far,  at  least,  in  that  it  included  the  doing  of 
an  act,  in  effect  preventing  the  taking  of  the  property  from  being  char- 
acterized by  any  element  of  trespass. 

The  logical  basis  for  the  doctrine  above  discussed  is  that  there  can 
be  no  larceny  without  a  trespass.  So  if  one  procures  his  property  to 
be  taken  by  another  intending  to  commit  larceny,  or  delivers  his  prop- 
erty to  such  other,  the  latter  purposing  to  commit  such  crime,  the 
element  of  trespass  is  wanting,  and  the  crime  not  fully  consummated, 
however  plain  may  be  the  guilty  purpose  of  the  one  possessing  himself 
of  such  property.  That  does  not  militate  against  a  person's  being  free 
to  set  a  trap  to  catch  one  whom  he  suspects  of  an  intention  to  commit 
the  crime  of  larceny,  but  the  setting  of  such  trap  must  not  go  further 
than  to  afford  the  would-be  thief  the  amplest  opportunity  to  carry  out 
his  purpose,  formed  without  such  inducement  on  the  part  of  the  owner 
of  the  property,  as  to  put  him  in  the  position  of  having  consented  to 
the  taking.  If  I  induce  one  to  come  and  take  my  property,  and  then 
place  it  before  him  to  be  taken,  and  he  takes  it  with  criminal  intent,  or 
if  knowing  that  one  intends  to  take  rny  property,  I  deliver  it  to  him, 
and  he  takes  it  with  such  intent,  the  essential  element  of  trespass  in- 
volving nonconsent  requisite  to  a  completed  offence  of  larceny  does  not 
characterize  tht  transaction,  regardless  of  the  fact  that  the  moral  turpi- 
tude involved  is  no  less  than  it  would  be  if  such  essential  were  present. 
Some  writers  in  treating  this  subject  give  so  much  attention  to  con- 
demning the  deception  practiced  to  facilitate  and  encourage  the  com- 
mission of  a  crime  by  one  supposed  to. have  such  a  purpose  in  view, 
that  the  condemnation  is  liable  to  be  viewed  as  if  the  deception  were 
sufficient  to  excuse  the  would-be  criminal,  or  to  preclude  his  being 
prosecuted  ;  that  there  is  a  question  of  good  morals  involved  as  to  both 


SECT.  II.]  "     TOPOLEWSKI   V.    STATE.  245 

parties  to  the  transaction,  and  that  the  wrongful  participation  of  the 
owner  of  the  property  renders  him  and  the  public  incapable  of  being 
heard  to  charge  the  person  he  has  entrapped  with  the  offence  of  larcenv. 
That  is  wrong.  It  is  the  removal  from  the  completed  transaction,  which 
from  the  mental  attitude  of  the  would-be  criminal  may  have  all  the  in- 
gredients of  larceny,  from  the  standpoint  of  the  owner  of  the  property 
of  the  element  of  trespass  or  nonconsent.  When  such  element  does 
not  characterize  a  transaction  involving  the  full  offence  of  larceny,  so 
far  as  concerns  the  mental  purpose  of  such  would-be  criminal  is  con- 
cerned, is  often  not  free  from  difficulty,  and  courts  of  review  should 
incline  quite  stronglj-  to  support  the  decision  of  the  trial  judge  in  re- 
spect to  the  matter,  and  not  disturb  it  except  in  a  clear  case.  It  seems 
that  there  is  such  a  case  before  us. 

If  the  accused  had  merely  disclosed  to  Dolan,  his  ostensible  accom- 
plice, a  purpose  to  improve  the  opportunity  when  one  should  present 
itself  to  steal  barrels  of  meat  from  the  packing  company's  loading  plat- 
form, and  that  had  been  communicated  by  Dolan  to  the  compan}-,  and 
it  had  then  merely  furnished  the  accused  the  opportunity  he  was  look- 
ing for  to  carry  out  such  purpose,  and  he  had  improved  it,  the  situation 
would  be  quite  different.  The  mere  fact  that  the  plan  for  obtaining 
the  propert}^  was  that  of  the  accused,  under  the  circumstances  of  this 
case,  is  not  controlling.  Dolan,  as  an  emissary  of  the  packing  company, 
as  we  have  seen,  was  sent  to  the  accused  to  arrange,  if  the  latter  were 
so  disposed,  some  sort  of  a  plan  for  taking  some  of  the  company's  prop- 
erty with  the  intention  of  stealing  it.  Though  the  accused  proposed  the 
plan,  Dolan  agreed  to  it,  which  involved  a  promise  to  assist  in  carrying 
it  out,  ostensibly  as  an  accomplice,  but  actually  as  an  instrument  of  the 
packing  company.  That  came  very  near,  if  it  did  not  involve,  solicita- 
tion by  the  company,  in  a  secret  way,  for  the  accused  to  take  its  prop- 
erty as  proposed.  With  the  other  element  added  of  placing  such 
property  on  the  loading  platform  for  the  accused  to  take  pursuant  to 
the  agreement,  with  directions,  in  effect,  to  the  person  in  charge  of  the 
platform,  to  let  the  accused  take  it  when  he  came  for  that  purpose,  we 
are  unable  to  see  any  element  of  trespass  in  the  taking  which  followed. 
The  packing  company  went  very  significantly  further  than  the  owner 
of  the  property  did  in  Rex  v.  Egginton,  siq^ra,  which  is  regarded  as 
quite  an  extreme  case.  It  solicited  the  opportunity  to  be  an  ostensible 
accomplice  in  committing  the  offence  of  larceny  instead  of  being  solic- 
ited in  that  regard,  and  the  property  was  in  practical  effect  delivered 
to  the  would-be  thief  instead  of  its  being  merely  placed  where  he  could 
readily  trespass  upon  the  rights  of  the  packing  company  by  taking  it. 
When  one  keeps  in  mind  the  plain  distinction  between  merely  furnish- 
ing opportunity  for  the  execution  of  a  formed  design  to  commit  larceny 
and  negotiations  for  the  purpose  of  develqMng  a  scheme  to  commit  the 
offence,  regardless  of  who  finally  proposes  the  plan  jointly  adopted,  and 
not  facilitating  the  execution  of  the  plan  by  placing  the  property  pur- 


246 


REGINA   V.   CASE.  [CHAP.  IV. 


(v 


suant  to  the  arrangement  where  it  can  readily  be  taken,  but  in  practical 
effect,  at  least,  delivering  the  same  into  the  possession  of  the  would-be 
thief,  one  can  readily  see  that  the  element  of  trespass,  involving  consent, 
is  present  in  the  first  situation  mentioned,  and  not  in  the  last,  and  that 
the  latter  pretty  clearly  fits  the  circumstances  of  this  case. 

The  judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial. 


I  HI      . 

SECTION  III. 

Consent  of  the  Injured  Party. 

REGINA  V.  CASE. 
Crown  Case  Reserved.     1850. 


'^-.  {Reported  4  Cox  C.  C.  220] 

The  following  case  was  reserved  by  the  Recorder  of  Dover: 
William  Case  was  tried  before  me  at  the  last  April  Quarter  Sessions 
for  tlie  borough  of  Dover,  for  an  assault  upon  Mary  Impitt. 

The  defendant  was  a  medical  practitioner.  Mary  Impitt,  who  was 
fourteen  years  old,  was  placed  under  his  professional  care  by  her 
parents,  in  consequence  of  illness,  arising  from  suppressed  menstrua- 
tion ;  and  on  the  occasion  of  her  going  to  his  house,  and  informing  him 
she  was  no  better,  he  observed,  "  Then  I  must  try  further  means  with 
you."  He  then  took  hold  of  her,  and  laid  her  down  in  his  surgery, 
lifted  up  her  clothes,  and  had  carnal  connection  with  her,  she  making 
no  resistance,  believing  (as  she  stated)  that  she  was  submitting  to 
medical  treatment  for  the  ailment  under  which  she  labored.  Tlie  de- 
fendant's counsel,  in  his  address  to  the  jury,  contended  that  the  girl 
was  a  consenting  party  ;  therefore,  that  the  charge  of  assault  could  not 
be  sustained. 

I  told  the  jury  that  the  girl  was  of  an  age  to  consent  to  a  man  having 
carnal  connection  with  her,  and  that  if  they  thought  she  consented  to 
such  connection  with  the  defendant  he  ought  to  be  acquitted  ;  but  that 
if  they  were  satisfied  she  was  ignorant  of  the  nature  of  the  defendant's 
act,  and  made  no  resistance,  solely  from  a  hondjide  belief  that  the 
defendant  was  (as  he  represented)  treating  her  medically,  with  a  view 
to  her  cure,  his  conduct,  in  point  of  law,  amounted  to  an  assault. 

The  jury  found  the  defendant  guilty,  and  he  was  sentenced  to  be 
imprisoned  for  eighteen  calendar  months  in  the  borough  gaol,  where  he 
now  remains.     I  have  to  pray  the  judgment  of  my  lords,  justices,  and 


SECT.  III.]  REGINA   V.   CASE.  247 

others,  sitting  in  a  court  of  appeal,  whether  m}'  direction  to  the  jury 
was  correct  in  point  of  law. 

Horn,  for  the  prisoner.  The  consent  of  the  girl  is  found  ;  for  con- 
senting and  not  resisting  are  synonymous.  [Coleridge,  J.  —  They  are 
clearly  used  in  a  different  sense  here.  Wilde,  C.  J.  —  If  a  medical 
man  uses  an  injurious  ointment  the  patient  does  not  resist  its  applica- 
tion ;  but  it  cannot  be  said  that  he  consents.  Alderson,  B.  —  How 
does  this  ditfer  from  the  case  of  a  man  pretending  to  be  the  husband  of 
the  woman  ?]  Fraud  is  not  expressly  found  in  this  case.  It  ought  to 
have  been  left  to  the  jury  expressly  to  say  whether  the  act  done  was 
necessary  or  proper.  It  is  consistent  with  the  verdict  that  he  may  have 
treated  her  medically.  [Alderson,  B.  —  He  pretended  that  that  was 
medicine  which  was  not;  hereb}'  that  is  fraud.]  In  the  notes  to  R. 
V.  Read  (1  Den.  C.  C.  379),  it  is  said,  "It  seems  from  R.  v.  Martin 
(2  Moo.  C.  C.  123  ;  9  Car.  &  P.  213)  ;  R.  v.  Banks  (8  Car.  &  P.  574)  ; 
R.  V.  Meredith  (8  Car.  &  P.  589),  first,  that  tlie  stat.  9  Geo.  4,  c.  31, 
s.  17,  does  not  deprive  a  girl  under  ten  years  of  age  of  the  power  to 
consent  which  she  had  at  common  law  ;  second!}',  that  consequently  if 
she  consents  to  the  mere  incomplete  attempt,  such  an  attempt  is  not 
punishable  as  an  assault;  thirdly,  that  it  is  punishaljle  as  an  attempt 
to  commit  a  felony,  viz.,  as  a  misdemeanor  ;  "  and  further,  "  an  assault 
seems  to  be  an}-  sort  of  personal  ill-usage,  sliort  of  a  battery  done  to 
another  against  his  consent.  Therefore,  such  act,  done  with  consent, 
is  no  breach  of  the  peace  or  crime."  Children  of  tender  age  are,  there- 
fore, capable  of  consenting;  so  is  an  idiot  (R.  v.  Ryan,  2  Cox  C.  C. 
115).  [Patteson,  .J.  —  What  do  you  say  the  juiy  found?]  It  is  con- 
sistent with  the  verdict  that  he  may  have  treated  her  medically. 
[Coleridge,  J.  —  Suppose  even  that  he  did  the  act  bond  fide  for  the 
purpose  which  he  pretended,  would  that  justify  him?  Had  he  a  right 
to  pollute  the  child's  body?]  Certainly  not,  morally  ;  but  the  question 
is,  was  it  an  assault  in  the  eye  of  the  law,  there  being  consent  in  fact. 
[Platt,  B.  —  The  girl  did  not  consent  to  that  which  was  done.  She 
did  not  know  the  nature  of  the  act.]  In  Read's  case  (1  Den.  C.  C.  377), 
the  jury  found  that,  from  her  tender  years,  the  child  did  not  know 
what  she  was  about.  Yet,  as  they  found  that  she  assented,  the  prison- 
ers were  held  entitled  to  an  acquittal  upon  the  indictment,  which 
charged  them  with  an  assault.  [Alderson,  B.  —  It  must  be  taken  that 
there  was  actual  consent  in  that  case.]  Even  if  fraud  was  established, 
still  there  was  no  assault.  The  doctrine  of  rape  per  fraudem  stands 
upon  the  decision  of  two  judges,  Alderson,  B.  and  Gurney,  B.,  in  R.  v. 
Williams  (8  Car.  &  P.  286),  and  R.  v.  Saunders  {ih.  265).  In  those  cases 
the  defendants  were  indicted  for  rape,  and  it  appearing  that  the  con- 
sent of  the  woman  in  each  case  had  been  obtained  under  the  belief  that 
the  man  was  her  husband,  the  learned  judges  directed  that  the  prison- 
ers should  be  acquitted  of  the  charge  of  rape,  but  convicted  of  an 
assault.  [Alderson,  B.  —  In  the  case  before  me  I  followed  several 
previous  decisions,  although  I  doubted  them.]     If  they  were  guilty  of 


248  KEGINA   V.    CASE.  [CHAP.  IV. 

an  assault,  and  penetration  was  proved,  why  were  they  not  guilty  of 
rape  ?  [Aldersox,  B.  —  Suppose  a  woman  is  ravished  wliilst  under  the 
influence  of  laudanum.  I  recollect  a  case  before  me  on  the  Home  Cir- 
cuit, where,  at  the  time  when  the  offence  was  committed,  the  woman 
was  completely  insensible  from  drunkenness.  I  doubted  whether  the 
prisoner  ought  to  be  convicted  of  rape  ;  but  upon  consultation  with  Lord 
Denman  I  held  that  he  might.]  R.  v.  Camplin  (1  Den.  C.  C.  89  ;  1 
Cox  C.  C.  220),  was  a  somewhat  similar  case,  but  different  in  this, — 
that  the  prisoner  gave  the  woman  the  liquor  which  made  her  drunk. 
He  therefore  contributed  to  the  production  of  the  state  of  insensibility 
during  which  the  offence  was  committed  ;  and  if  the  woman  does  not 
consent  as  long  as  she  has  the  power  of  consenting  or  resisting,  a 
reasonable  inference  that  she  did  not  consent  may  be  drawn  from  her 
previous  conduct ;  the  act  would  be  done  against  "  her  permanent  will," 
as  Lord  Denman  expressed  it  in  R.  v.  Camplin  ;  but  if  fraud  dispenses 
with  the  necessity  of  resistance,  any  deceit  will  have  that  effect ;  and  it 
would  be  an  assault  if  the  woman  consented,  upon  a  false  representa- 
tion that  the  man  would  marry  her,  or  that  medically  it  would  be  bene- 
ficial to  her.  If  a  surgeon  cuts  off  a  leg  or  draws  a  tooth,  and  the 
patient  consents  because  he  beheves  that  he  is  being  medically  treated, 
could  he  afterwards  indict  him  for  an  assault?  Again,  the  charge  of 
rape  includes  an  assault ;  and  is  there  to  be  one  kind  of  consent  for  an 
assault  and  another  kind  of  consent  to  get  rid  of  the  cliarge  of  rape? 
The  cases,  therefore,  it  is  submitted,  deserve  to  be  reconsidered. 
[Wilde,  C.  J.  —  There  are  two  cases  which  clearly  show  that  this  de- 
fendant was  guilty  of  an  assault,  and  you  say  that  the  court  ought  to 
have  held  him  guilty  of  rape  :  but  it  would  not  be  less  an  assault  if  it 
should  be  held  to  be  rape.]  If  upon  an  indictment  for  assault  a  rape  is 
proved,  the  misdemeanor  merges  in  the  felony  ;  but  it  is  held  that  if 
the  connection  takes  place  by  consent  obtained  b}-  fraud  it  is  not  rape. 
If  not,  neither  is  it  an  assault. 

Harrow,  contra,  was  not  called  upon. 

Wilde,  C.  J.  I  have  no  doubt  in  this  case  that  the  direction  of  the 
learned  recorder  was  perfecth'  correct.  The  objection  is  to  the  latter 
part  of  the  charge  ;  for  he  first  of  all  tells  the  jur}-  that  the  girl  was  of  ^ 

an  age  to  consent,  and  that,  if  she  consented,  the  prisoner  must  be  ^ 

acquitted.     Therefore,  he  treats  her  as  competent  to  consent,  and  her  ^ 

consent  as  a  ground  of  acquittal ;  but  then,  that  direction  is  qualified 
by  what  he  adds  afterwards,  —  that  if  they  were  satisfied  that  she  was 
ignorant  of  the  nature  of  the  act,  and  made  no  resistance  solel}'  from  a  y 

bond  fide  belief  that  the  defendant  was,  as  he  represented,  treating  her 
medically  with  a  view  to  her  cure,  his  conduct  amounted  to  an  assault. 
That  is  the  part  which  is  objected  to.  The  jury  found  the  prisoner 
guilt}'.  The  girl  was  of  an  age  at  which  she  might  be  totally  ignorant 
of  the  nature  of  the  act,  morally  or  religioush",  and  of  the  effect  which 
it  might  have  upon  her  character  and  station  in  life ;  and  she  was  sent 
by  her  parents  to  the  defendant  to  be  medicallv  treated  bv  him.     It  is 


SECT.  III.] 


REGINA  V.    CASB. 


249 


( 


said  that  he  may  have  treated  her  medlcalh- ;  if  so.  can  it  be  said  that 
he  did  not  commit  both  a  legal  and  ecclesiastical  offence?  But  the  jury 
must,  I  think,  bg.  taken  to  have  found  that  it  was  not  medical  treatment. 
I  admit  that  the  question  was  not  put  to  them  ;  nor  was  it  necessary, 
because,  whether  the  defendant  thought  it  would  be  beneficial  or  not, 
his  act  was  altogether  improper  and  unjustifiable.  He  was  guilty  of  a 
great  offence.  He  in  truth  disarms  the  girl ;  and  she  submits  under 
a  misrepresentation  that  it  was  some  act  necessary  and  proper  for  her 
cure  ;  she  made  no  resistance  to  an  act  which  she  supposed  to  be  quite 
different  from  what  it  was;  what  she  consented  to  was  something 
wholly  different  from  that  which  was  done,  and,  therefore,  that  which 
was  done,  was  done  without  her  consent.  I  am  not  prepared  to  sav 
that  the  two  cases  referred  to  might  not  be  cases  of  rape ;  for  every 
rape  includes  an  assault ;  but  it  is  not  necessary  to  decide  that  ques- 
tion now. 

Alderson,  B.     This  is  quite  undistinguishable  from  the  two  cases 

decided  by  myself  and  my  brother  Gurney,  which  were  onlv  the  sequel 

^  of  many  others  previously  decided.     When  a  man  obtains  possession  of 

Nj^the  person  of  a  woman  by  fraud,  it  is   against  her  will;  and  if  the 

^  question  were  res  nova,  I  should  be  disposed  to  say  that  this  was  a 

|>-j  rape,  but  that  is  not  necessary  in  this  case.     This  is  an  indictment  for 

^  an   assault,   and   the   prisoner   obtains    the   consent   of  the   child  by 

representing  the  act  as  something  different  from  what  it  was. 
^      Pattesox,  J.     Mr.  Horn  confounds  active  consent  and   passive  non- 
-resistance,  which,  I  think,  the  learned  recorder  has  very  accurately 
distinguished.  II  Jjere  the  girl  did  not  resist :   but  still  there  was  no 
consent.  U '"'&-''-'>-tt^>i-^CPCC^3S  ^ 

Coleridge,  J.  The  girl  was  under  medical  treatment,  and  she 
makes  no  resistance  only  in  consequence  of  the  confidence  which  she 
reposed  in  the  defendant  as  her  medical  adviser.  If  there  had  been  no 
consent  the  defendant's  act  would  have  been  indisputablv  an  assault ; 
and  under  the  circumstance,  therefore,  his  conduct  amounted  to  an 
assault  according  to  cases  which  I  should  be  sorry  to  see  infringed. 

Platt,  B.     1  think  my  brother  Patteson  has  pointed  out  th^  fallacy  ^^ 

of  Mr.  Horn's  argument  as  to  consent.  ||The_gid  consents  to  one  thin<r,   _^,^  ^^  cV 
and  the  defendant  does  another ;  "that  other  involving  an  ass.-inlt,.^  //  \^^^^^,J^^^ 

Conviction  affirmedy^^ 

1  Act.  Rex  V.  Nichols,  Russ.  &  Ry.  130;  Rex  v.  Rosinski,  1  Moodv  19-  Re<r  v 
Woodhurst,  12  Cox  C.  C.  443  ;  Reg;,  v.  Lock,  L.  R.  2  C.  C.  R.  10.  —  Ed".        '       ° 


^ 


<? 


250 


EEGINA  V.   CLARENCE.  [CHAP.  IV. 


EEGINA   V.  CLARENCE. 
Crown  Case  Reserved.     1888. 

[Reported  16  Cox  C.  C.  511,  22  Q.  B.  D.  23.] 
Wills,  J.,^   read   the  following  judgment:      The  prisoner  in   this 
case  has  been  convicted  (1)  of  '^  an  assault"  upon  his  wife,  "  occasion- 
ing actual  bodily  harm,"  under  sect.  24  &  25  Vict.  c.  100,  s.  47  ;  and 
{2)  of  "unlawfully  and  maliciously  inflicting"  upon  her  "grievous 
bodily  harm  "  under  sect.  20  of  the  same  statute.     The  facts  are  that 
he  was,  to  bis  knowledge,  suffering  from   gonorrhoea;    that  he  had 
marital  intercourse  with  his  wife  without  informing  her  of  the  fact; 
that  he  infected  her,  and  that  from  such  infection  she  suffered  grievous 
bodily  harm.     The  question  is,  whether  he  was  rightly  convicted  upon 
either  count.     First,  was  he  guilty  of  an  assault?     In  support  of  a 
conviction  it  is  urged  that  even  a  married  woman  is  under  no  obliga- 
tion to  consent  to  intercourse  with  a  diseased  husband  ;  that  had  the 
wife  known  that  her  husband  was  diseased  she  would  not  have  con- 
sented ;  that  the  husband  was  guilty  of  a  fraud  in  concealing  the  fact 
of  his  illness  ;    that  her  consent  was  therefore  obtained  by  fraud,  and 
was  therefore  no  consent  at  all,  and,  as  the  act  of  coition  would  imply 
an  assault  if  done  without  consent,  he  can  be  convicted.     This  reason- 
ing seems  to  me  eminently  unsatisfactory.     That  consent  obtained  by 
fraud  is  no  consent  at  all  is  not  true  as  a  general  proposition  either  in 
fact  or  in  law.     If  a  man  meets  a  woman  in  the  street  and  knowingly 
gives  her  bad  money  in  order  to  procure  her  consent  to  intercourse 
with  him,  he  obtains  her  consent  by  fraud,  but  it  would  be  childish  to 
say  that  she  did  not  consent.     In  respect  of  a  contract,  fraud  does  not 
destroy  the  consent ;   it  only  makes  it  revocable.     Money  or  goods 
obtained  by  false  pretences  still  become  the  property  of  the  fraudulent 
obtainer  unless  and  until  the  contract  is  revoked  by  the  person  de- 
frauded, and  it  has  never  been  held  that,  as  far  as  regards  the  applica- 
tion  of  the    criminal  law,    the    repudiation   of  the   contract   had   a 
retrospective  effect,  or  there  would  have  been  no  distinction  between 
obtaining  money  under  false  pretences  and  theft.     A  second  and  far 
more  effective  way  of  stating  the  argument,  however,  is  that  connection 
with  a  diseased  man  and  connection  with  a  sound  man  are  things  so 
essentially  different  that  the  wife's  submission  without  knowledge  of 
the  facts  is  no  consent  at  all.     It  is  said  that  such  a  case  rests  upon 
the  same  footing  with  the  consent  to  a  f^upposed  surgical  operation  or 
to  connection  with  a  man  erroneously  supposed  to  be  the  woman's 
husband.     In  the  latter  case  there  has  been  great  difference  of  judicial 
1  Part  of  each  opinion,  not  involving  the  question  of  assault,  is  omitted. 


SECT.  III.]  REGINA    V.   CLARENCE.  251 

opinion  as  to  whether  it  did  or  did  not  amount  to  the  crime  of  rape  ; 
but  as  it  certainly  would  now  be  rape  by  virtue  of  the  Criminal  Law 
Amendment  Act,  1885  (48  &  49  Vict.  c.  69),  s.  4,  I  treat  it  as  so  set- 
tled. A  third  way  of  putting  the  case  is,  that  inasmuch  as  the  act 
done  amounts  to  legal  cruelty  according  to  the  doctrines  formerly  of 
the  Ecclesiastical  Courts,  and  now  of  the  Divorce  Court,  it  cannot  be 
said  to  be  within  the  consent  implie(]  by  the  marital  relation.  These 
different  ways  of  putting  the  argument  in  favor  of  a  conviction  have 
some  important  differences.  According  to  each  the  consent  of  the 
marital  relation  does  not  apply  to  the  thing  done,  —  a  fact  as  to  which 
there  does  not  seem  to  be  room  for  doubt,  and  according  to  each  the 
want  of  it  makes  the  transaction  an  assault.  According  to  the  first,  it 
is  the  fraudulent  suppression  of  the  truth  which  destroys  the  consent 
de  facto  given,  a  proposition  involving  as  a  necessarj-  element  in  the 
offence  the  knowledge  of  his  condition  on  the  part  of  the  offender. 
According  to  the  second,  it  is  the  difference  between  the  thing  sup- 
posed to  be  done  and  the  thing  actually  done  that  negatives  the  idea 
of  consent  at  all,  and  in  that  view  it  must  be  immateiial  whether  the 
offender  knew  that  he  was  ill  or  not.  According  to  the  third,  his 
knowledge  is  material,  not  on  the  ground  of  fraudulent  misrepresenta- 
tion, but  because  it  is  an  element  in  legal  cruelty  as  that  term  is  under- 
stood in  the  Divorce  Court.  It  makes  a  great  difference  upon  which 
of  these  grounds  a  conviction  is  supported.  Each  of  them  covers  an 
area  vastly  greater  than  the  ground  occupied  by  the  circumstances  of 
the  present  case.  If  the  first  view  be  correct,  every  man,  as  has  been 
pointed  out,  who  knowingl}'  gives  a  piece  of  bad  money  to  a  prostitute 
to  procure  her  consent  to  intercourse,  or  who  seduces  a  woman  by 
representing  himself  to  be  what  he  is  not,  is  guilt}'  of  assault,  and,  as 
it  seems  to  me,  therefore,  of  rape.  If  the  second  view  be  correct,  it 
applies  in  similar  events  just  as  much  to  unmarried  as  to  married 
people,  unless  the  circumstances  should  establish  that  the  parties  were 
content  to  take  their  chances  as  to  their  respective  states  of  health ; 
and  the  allegation  that  a  man  had  given  an  assurance  to  a  prostitute 
before  having  intercourse  with  her  that  he  was  sound  when  he  was  not 
so  in  fact,  might  be  a  ground  for  putting  him  upon  a  trial  for  rape.  If 
the  third  view  be  correct,  it  places  the  married  man,  in  the  eye  of  the 
criminal  law,  in  a  much  worse  position  than  the  unmarried,  and  makes 
him  guilty  of  an  assault,  and  possibly  of  rape,  when  an  unmarried  man 
would  not  be  liable  to  the  same  consequences.  It  may  be  said  that, 
from  the  moral  point  of  view,  his  case  is  the  worse  ;  but  there  are  two 
sides  to  this  as  to  most  other  questions.  The  man  who  goes  out  of  his 
wa}"  to  seek  intercourse  under  such  circumstances  —  and,  be  it  remem- 
bered that  the  hypothesis  I  am  now  dealing  with  assumes  knowledge  of 
his  condition  on  the  part  of  the  man  —  is  without  excuse.  There  may 
be  many  excuses  for  the  married  man  suggested  by  the  modes  of  life 
with  which  poverty  and  overcrowding  have  to  do.  We  are  thus  intro- 
duced, as  it  seems  to  me,  to  a  set  of  very  subtle  metaphysical  questions. 


252 


EEGINA   V.   CLARENCE.  [CHAP.  IV. 


If  we  are  invited  to  apply  the  analogy  of  the  cases  in  which  a  man  has 
procured  intercourse  by  personating  a  husband,  or  by  representing  that 
he  was  performing  a  surgical  operation,    we  have  to   ask  ourselves 
whether  the  procurement  of  intercourse  by  suppressing  the  fact  that 
the  man  is  diseased  is  more  nearly  allied  to  the  procureme-t  of  inter- 
course by  misrepresentation  as  to  who  the  man  is,  or  as  to  what  is 
being  done,  or  to  misrepresentations  of  a  thousand  kinds  in  respect  of 
whicTi  it  has  never  yet  occurred  to  any  one  to  suggest  that  intercourse 
so  procured  was  an  assault  or  a  rape.     There  are  plenty  of  such  in- 
stances in  wliich  the  knowledge  of  the  truth  would  have  made  the 
victim  as  ready  to  accept  the  embraces  of  a  man  stricken  with  small- 
pox or  leprosy.      Take,   for  example,  the  case  of  a  man  without  a 
single  good  quality,  a  gaol-bird,  heartless,  mean,  and  cruel,  without 
the°smallest  intention  of  doing  anything  but  possessing  himself  of  the 
person  of  his  victim,  but  successfully  representing  himself  as  a  man  ot 
good  family  and  connections  prevented  by  some  temporary  obstacle 
from  contracting  an  immediate  marriage,  and  with  conscious  hypocrisy 
acting  the  part  of  a  devoted  lover,  and  in  this  fashion,  or  perhaps  under 
the  guise  of  affected  religious  fervor,  effecting  the  ruin  of  his  victim. 
In  all  that  induces  consent  there  is  not  less  difTerence  between  the  man 
to  whom  the  woman  supposes  she  is  yielding  herself  and  the  man  by 
whom  she  is  really  betrayed,  than  there  is  between  the  man  bodily 
sound  and  the  man  afflicted  with  a  contagious  disease.     Is  there  to  be 
a  distinction  in  this  respect  between  an  act  of  intercourse  with  a  wife 
who  on  this  special  occasion  would  have  had  a  right  to  refuse  her  con- 
sent, and  certainly  would  have  refused  it  had  she  known  the  truth,  and 
the  intercourse  taking  place  under  the  general  consent  inferred  from 
a  bigamous  marriage  obtained  by  the  false  representation  that  the  man 
was  capable  of  contracting  a  legal  marriage?     In  such  a  case  the  man 
can  give  no  title  of  wife  to  the  woman  whose  person  he  obtains  by  the 
false  representation  that  he  is  unmarried,  and  by  a  ceremony  which, 
under  the  circumstances,  is  absolutely  void.     Where  is  the  difference 
between  consent  obtained  by  the  suppression  of  the  fact  that  the  act  of 
intercourse  may  produce  a  foul  disease,  and  consent  obtained  by  the 
suppression  of  the  fact  that  it  will  certainly  make  the  woman  a  concu- 
bine, and  while  destroying  her  status  as  a  virgin  withhold  from  her  the 
title  and  rights  of  a  wife?     Where  is  the  distinction  between  the  mis- 
take of  fact  which  induces  the  woman  to  consent  to  intercourse  with  a 
man  supposed  to  be  sound  in  body,  but  not  really  so,  and  the  mistake 
of  fact  which  induces  her  to  consent  to  intercourse  with  a  man  whom 
she  believes  to  be  her  lawful  husband,  but  who  is  none?     Many  women 
would  think  that,  of  two  cruel  wrongs,  the  bigamist  had  committed  the 
worse.    These  are  but  specimens  of  the  questions  which  must  be  faced 
before  the  circumstances  of  the  present  case  can  be  pronounced  to 
constitute  an  assault ;  and  such  considerations  lead  one  to  pause  on 


SECT.  III.]  REGINA   V.   CLARENCE.  253 

the  threshold  and  inquire  whether  the  enactment  under  consideration 
could  really  have  been  intended  to  appl}'  to  circumstances  so  com- 
pletely removed    from  those  which  are  usually  understood  Avhen  an 
assault  is  spoken  of,  or  to  deal  with  matters  of  any  kind  involving  the 
sexual  relation  or  act.     The  description  of  the  offence  constituted  by 
sect.   47  it  as   follows:  "Whoever  shall  be  convicted  of  an  assault 
occasioning  actual  bodily  harm."     The  section  is  the  last  of  a  group  of 
twelve  headed  "Assaults."     None  of  them   except  sect.   43  implies 
that  any  distinction  between  males  and  females  is  thought  of,  and  that 
section  points  to  nothing  of  a  sexual  character.     It  merely  provides 
that  in  cases  of  assault  upon  males  under  fourteen  and  upon  females 
generally,  if  the  assault  or  battery  is  of  such  an  aggravated  character 
that  it  cannot  in  the  opinion  of  the  justices  be  sufficiently  punished  as  a 
common  assault  or  battery,  it  shall  be  lawful  for  them  to  inflict  a  heavier 
punishment.     Indecent  assaults,  as  such,  upon  females  are  dealt  with 
by  sect.  52,  and  upon  males  by  sect.   62,  and  there  is  therefore  no 
ground  for  supposing  that  anything  specially  between  the   sexes  is 
pointed  at  either  by  this  section,  or  by  any  of  those  in  the  group  to 
which  it  belongs.     The  next  group  of  eight  sections  (48-55)  is  headed 
"Rape,  abduction,  or  defilement  of  women,"  and  deals  specially  with 
sexual  crimes.     Surely  this  was  the  place  in  which  to  find  an  enact- 
ment dealing  with  the  very  peculiar  circumstances  now  before  us,  and 
it  cannot  really  have  been  mtended  that  they  should  be  embraced  by  a 
section  whose  terms  are  applicable  to,  and  as  it  seems  to  me  satisfied 
by,  the  class  of  cases  which  would  naturally  occur  to  one's  mind,  those 
of  direct  violence.     The  worst  of  the  contagious  diseases  of  this  class 
has,  I  believe,  been  known  in  this  country  for  clo.se  upon  four  centuries. 
The  circumstances  which  have  happened  in  this  case  cannot  have  been 
of  infrequent  occurrence  during  that  interval,  and  cannot  have  failed 
justly  to  give  rise  to  the  bitterest  resentment.     It  seems  to  my  mind  a 
very  cogent  argument  against  the  conviction  that,  if  the  view  of  the 
law  upon  which  it  is  founded  be  correct,  thousands  of  oflTending  hus- 
bands, and  as  I  think  also  of  offending  wives,  must  have  rendered 
themselves  amenable  to  the  criminal  law ;  and  yet  it  was  reserved  for 
the  year  1866,  when  Reg.  v.  Bennett  (4  F.  &  F.  1105)  was  decided,  to 
discover  that  such  transgressors  might  have  been  indicted  and  crimi- 
nally dealt  with  during  all  that  long  period.     It  is  true  that  women  take 
a  diflTerent  place  in  social  position,  and  have  by  Act  of  Parliament 
many  rights  and  by  common  usage  much  social  liberty  which  no  one 
would  have  claimed  for  them  centuries  ago.     This  fact,  however,  seems 
to  me  a  strangely  insufficient  reason  for  a  new  reading  of  the  criminal 
law  fraught  with  consequences  which  no  one  can  deny  to  be  of  a  very 
serious  and  widespread  character.     The  principle  upon  which  a  convic- 
tiop  in  this  case  must  be  upheld  will  or  will  not  apply  to  the  intercourse 
of  unmarried,  as  well  as  of  married,  men  and  women,  according  to  the 
ground  or  grounds  selected  upon  which  to  justify  it.     If  it  is  based 


254  EEGINA   V.   CLARENCE.  [CHAP.  IV. 

upon  the  notion  of  cruelty  as  understood  in  the  Divorce  Court,  the 
case  of  the  unmarried  man  and  woman  falls  without  its  purview.     If 
suppression  of  the  truth  be  a  material  element  in  the  inquiry,  actual 
misrepresentation  on  the  subject  of  health  would  put  an  unmarried 
man  or  woman  in  the  same  position  as  the  married  man  or  woman 
who  conceals  that  fact  against  which  the  married  state  ought  to  be  a 
sufficient  guarantee.     I  intentionally  refer  to  women  as  well  as  men, 
for  it  is  a  great  mistake  to  look  at  questions  of  this  kind  as  if  sexual 
faults  and  transgressions  were  all  on  the  side  of  one  sex.     The  unmar- 
ried woman  who  solicits  and  tempts  a  perhaps  reluctant  man  to  inter- 
course which  he  would  avoid  like  death  itself  if  he  knew  the  truth  as  to 
her  health,  must  surely,  under  some  circumstances  at  least,  come  under 
the  same  criminal  liability  as  the  same  man.     If,  again,  the  conviction 
be  upheld  on  the  ground  of  the  difference  between  the  thing  consented 
to  and  the  thing  done,  the  priuciple  will  extend  to  many,  perhaps  most, 
cases  of  seduction  and  to  other  forms  of  illicit  intercourse,  including  at 
least  theoretically  the  case  of  prostitution ;  and  if  such  difference  be 
the  true  ground  upon  which  to  base  a  confirmation  of  the  conviction, 
knowledge  of  his  or  her  condition  on  the  part  of  the  person  affected 
is  immaterial.     It  is  the  knowledge  or  want  of  knowledge  on  the  part 
of  the  person  who  suffers  from  contagion  alone  that  is  the  material 
element.     Surely  these  considerations  point  to  the  conclusion  that  a 
wide  door  will  be  opened  to  inquiries  not  of  a   wholesome  kind,  in 
which  the  difficulties  in  the  way  of  arriving  at  truth  are  often  enor- 
mous, and  in  which  the  danger  of  going  wrong  is  as  great  as  it  is  by 
people  in  general  inadequately  appreciated.     A  new  field  of  extortion 
may  be  developed,  and  very  possibly  a  fresh  illustration  afforded  of 
the  futility  of  trying  to  teach  morals  by  the  application  of  the  criminal 
law  to  cases  occupying  the  doubtful  ground  between  immoralit}'  and 
crime,  and   of  the  dangers  which   always   beset  such  attempts.      Of 
course,  if  b}-  legislation  such  cases  should  be  brought  within  the  crim- 
inal law,  all  we  shall  have  to  do  will  be  to  face  the  difficulties  and  do 
our  best  to  administer  the  law.     It  seems  to  me,  however,  that  such 
an  extension  of  the  criminal  law  to  a  vast  class  of  cases  with  v.'hich  it 
has  never  yet  professed  to  deal  is  a  matter  for  the  Legislature  and  the 
Legislature  only.     I  understand  the  process  of  expansion  by  which 
the  doctrines  of  the  common  law  are  properly  made  by  judicial  con- 
struction to  apply  to  altered  modes  of  life  and  to  new  cii-cumstances 
and  results  thus  brought  about  which  would  have  startled  our  ancestors 
could  they  have  foreseen  them.     I  do  not  understand  such  a  process, 
and  I  do  not  think  it  legitimate,  when  every  fact  and  every  circum- 
stance which  goes  to  constitute  the  alleged  offence  is  identical  with 
what  it  has  been  for  many  hundreds  of  years  past.     Whether  further 
legislation  in  this  direction  is  desirable  is  a  question  for  legislators  rather 
than  lawyers,  and  the  only  remark  that  I  desire  to  make  upon  this  sub- 
ject is  that,  apart  from  cases  of  actual  violence,  and  of  children  so 


I 


SECT.  III.]  "  KEGINA   v.    CLARENCE.  255 

young  that  the  very  fact  of  touching  them  in  the  way  of  sexual  rela- 
tion may  fairly  be  treated  as  a  crime,  the  mysteries  of  sexual  impulses 
and  intercourse  are  well  nigh  insoluble,  and  the  difficulty  of  arriving  at 
the  truth  in  the  case  of  imputed  misconduct  enormous  ;  and  I  doubt 
whether  they  can  be  thoroughly  appreciated  without  the  experience 
gained  by  trying  cases  of  intercourse  with  girls  near  the  age  of  six- 
teen, and  they  certainly  suggest  the  necessity  of  the  utmost  care  in 
dealing  b}'  way  of  legislation  with  the  subject  under  discussion.     If 
intercourse   under   the   circumstances    now  in  question    constitute  an 
assault  on  the  part  of  the  man,  it  must  constitute  rape,  unless,  indeed, 
as  between  married  persons  rape  is  impossible,  —  a  proposition  to  which 
I  certainly  am  not  prepared  to  assent,  and  for  which  there  seems  to  me 
to  be  no  sufficient  authority.     As  between  unmarried  people  this  quali- 
fication will  not  apply.     I  cannot  understand  why,  as  a  general  rule,  if 
intercourse  be  an  assault,  it  should  not  be  a  rape.     To  separate  the 
act  into  two  portions,  as  was  suggested  in  one  of  the  Irish  cases,  and 
to  say  that  there  was  consent  to  so  much  of  it  as  did  not  consist  in  the 
administration  of  an  animal  poison,  seems  to  me  a  subtlet}'  of  an  ex- 
treme kind.     There  is,  under  the  circumstances,  just  as  much  and  just 
as  little  consent  to  one  part  of  the  transaction  as  to  the  rest  of  it.     No 
one  can  doubt  that  in  this  case,  had  the  truth  been  known,  there  would 
have  been  no  consent  or  even  a  distant  approach  to  it.     I  greatly  prefer 
the  reasoning  of  those  who  say  that,  because  the  consent  was  not  to 
the  act  done,  the  thing  done  is  an  assault.     If  an  assault,  a  rape  also, 
as  it  appears  to  me.     I  am  well  aware  of  the  respect  due  to  the  opinion 
of  the  very  learned  judges  from  whom  I  differ  ;  but  I  cannot  help  say- 
ing that  to  me  it  seems  a  strange  misapplication  of  language  to  call 
such  a  deed  as  that  under  consideration  either  a  rape  or  an  assault.     In 
o'iier  words,  it  is,  roughly  speaking,  where  the  woman  does  not  intend 
that  the  sexual  act  shall  be  done  upon  her  either  at  all,  or,  what  is 
pretty  much  the  same  thing,  by  the  particular  individual  doing  it ;  and 
an  assault  which  includes  penetration  does  not  seem  to  me,  under  such 
circumstances,  to  be  anything  but  rape.     Of  course,  the  thing  done  in 
the  present  case  is  wicked  and  cruel  enough.     No  one  wishes  to  say  a 
word  in  palliation  of  it.     But  that  seems  to  me  to  be  no  reason  for 
describing  it  as  something  else  than  it  is,  in  order  to  bring  within  the 
criminal  law  an  act  which,  up  to  a  very  recent  time,  no  one  ever 
thought  was  within  it.     If  coition,  under  the  circumstances  in  question, 
be  an  assault,  and  if  the  reason  wh}'  it  is  an  assault  depends  in  any 
degree  upon  the  fact  that  consent  would  have  been  withheld  if  the 
truth  had  been  known,  it  cannot  the  less  be  an  assault  because  no  mis- 
chief ensues  to  the  woman,  nor,  indeed,  where  it  is  merely  uncertain 
whether  the  man  be  infected  or  not.     For  had  he  disclosed  to  the 
woman  that  there  might  be  the  peril  in  question,  she  would,  in  most 
cases  other  than  that  of  mere  prostitution,  have  refused  her  consent, 
and  it  is,  I  should  hope,  equally  true  that  a  married  woman,  no  less 


256 


KEGINA   V.   CLARENCE.  [CHAP.  IV. 


than  an  unmarried  woman,  would  be  justified  in  sucli  a  refusal.  In  all 
such  cases,  therefore,  apart  from  the  suggested  impossibility  of  rape 
upon  a  wife,  rape  must  be  committed,  and  a  great  many  rapes  must  be 
constantly  taking  place  without  either  of  the  parties  having  the  least 
idea  of  the  fact.  The  question  raised  is  of  very  wide  application.  It 
does  not  end  with  the  particular  contagion  under  consideration,  but 
embraces  contagion  communicated  by  persons  having  small-pox  or 
scarlet  fever,  or  other  like  diseases  quite  free  from  the  sexual  element, 
and  whilst  so  afflicted  coming  into  a  personal  contact  with  others  which 
would  certainly  have  been  against  the  will  of  those  touched  had  they 
known  the  truth.  This  species  of  assault,  if  assault  it  be,  must  have 
been  of  much  longer  standing  than  the  four  centuries  I  have  alluded 
to,  and  it  involves  no  considerations  depending  upon  the  social  status 
of  women,  yet  no  one  has  ever  been  prosecuted  for  an  assault  so  con- 
stituted. But  upon  this  point  I  desire  only  to  express  my  concurrence 
in  the  observations  of  my  brother  Stephen,  which  I  have  had  the 
opportunity  of  reading.  I  wish  to  observe  that,  if  an  assault  can  be 
committed  by  coition  to  which  consent  has  been  procured  by  suppres- 
sion of  the  truth  or  misrepresentation  as  to  the  state  of  health  of  one 
of  the  parties,  questions  of  the  kind  I  have  indicated  will  be  triable, 
may  be  tried  now  at  petty  sessions.  The  observation  is  not,  of  course, 
conclusive ;  but  it  is  well  to  appreciate  whither  a  conviction  in  the 
present  case  must  lead  us,  not  only  as  regards  the  subject-matter  of 
the  criminal  law,  but  as  to  the  tribunals  which  will  have  to  administer 
it  When  the  Act  of  1861  (24  &  25  Vict.  c.  100)  was  passed,  it  had 
never  occurred  to  any  human  being,  so  far  as  our  legal  history  affords 
any  clue,  that  the  circumstances  now  under  consideration  constituted 
an  assault.  The  term  is  as  old  as  any  in  our  law,  but  it  had  never 
been  so  applied.  The  doctrine  owes  its  origin  to  the  remarks  of 
Willes,  J.,  at  the  Taunton  Assizes,  held  in  1866,  and  reported  in  Reg. 
V.  Bennett  (4  F.  &  F.  1105).  It  was  pointed  out  in  the  Irish  case  of 
Hegarty  v.  Shine  (Ir.  L.  Rep.  2  C.  L.  273  ;  C.  A.  Ir.  L.  Rep.  4  C.  L. 
288)  that  the  conviction  might  be  upheld,  on  the  ground  that  the  girl 
was,  as  she  alleged,  asleep  when  intercourse  took  place,  and  therefore 
gave  no  consent.  In  spite  of  all  m\'  respect  for  everything  that  fell 
from  the  lips  of  that  very  great  lawyer,  I  am  compelled  to  think  that 
it  was  a  case  in  which  he  strained  the  law  for  the  purpose  of  punishing 
a  great  wrong,  and  I  confess  myself  unable  to  follow  his  view,  that 
the  thing  done  in  that  case  might  be  an  assault  and  yet  not  a  rape. 
Were  it,  however,  possible  that  the  mere  words  of  the  section  would 
apply  to  the  transaction  in  question,  and  that  it  were  capable  of  being 
described  as  an  assault,  I  am  still  of  opinion  that  the  context  shows 
that  sexual  crimes  were  intended  to  be  dealt  with  as  a  class  by  them- 
selves, the  only  rational  wa}'  of  legislating  upon  such  a  subject ;  and  if 
the  letter  of  the  section  could  be  satisfied  by  the  present  circumstances, 
there  never  was  a  case  to  which  the  maxim  Qui  hceret  in  literd  hceret 
in  cortice  more  emphatically  applied. 


SECT.  III.]  KEGINA   V.   CLARENCE.  257 

Hawkins,  J.,  read  the  following  judgment :  I  am  of  opinion  that 
the  prisoner  was  rightly-  convicted  upon  both  counts  of  the  indictment. 
The  first  count  was  framed  under  sect.  20  of  24  &  25  Vict.  c.  100,  and 
charged  the  prisoner  with  "  unlawfully'  and  maliciously  inflicting  griev- 
ous bodily  harm  "  upon  Selina  Clarence.  The  second  count  was  framed 
imder  sect.  47  of  the  same  Act,  and  charged  him  with  an  "assault" 
upon  the  said  Selina  Clarence,  "occasioning"  her  "actual  bodily 
harm."  At  the  time  of  the  committing  of  the  offences  charged  Selina 
Clarence  was  and  still  is  the  wife  of  the  prisoner.  At  that  time  the 
prisoner  was  suffering  from  gonorrhoea,  as  he  knew,  but  his  wife  was 
ignorant  of  the  fact.  In  this  condition  of  things  the  prisoner  had 
sexual  intercourse  with  his  wife,  and  in  so  doing  communicated  to  her 
his  disease,  and  thereby  caused  her  grievous  bodily  harm.  It  must 
also  he  taken  as  a  fact  that,  had  the  prisoner's  wife  known  that  he  was 
so  suffering  she  would  have  refused  to  submit  to  such  intercourse.  On 
the  prisoner's  behalf  it  was  contended  that  the  conviction  was  wrong 
upon  several  grounds :  first,  that  the  injury  caused  to  the  wife  was  the 
result  of  a  lawful  act,  viz.,  the  sexual  communion  of  a  husband  with 
his  wife  ;  secondly,  that  the  charge  in  the  first  count  involved,  and  that 
in  the  second  count  was  based  on,  an  assault,  and  that  no  assault 
could  be  committed  by  a  husband  in  merely  exercising  his  marital 
right  upon  the  person  of  his  wife  ;  and,  thirdly,  that  the  sections  of  the 
statute  under  which  the  indictment  was  framed  had  no  application  to 
such  circumstances  as  those  above  mentioned.  About  the  unlawfulness 
and  maliciousness  of  the  prisoner's  conduct  it  seems  to  me  impossible 
to  raise  a  doubt.  It  has  long  been  established  by  authority  that,  if  a 
husband  knowingly  communicates  to  his  wife  a  venereal  disease,  such 
misconduct  amounts  to  legal  cruelty,  and  is  ground  for  judicial  separa- 
tion ;  and,  in  the  absence  of  evidence  to  the  contrary,  it  may  be  pre- 
sumed that  a  man  suffering  under  A'enereal  disease  knows  it,  and  knows 
also  that,  if  he  has  communion  with  his  wife,  be  will  in  all  human 
probability  communicate  his  malady  to  her  (see  Brown  v.  Brown,  L./ 
Rep.  1  P.  &  D.  46).  It  is  equally  clear  that  wilfully  to  do  an  unlawful 
act  to  the  prejudice  of  another  is  to  do  it  maliciously.  We  have,  then, 
these  elements  established,  grievous  bodily  harm  unlawfully  and 
maliciously  caused.  ...  I  proceed  now  to  consider  the  question 
whether  there  was  in  fact  an  assault  by  the  prisoner  on  his  wife  occa- 
sioning her  either  grievous  or  actual  bodily  harm.  I  answer  this 
question  also  in  the  affirmative.  By  the  marriage  contract  a  wife  no 
doubt  confers  upon  her  husband  an  irrevocable  privilege  to  have  sexual 
intercourse  with  her  during  such  time  as  the  ordinary  relations  created 
by  such  contract  subsist  between  them.  For  this  reason  it  is  that  a 
husband  cannot  be  convicted  of  a  rape  committed  by  him  upon  the 
person  of  his  wife.  But  this  marital  privilege  does  not  justify  a  hus- 
band in  endangering  his  wife's  health  and  causing  her  grievous  bodily 
harm  b3'  exercising  his  marital  privilege  when  he  is  suffering  from 
venereal  disorder  of  such  a  character  that  the  natural  consequence  of ) 

17 


258  KEGINA   V.    CLARENCE.  "^ '  [C  HA  P.  IV. 

such  communion  will  be  to  communicate  the  disease  to  her.     Lord 
Stowcll,  in  Popkin  v.  Popkin,  cited  in  Durant  v.  Durant  (1  Hagg.  Lccl. 
Rep   767)  said  •  "  The  husband  has  a  right  to  the  person  of  his  wife, 
but  'not  if  her  health  is  endangered."     So,  to  endanger  her  health, 
and  cause  her  to  suffer  from  loathsome  disease  contracted  through  his 
own  infidelity  cannot,  by  the  most  liberal  construction  of  his  matri- 
monial privilege,  be  said  to  fall  within  it ;  and,  although  I  can  cite  no 
direct  authority  upon  the  subject,  I  cannot  conceive  it  possible  seri- 
ously to  doubt'that  a  wife  would  be  justified  in  resisting  by  all  means 
in  her  power  — nay,  even  to  the  death,  if  necessary  —  the  sexual  em- 
braces of  a  husband  suffering  from  sucli  contagious  disorder.     In  my 
judgment,  wilfully  to  place  his  diseased  person  in  contact  with  hers 
without  her  express  consent  amounts  to   an   assault.      It  has  been 
argued  that,  to  hold  this,  would  be  to  hold  that  a  man  who,  suffering 
from  gonorrhoea,  has  communion  with  his  wife  might  be  guilty  of  the 
crime  of  rape.     I  do  not  think  this  would  be  so.     Rape  consists  in  a 
man  having  sexual  intercourse  with  a  woman  without  her  consent,  and 
the  maritaf  privilege  being  equivalent  to  consent  given  once  for  all  at 
the  time  of  marriage,  it  follows  that  the  mere  act  of  sexual  communion 
is  lawful ;  but  there  is  a  wide  difference  between  a  simple  act  of  com- 
munion which  is  lawful  and  an  act  of  communion  combined  with  infec- 
tious contagion  endangering  health  and  causing  harm  which  is  unlawful. 
It  may  be  said  that,  assuming  a  man  to  be  diseased,  still,  as  he  cannot 
have  communion  with  his  wife  without  contact,  the  communication  of 
the  disease  is  the  result  of  a  lawful  act,  and  therefore  cannot  be  crim- 
inal.    My  reply  to  this  argument  is  that  if  a  person,  having  a  privilege 
of  which  he  may  avail  himself  or  not  at  his  will  and  pleasure,  cannot 
exercise  it  without  at  the  same  time  doing  something  not  included  in 
this  privilege,  and  which  is   unlawful  and  dangerous  to  another,  he 
must  either  forego  his  privilege  or  take  the  consequences  of  his  unlaw- 
ful conduct.     I  may  further  illustrate  my  view  upon  this  part  of  the 
case  by  applying,  by  way  of  test,  to  an  indictment  for  assault  the  old 
form  of  civil  pleadings.     Thus  :    Indictment  for  an  assault ;    plea  of 
justification,  that  the  alleged  assault  was  the  having  sexual  communion 
with  the  prosecutrix,  she  being  the  prisoner's  wife ;   new  assignment, 
that  the  assault  charged  was  not  that  charged  in  the  plea,  but  the  un- 
lawful and  malicious  contact  of  her  person  with  dangerous  and  contagious 
disease.     What  possible  justification  could  be  pleaded  or  answer  given 
to  such  new  assignment?     I  ought  perhaps  to  state  that,  even  if  to  hold 
a  husband  liable  for  an  assault  under  such  circumstances  would  be  to 
subject  him  also  to  a  charge  of  rape,  the  opinion  I  have  above  expressed 
would  not  be  changed.     No  jury  would  be  found  to  convict  a  husband 
of  rape  on  his  wife  except  under  ver^'  exceptional  circumstances,  any 
more  than  they  would  convict  of  larceny  a  servant  who   stealthily 
appropriated  to  her  own  use  a  pin  from  her  mistress's  pincushion.     I 
can,  however,  readily  imagine  a  state  of  circumstances  under  which  a 
husband  might  deservedly  be  punished  with  the  penalty  attached  to 


SECT.  III.]  REGINA  t'.    CLARENCE.  259 

rape,  and  a  person  committing  a  tlieft  even  of  a  pin  to  the  penalty 
attached  to  larceny.  The  cases  put  of  a  person  suffering  from  small- 
pox, diphtheria  or  any  other  infectious  disorder,  thoughtlessly  giving  a 
wife  or  child  a  mere  affectionate  kiss  or  shake  of  the  hand  from  which 
serious  consequences  never  contemplated  ensued,  seem  to  me  cases  in 
which  it  is  impossible  to  suppose  any  criminal  prosecution  would  be 
tolerated,  or  could,  if  tolerated,  result  in  a  conviction  ;  but  I  can 
picture  to  myself  a  state  of  things  in  which  a  kiss  or  shake  of  the 
hand  given  by  a  diseased  person,  maliciously  with  a  view  to  communi- 
cate his  disorder,  might  well  form  the  subject  of  criminal  proceedings. 
I  will  not,  however,  stop  to  discuss  such  imaginary  cases  further.  The 
case  of  Reg.  v.  Bennett  (4  F.  &  F.  1105),  decided  in  1866,  is  an 
authority  directly  in  support  of  the  view  I  have  taken.  The  indictment 
was  for  an  indecent  assault  on  a  girl  who  had  consented  to  sleep  with 
the  prisoner,  who  had  connection  with  her,  and  communicated  to  her  a 
foul  disease.  Willes,  J.,  before  whom  the  case  was  tried,  in  summing- 
up,  told  the  jury  that,  though  it  would  have  been  impossible  to  have 
established  rape,  yet  if  the  girl  did  not  consent  to  the  aggravated  cir- 
cumstances—  i.  e.,  to  connection  with  a  diseased  man  —  his  act  would 
be  an  assault.  Willes,  J.,  no  doubt,  according  to  the  report,  based  his 
observations  upon  the  Vule  that  fraud  vitiates  consent ;  but  it  is  clear 
his  mind  was  alive  to  the  point  I  have  been  considering,  viz.,  that, 
though  there  might  be  such  consent  to  sexual  intercourse  as  to  make 
the  connection  no  rape,  nevertheless,  the  infectious  contact  might 
amount  to  an  assault.  See  also  Hegarty  v.  Shine,  14  Cox  C.  C.  124  ; 
s.  c.  C.  A.  ib.  145  ;  and  Reg.  v.  Sinclair,  13  Cox  C.  C.  28.  In  dealing 
with  this  case  my  judgment  is  not  based  upon  the  doctrine  that  fraud 
vitiates  consent,  because  I  do  not  think  that  doctrine  applies  in  the 
case  of  sexual  communion  between  husband  and  wife.  The  sexual 
communion  between  them  is  by  virtue  of  the  irrevocable  privilege  con- 
ferred once  foi-  all  on  the  husband  at  the  time  of  the  marriage,  and 
not  at  all  by  virtue  of  a  consent  given  upon  each  act  of  communion,  as 
is  the  case  between  unmarried  persons.  My  judgment  is  based  on  the 
fact  that  the  wrongful  act  charged  against  the  prisoner  was  not  involved 
in  or  sanctioned  by  his  marital  privilege,  and  was  one  for  which  no 
consent  was  ever  given  at  all.  For  this  reason  it  is  unnecessary  to 
discuss  or  express  any  opinion  upon  the  various  cases  cited  during  the 
argument  relating  to  connection  obtained  by  fraud,  and  I  accordingly 
abstain  from  doing  so.  Another  argument  used  for  the  prisoner  was 
that  such  cases  as  the  present  were  not  contemplated  by  the  statute 
under  which  he  was  indicted,  and  it  was  also  said  that,  if  it  had  been 
intended  that  the  communication  of  a  venereal  disease  to  a  woman 
during  an  act  of  sexual  intercourse,  consented  to  by  her,  should  be 
punishable  as  a  crime,  some  special  enactment  to  that  effect  would 
have  been  introduced  into  one  or  other  of  the  Acts  of  Pailiament  relat- 
ing to  women  and  offences  against  them.  This  is  an  argument  to 
which  I  attach  no  weight,  assuming  the  facts  bring  the  case  within  the 


260 


EEGIXA    V.   CLAEENCE.  [CHAP.  IV 


fair  interpretation  of  the  sections  to  which  I  have  referred.  Moreover, 
I  may  point  out  that  Reg.  v.  Bennett  (4  F.  &  F.  1105),  to  which  I 
have  referred,  was  tried  in  the  year  1866,  and  it  is  strange,  if  the 
law  as  there  laid  down  was  thought  to  be  contrary  to  the  law  of 
the  land  or  to  the  intention  of  the  Legislature,  that  in  no  subse- 
quent legislation  during  the  twenty-two  years  which  have  since  elapsed 
has  any' enactment  been  introduced  in  which  any  expression  is  to 
be  found  indicative  of  a  disapproval  of  that  decision  or  that  the 
intention  of  the  statute  was  at  variance  with  it.  I  think  the  Legisla- 
ture contemplated  the  punishment  of  all  grievous  bodily  harm,  however 
caused,  if  caused  unlawfully  and  maliciously ;  and  t  cannot  bring  my 
mind  for  an  instant  to  believe  that,  even  had  the  circumstances  before 
us  been  present  to  the  minds  of  the  framers  of  the  Act,  they  would 
have  excluded  from  its  operation  an  offence  as  crael  and  as  contrary  to 
the  oblif^ation  a  man  owes  to  his  wife  to  protect  her  from  harm  as  can 
well  be  conceived.  It  has  been  urged  that  the  case  of  husband  and 
wife  does  not  differ  from  that  of  unmarried  persons,  and  that  to  affirm 
this  conviction  would  tend  to  encourage  undesirable  prosecutions  where 
disease  has  been  communicated  during  illicit  communion.  I  do  not  by 
any  means  assent  to  these  propositions.  I  think  the  two  cases  are 
substantially  different.  The  wife  submits  to  her  husband's  em])races 
because  at  the  time  of  marriage  she  gave  him  an  irrevocable  right  to 
her  person.  The  intercourse  which  takes  place  between  husband  and 
wife  after  marriage  is  not  bv  virtue  of  any  special  consent  on  her  part, 
but  in  mere  submission  to  an  obligation  imposed  upon  her  by  law.  Con- 
sent is  immaterial.  In  the  case  of  unmarried  persons,  however,  consent 
is  necessary  previous  to  ever}-  act  of  communion,  and  if  a  common 
prostitute  were  to  charge  with  a  criminal  offence  a  man  who,  in  having 
had  connection  with  her  had  infected  her  with  disease,  few  juries  would 
under  ordinary  circumstances  hesitate  to  find  that  each  party  entered 
into  the  immoral  communion  tacitly  consenting  to  take  all  risks.  In 
the  case  of  women  other  than  prostitutes,  the  circumstances  of  each 
particular  case  would  have  to  be  considered,  and  the  question  how  far 
fraud  vitiates  consent  to  such  communion  would  also  have  to  bo  dealt 
with.  In  such  cases,  too,  shame  would  deter  most  decent  women  from 
appealing  to  the  law  ;  and,  if  a  man  were  the  sufferer,  seldom  would  he 
incur  the  ridicule  and  exposure  which  would  be  brought  upon  him. 
Considering  how  few  prosecutions  have  been  instituted  for  such  causes 
since  the  decision  in  Reg.  v.  Bennett  (4  F.  &  F.  1105),  and  enter- 
taining moreover,  as  I  do,  a  doubt  whether  any  person,  man  or 
woman,  could,  as  against  the  public  interests,  consent  to  the  inflic- 
tion of  grievous  bodily  harm,  so  as  to  give  a  legal  defence  to  a  crim- 
inal prosecution,  although  such  consent  might  afford  a  good  defence 
to  a  civil  action,  I  do  not  see  any  reason  for  such  fears  on  the  subject 
as  have  been  entertained.  Anyhow  they  cannot  affect  the  law.  Forti- 
fied in  my  opinion,  as  I  believe  myself  to  be,  by  the  plain  words  of  the 
statute,  and  by  the  authority  of  Willes,  J.,  one  of  the  greatest  and  most 


SECT.  III.]  REGINA   V.   BARROW.  261 

accurate  lawj'ers  of  modern  times,  1  have  arrived  at  the  conclusion 
that  this  conviction  is  right  and  in  accordance  with  the  law,  and  1  can- 
not therefore  be  a  part}'  to  a  judgment  whicli  in  effect  would  proclaim 
to  the  world  that  b}*  the  law  of  England  in  this  3'ear  1888  a  man  maj' 
deliberately,  knowingly,  and  maliciousl}'  perpetrate  upon  the  body  of 
his  wife  the  abominable  outrage  charged  against  the  prisoner,  and  yet 
not  be  punishable  criminally  for  such  atrocious  barbarit}'.  I  may  state 
that  this  judgment  has  been  x-ead  by  my  brother  Da}',  who  requests  me 
to  say  that  he  thoroughly  concurs  in  it.^ 

C  .-rJ<^^^^^  REGINA  V.  BARROW.        ^ J>  ^^^-^-^^ 

\  ^y^  Crown  Case  Reserved.     1868.    ^  t^^  ^  '   ^  '^  "tt 

[^Reported  L.  R.  I  Crown  Cases  Reserved,  1 56.]  '  <=?  . 

The  following  case  was  stated  b}'  Kell}',  C.  B.  :  — 
This  was  an  indictment  for  a  rape.     The  question  is  whether  the 
M  offence  as  proved  amounted  in  point  of  law  to  a  rape.     This  question 

\  depended  entirely  upon  the  evidence  of  the  prosecutrix,  Harriet  Gel- 

q|  dart,  which  was  as  follows  :  — 

"  I  and  m}'  husband  lodge  together  at  William  Garner's.     "We  sleep 

*i/  upstairs  on   the  first  floor,    and  were  in  bed    together  on   the   night 

f  J  of  Saturda}',  the  21st  of  June.     I  went  to  bed  about  12  o'clock,  and 

J  about  2   o'clock   on  Sunday   morning  I   was   lying   in    bed,   and  my 

husband  beside  me.     I  had  my  baby  in  m}'  arms,  and  was  between 

waking  and  sleeping.     I  was  completel}'  awakened  by  a  man  having 

connection  with  me,  and  pushing  the  baby  aside  out  of  my  arms.     He 

was    having  connection  with  me  at  the   moment  when  I  completely 

awoke.     I  thought  it  was  m}'  husband,  and  it  was  while  I  could  count 

4y  I    five  after  I  completel}'  awoke  before  I  found  it  was  not  my  husband. 

'  W  r    A  part  of  my  dress  was  over  m}'  face,  and  I  got  it  off,  and  he  was 

^jj    moving  away.     As  soon  as  1  found  it  was  not  my  husband,  1  pulled 

m}'  husband's  hair  to  wake  him.     The  prisoner  jumped  off  the  bed." 

On  cross-examination  she  added,  "  Till  I  got  my  dress  off  my  face  I 
thought  it  was  my  husband.  After  he  had  finished  I  ^Trilled  the  dress 
off  m}'  face.  I  was  completely  awakened  by  the  man  having  connec- 
tion with  me  and  the  bab}'  being  moved."  On  re-examination  she  said, 
"  The  bab}'  was  pushed  on  further  into  the  bed." 

The  jury  found  this  evidence,  as  I  have  stated  it,  to  be  true. 
Upon  these  facts  the  prisoner's  counsel,  Mr.  Cottingham,  submitted 
that  the  indictment  was  not  sustained,  and  quoted  1  Russell  on  Crimes, 
ed.  of  1843,  p.  677;  Rex  v.  Jackson,  Russ.  &  Ry.  487  ;  Reg.  v.  Saun- 
ders, 8  C.  &  P.  265  ;  Rex  v.  Williams,  8  C.  &  P.  286  ;  Reg.  v.  Camp- 

1  Smith,  Stephen,  and  Manisty,  JJ.,  Pollock,  B.,  and  Coleridge,  C.  J.,  also 
delivered  opinions  against  the  conviction.  Mathew  and  Granthasi,  JJ.,  and 
Huddleston,  B.,  agreed.  Field,  J.,  also  delivered  an  opinion  supporting  the  con- 
viction, and  Day  and  Charles,  JJ.,  agreed.  See,  contra,  Keg.  v.  Bennett,  i  F.  Si  F. 
1105;  Reg.  v.  Sinclair,  13  Cox  C.  C.  28.  — Ed. 


li 


^ 


262 


REGINA   V.    BAKKOW. 


[CHAPo  IV. 


V 


i 


^  ^ 

Ir 


lin,  1  Den.  C.  C.   89.     Reg.  v.  Fletcher,  8  Cox  C.  C.  131,   was  also 
referred  to. 

I  thought,  especially  on  the  authority  of  the  judgment  delivered  by 
Lord  Campbell  in  Reg.  v.  Fletcher,  8  Cox  C.  C.  131,  that  the  case 
was  made  out,  inasmuch  as  it  was  sufficient  that  the  act  was  done  by 
force  and  without  consent  before  or  afterwards ;  that  the  act  itself, 
coupled  with  the  pushing  aside  the  child,  amounted  to  force  ;  and  there 
was  certainly  no  consent  before,  and  the  reverse  immediately  after- 
wards ;  but  I  reserved  the  point  for  the  Court  of  Criminal  Appeal. 

No  counsel  appeared  on  either  side. 

BoviLL,  C.  J.  We  have  carefully  considered  the  facts  as  stated  in 
this  case.  It  does  not  appear  that  the  woman,  upon  whom  tlie  offence 
was  alleged  to  have  been  committed,  was  asleep  or  unconscious  at  the 
time  when  the  act  of  connection  commenced.  It  must  be  taken,  there- 
fore, that  the  act  was  done  with  the  consent  of  the  prosecutrix,  though 
that  consent  was  obtained  by  fraud.  It  falls,  therefore,  within  the 
class  of  cases  which  decide  that,  where  consent  is  obtained  by  fraud, 
the  act  done  does  not  amount  to  rape. 

Channell,  B.,  Byles,  Blackburn,  and  Lush,  JJ.,  concurred.^ 

Conviction  quashed. 

1  Now,  rape  being  defined  to  be  sexual  connection  witli  a  woman  without  her 
consent,  or  without  and  therefore  against  her  will,  it  is  essential  to  consider  what  is 
meant  and  intended  by  consent.  Does  it  mean  an  intelligent,  positive  concurrence  of 
the  will  of  the  woman,  or  is  the  negative  absence  of  dissent  sufficient  ?  In  these  sur- 
gical cases  it  is  held  that  the  submission  to  an  act  believed  to  be  a  surgical  operation 
does  not  constitute  couseut  to  a  sexual  connection,  being  of  a  wholly  different  charac- 
ter ;  there  is  no  consensus  quoad  hoc.  In  the  case  of  personation  there  is  no  cons.^'nsHS 
quoad  hanc  personam.  Can  it  be  considered  that  there  is  a  consent  to  the  sexual  con- 
nection, it  being  manifest  that,  had  it  not  been  for  tlie  deceit  or  fraud,  the  woman 
would  not  have  submitted  to  the  act  ?  In  the  cases  of  idiocy,  of  stupor,  or  of  infancy,  it 
is  held  that  there  is  no  legal  consent,  from  the  want  of  an  intelligent  and  discerning  will. 
Can  a  woman,  in  the  case  of  personation,  be  regarded  as  consenting  to  the  act  in  the 
exercise  of  an  intelligent  will  ?  Does  she  consent,  not  knowing  the  real  nature  of  the 
act  1  As  observed  by  Mr.  Curtis,  she  intends  to  consent  to  a  lawful  and  marital  act, 
to  which  it  is  her  duty  to  submit.  But  did  she  consent  to  an  act  of  adultery  ?  Are 
not  the  acts  themselves  wholly  different  in  their  moral  nature  f  The  act  she  per- 
mitted cannot  properly  be  regarded  as  the  real  act  which  took  place.  Therefore  the 
connection  was  done,  in  my  opinion,  without  her  consent,  and  the  crime  of  rape  was 
constituted.  I  therefore  am  of  opinion  that  the  conviction  should  stand  confirmed.— 
May,  C.  J.,  in  Reg  v.  Dee,  15  Cox  C.  C.  579,  587. 

In  accordance  with  the  principal  case,  see  Reg.  v.  Fletcher,  10  Cox  C.  C.  248;  Don 
Moran  v.  People,  25  Mich.  .356  ;  Wyatt  v.  State,  2  Swan,  394.  —  Ed. 


'^)i- 


SECT.    III.]  COMMONWEALTH   V.    STRATTON.  263 

WRIGHT'S   CASE. 

Leicester  Assizes.     1604. 
[Reported  Co.  Lit.  127  a.] 

In  ni}'  circuit  in  anno  1  Jacobi  reyis,  in  the  county  of  Leicester,  one 
Wright,  a  young,  strong,  and  lustie  rogue,  to  make  liimselfe  impotent, 
thereby  to  have  tlie  more  colour  to  bcgge  or  to  be  relieved  without  put» 
ting  himselfe  to  any  labour,  caused  his  companion  to  strike  off  his  left 
hand ;  and  both  of  them  were  indicted,  fined,  and  ransomed  there- 
fore, and  that  by  the  opinion  of  the  rest  of  the  justices  for  the  cause 
aforesaid. 


COMMONWEALTH   v.   STRATTON. 
Supreme  Judicial  Court  of  Massachusetts.     1873. 

{Reported  114  Massachusetts,  303.] 

Indictments,  each  charging  that  the  defendant,  upon  a  certain  young 
woman  in  the  indictment  named,  made  an  assault  and  administered  to 
her  a  large  quantity  of  cantharides,  "  the  same  being  .  .  .  a  deleterious 
and  destructive  drug,"  with  intent  to  injure  her  health,  whereby  she 
became  sick,  and  her  life  was  despaired  of.  Both  cases  were  tried 
together. 

It  appeared  at  the  trial  in  the  Superior  Court,  before  Devens,  J., 
that  the  defendant,  in  company  with  another  young  man,  called  upon 
the  3'oung  women  in  the  indictments  named,  and  during  the  call  offered 
them  some  figs,  which  they  ate,  they  having  no  reason  to  suppose  that 
the  figs  contained  any  foreign  substance ;  that  a  few  hours  after,  both 
3'oung  women  were  taken  sick,  and  suffered  pain  for  some  hours  ;  that 
the  defendant  and  his  companion  had  put  into  the  figs  something  they 
had  procured  by  the  name  of  "love  powders,"  which  was  represented 
by  the  person  of  whom  they  got  it  to  be  perfectly  harmless. 

There  was  evidence  that  one  of  the  ingredients  of  these  powders  was 
cantharides,  and  that  this  would  tend  to  produce  sickness  like  that 
which  the  young  women  suffered. 

The  Court  instructed  the  jury  that  if  it  was  shown  beyond  a  reason- 
able doubt  "  that  the  defendant  delivered  to  the  women  a  harmless  arti- 
cle of  food,  as  figs,  to  be  eaten  by  them,  he  well  knowing  that  a  foreign 
substance  or  drug  was  contained  therein,  and  concealing  the  fact,  of 
which  he  knew  the  women  to  be  ignorant,  that  such  foreign  substance 
or  drug  was  contained  therein,  and  the  women  eating  thereof  by  the  in- 
vitation of  the  defendant  were  injured  in  health  by  the  deleterious  char- 
acter of  the  foreign  substance  or  drug  therein  contained,  the  defendant 
should  be  found  guilty  of  an  assault  upon  them,  and  this,  although  he 
did  not  know  the  foreign  substance  or  drug  was  deleterious  to  health, 
had  been  assured  that  it  was  not,  and  intended  only  to  try  its  effect 
upon  them,  it  having  been  procured  by  him  under  the  name  of  a  '  love 


264  COMMONWEALTH   V.   STRATTON.  [CHAP.  IV. 

powder,'  and  he  being  ignorant  of  its  qualities  or  of  the  effects  to  be 

expected  from  it."  ,        „       .      ,  ^^  ■  u 

The  jury  found  the  defendant  guilty  of  a  simple  assault  m  each  case, 

and  he  alleged  exceptions. 

W.  Colburn,  for  the  defendant. 

C.  R.  Train,  Attorney-General,  for  the  Commonwealth. 

Wells,  J.  All  the  judges  concur  that  the  evidence  introduced  at 
the  trial  would  warrant  a  conviction  of  assault  and  battery  or  for  a  sim- 
ple assault,  which  it  includes  ;  and  in  the  opinion  of  a  majority  of  the 
court,  the  instructions  given  required  the  jury  to  find  all  that  was  es- 
sential to  constitute  the  offence  of  assault  and  battery. 

The  jury  must  have  found  a  physical  injury  inflicted  upon  another 
person  by  a  voluntary  act  of  the  defendant  directed  toward  her,  which 
was  without  justification  and  unlawful.  Although  the  defendant  was 
ignorant  of  the  qualities  of  the  drug  he  administered  and  of  the  effects 
to  be  expected  from  it,  and  had  been  assured  and  believed  that  it  was 
not  deleterious  to  health,  yet  he  kpew  it  was  not  ordinary  food,  that 
the  girl  was  deceived  into  taking  it,  and  he  intended  that  she  should 
be  i'liduced  to  take  it  without  her  conscious  consent,  by  the  deceit 
which  he  practised  upon  her.  It  is  to  be  inferred  from  the  statement 
of  the  case  that  he  expected  that  it  would  produce  some  effect.  In  the 
most  favorable  aspect  of  the  facts  for  the  defendant  he  administered 
to  the  girl,  without  her  consent  and  by  deceit,  a  drug  or  "  foreign  sub- 
stance," of  the  probable  effect  of  which  he  was  ignorant,  with  the  ex- 
press intent  and  purpose  "  to  try  the  effect  of  it  upon  "  her.  This  in 
itself  was  unlawful,  and  he  must  be  held  responsible  for  whatever  effect 
it  produced.  Being  an  unlawful  interference  with  the  personal  rights 
of  another,  calculated  to  result  and  in  fact  resulting  in  physical  injury, 
the  criminal  intent  is  to  be  inferred  from  the  nature  of  the  act  and  its 
actual  results.  3  Bl.  Com.  120;  Rex  v.  Long,  4  C.  &  P.  398,  407, 
note.  The  deceit,  by  means  of  which  the  girl  was  induced  to  take  the 
drug,  was  a  fraud  upon  her  will,  equivalent  to  force  in  oveipowering 
it.  Commonwealth  v.  Burke,  105  Mass.  376 ;  Regina  i'.  Lock,  12 
Cox  C.  C.  244;  Regina  v.  Sinclair,  13  Cox  C.  C.  28. 

Although  force  and  violence  are  included  in  all  definitions  of  assault, 
or  assault  and  battery,  yet  where  there  is  physical  injury  to  another 
person,  it  is  sufficient  that  the  cause  is  set  in  motion  by  the  defendant, 
or  that  the  person  is  subjected  to  its  operation  by  means  of  any  act  or 
control  which  the  defendant  exerts.  In  3  Chit.  Crim.  Law,  799,  is  a 
count,  at  common  law,  for  an  assault  with  drugs.  For  other  instances 
of  assault  and  battery  without  actual  violence  directed  against  the  per- 
son assaulted,  see  1  Gabbett's  Crim.  Law,  82  ;  Rose.  Crim.  Ev.  (8th 
ed.)  296 ;  3  Bl.  Com.  120  and  notes ;  2  Greenl.  Ev.  §  84. 

If  one  should  hand  an  explosive  substance  to  another  and  induce 
him  to  take  it  by  misrepresenting  or  concealing  its  dangerous  qualities, 
and  the  other,  ignorant  of  its  character,  should  receive  it  and  cause  it 


I 


SECT,  III.J 


KEGINA    V.   MARTIN. 


265 


to  explode  in  his  pocket  or  band,  and  should  be  injured  b}-  it,  the  offend- 
ing party  would  be  guiltj'  of  a  batter^-,  and  that  would  necessarily'  in- 
clude an  assault ;  although  he  might  not  be  guilty  even  of  an  assault, 
if  the  substance  failed  to  explode  or  failed  to  cause  an\-  injur\'.  It 
would  be  the  same  if  it  exploded  in  his  mouth  or  stomach.  If  that 
which  causes  the  injury  is  set  in  motion  by  the  wrongful  act  of  the  de- 
fendant, it  cannot  be  material  whether  it  acts  upon  the  person  injured 
externally  or  internally',  b}'  mechanical  or  chemical  force. 

In  Regina  v.  Button,  8  C.  &  P.  660,  one  who  put  Spanish  flies  into 
coffee  to  be  drunk  b}'  another  was  convicted  of  an  assault  upon  the  per- 
son who  took  it,  although  it  was  done  "  only  for  a  lark."  This  decision 
is  said  to  have  been  overruled  in  England.  Regina  v.  Dilworth,  2 
Mood.  &  Rob.  531  ;  The  Queen  v.  Walkden,  1  Cox  C.  C.  282;  Re- 
gina V.  Hanson,  2  C.  &  K.  912.  In  the  view  of  the  majorit}-  of  the 
court,  the  last  onlv  of  these  three  cases  was  a  direct  adjudication,  and 
that  entirely  upon  the  authority  of  mere  dicta  in  the  other  two  and 
without  any  satisfactor}-  reasoning  or  statement  of  grounds  ;  and  the 
earlier  decision  in  Regina  v.  Button  is  more  consistent  with  general 
principles,  and  the  better  law.^  Exceptions  overruled. 


1 5-y 


^ 


REGINA  V.  MARTIN. 
Crown  Case  Reserved.     1840. 

[Reported  2  Moody,  123.] 

The  prisoner  was  tried  before  Mr.  Baron  Alderson  upon  an  indict- 
ment, the  first  count  of  which  charged  him  with  carnally  knowing  and 
abusing  Esther  Ricketts,  a  girl  above  ten  and  under  twelve  years  of  age. 

The  second  count  was  for  an  assault  on  Esther  Ricketts  with  intent 
carnall}'  to  know  and  abuse  her.  The  third  count  was  for  a  common 
assault. 

Godson,  for  the  prisoner,  contended  that,  supposing  the  fact  to  have 
been  done  by  the  consent  of  the  prosecutrix,  no  conviction  could  take 
place  on  the  second  and  third  counts. 

The  learned  judge  left  the  question  to  the  jury,  who  found  the  fact 
that  the  prosecutrix  had  consented  ;  and  he  then  directed  a  verdict  of 
guilty  on  the  ground  that  the  prosecutrix  was  bylaw  incapable  of  giving 
her  consent  to  what  would  be  a  misdemeanor  by  statute. 

But   as  Godson  stated  that  the  point  was  doubtful   and   had  been 
otherwise  decided  before,  the  learned  judge  respited  the  judgment. 
1  Ace.  Carr  v.  State  (Ind.),  34  N.  E,  533.  —  Ed. 


266 


KEGINA   V.    BRADSHAW.  [CHAP.  IV. 


It  appeared  to  the  learned  judge  clear  that  if  the  indictment  had 
eliarged  an  attempt  to  commit  the  statutable  misdemeanor,  the  pris- 
oner°would  clearly  have  been  liable  to  conviction  ;  but  the  learned  judge 
was  not  free  from  doubt  as  to  the  present  case,  in  which  an  assault  was 

charged. 

This  case  was  considered  at  a  meeting  of  the  judges  in  Hilary  term, 
1840,  and  they  all  thought  that  the  proper  charge  was  of  a  misdemeanor 
in  attempting  to  commit  a  statutable  oftence,  and  that  the  conviction 
was  wrong.^ 


REGINA  V.  BRADSHAW. 

Leicester  Assizes.     1878. 
[Reported  14  Cox  C.  C.  83.] 

William  Bradshaw  was  indicted  for  the  manslaughter  of  Herbert 
Dockerty,  at  Ashby-de-la-Zouch,  on  the  28th  day  of  February. 

The  deceased  met  with  the  injury  which  caused  his  death  on  the 
occasion  of  a  football  match  played  between  the  football  clubs  of  Ashby- 
de-la-Zouch  and  Coalville,  in  which  the  deceased  was  a  player  on  the 
Ashby  side,  and  the  prisoner  was  a  player  on  the  Coalville  side.  The 
game  was  played  according  to  certain  rules  known  as  the  "Association 
Rules."  ^  After  the  game  had  proceeded  about  a  quarter  of  an  hour, 
the  deceased  was  "  dribbling"  the  ball  along  the  side  of  the  ground  in 
the  direction  of  the  Coalville  goal,  when  he  was  met  by  the  prisoner, 
who  was  running  towards  him  to  get  the  ball  from  him  or  prevent  its 
further  progress  ;  both  players  were  running  at  considerable  speed  ;  on 
approaching  each  other,  the  deceased  kicked  the  ball  beyond  the  pris- 
oner, and  the  prisoner,  by  way  of  "  charging"  the  deceased,  jumped  in 
the  air  and  struck  him  with  his  knee  in  the  stomach.  The  two  met, 
not  directly  but  at  an  angle,  and  both  fell.  The  prisoner  got  up  un- 
hurt, but  the  deceased  rose  with  difficulty  and  was  led  from  the  ground. 
He  died  next  day  after  considerable  sutfering,  the  cause  of  death  being 
a  rupture  of  the  intestines. 

1  "  It  is  a  presumption  of  law  that  a  girl  under  ten  years  of  age  is  iucapable  of  con- 
senting to  the  offence  of  rape  (Pen.  Code,  .see.  261);  and  as  such  an  offence  includes  an 
attempt  to  commit  it,  accompanied  by  such  force  and  violence  upon  the  person  as  con- 
stitutes an  assault,  a  girl  under  ten  years  of  age  is  incapable  in  law  of  consenting  to 
the  assault  in  connection  with  the  attempt  to  commit  the  offence.  Whether  the  girl 
in  fact  consented  or  resisted  is  therefore  immaterial.  Being  incapable  of  consenting  to 
an  act  of  carnal  intercourse,  it  was  criminal  for  the  defendant  to  make  an  assault  upon 
her  to  commit  such  an  act."     McKee,  J.,  in  People  v.  Gordon,  70  Cal.  467,  468,  —  Ed. 

2  Etherington  Smith,  in  opening  the  case  for  the  prosecution,  was  proceeding  to  ex- 
plain the  "Association  Rules"  to  the  jury,  and  to  comment  upon  the  fact  of  whether 
the  prisoner  was  or  was  not  acting  within  those  rules,  when  Bramwell,  L.  J.,  iiiter- 
posed,  saying,  "  Whether  within  the  rules  or  not  the  prisoner  would  be  guilty  of  man- 
slaughter if  while  committing  an  unlawful  act  he  caused  the  death  of  the  deceased." 


SECT.  III.]  REGINA   V.   BRADSHAW.  267 

Witnesses  were  called  from  both  teams  whose  evidence  differed  as  to 
some  particulars,  those  most  unfavorable  to  the  prisoner  alleging  that 
the  ball  had  been  kicked  b}'  the  deceased  and  had  passed  the  prisoner 
before  he  charged  ;  that  the  prisoner  had  therefore  no  right  to  charge 
at  the  time  he  did  ;  that  the  chai'ge  was  contrary  to  the  rules  and  prac- 
tice of  the  game  and  made  in  an  unfair  manner,  with  the  knees  protrud- 
ing ;  while  those  who  were  more  favorable  to  the  prisoner  stated  thai 
the  kick  by  the  deceased  and  the  charge  by  the  prisoner  were  simultan- 
eous, and  that  the  prisoner  had  therefore,  according  to  the  rules  and 
practice  of  the  game,  a  right  to  make  the  charge,  though  these  wit- 
nesses admitted  that  to  charge  by  jumping  with  the  knee  protruding 
■was  unfair.  One  of  the  umpires  of  the  game  stated  that  in  his  opinion 
nothing  unfair  had  been  done.^ 

BuAMWELL,  L.  J.,  in  summing  up  the  case  to  the  jury,  said  :  "  The 
question  for  you  to  decide  is  whether  the  death  of  the  deceased  was 
caused  by  the  unlawful  act  of  the  prisoner.  There  is  no  doubt  that  the 
prisoner's  act  caused  the  death,  and  the  question  is  whether  that  act 
was  unlawful.  No  rules  or  practice  of  any  game  whatever  can  make 
that  lawful  which  is  unlawful  by  the  law  of  the  land-;  and  the  law  of 
the  land  says  you  shall  not  do  that  which  is  likely  to  cause  the  death  of 
another.  For  instance,  no  persons  can  by  agreement  go  out  to  fight 
with  deadly  weapons,  doing  by  agreement  what  the  law  says  shall  not 
be  done,  and  thus  shelter  themselves  from  the  consequences  of  their 
acts.  Therefore,  in  one  wa}-  you  need  not  concern  yourscilves  with  the 
rules  of  football.  But,  on  the  other  hand,  if  a  man  is  playing  accord- 
ing to  the  rules  and  practice  of  the  game  and  not  going  beyond  it,  it 
may  be  reasonable  to  infer  that  he  is  not  actuated  by  any  malicious 
motive  or  intention,  and  that  he  is  not  acting  in  a  manner  which  he 
knows  will  be  likely  to  be  productive  of  death  or  injury.  But,  inde- 
pendent of  the  rules,  if  the  prisoner  intended  to  cause  serious  hurt  to 
the  deceased,  or  if  he  knew  that  in  charging  as  he  did  he  might  produce 
serious  injury,  and  was  indifferent  and  reckless  as  to  whether  he  would 
produce  serious  injury  or  not,  then  the  act  would  be  unlawful.  In 
either  case  he  would  be  guilty  of  a  criminal  act,  and  you  must  find  him 
guilty ;  if  you  are  of  a  contrary  opinion  you  will  acquit  him."  His 
lordship  carefully  reviewed  the  evidence,  stating  that  no  doubt  the 
game  was,  in  any^c^rcumstances,  a  rough  one ;  but  he^was  unwilling  to 
decry  the  manly  sports  of  this  c6irhlry7"an  of  which  were  no  doubt 
attended  with  more  or  less  danger.  Verdict,  Not  guilty. 

1  Arguments  of  counsel  are  omitted. 


268 


COMMONWEALTH   V.    COLLBEEG.  [CHAP.  IV. 


COMMONWEALTH  v.  COLLBERG. 
Supreme  Judicial  Court  of  Massachusetts.     1875. 

[Reported  119  Mass.  350.] 

Two  indictments:  one  for  an  assault  and  battery  by  Benjamin  F. 
CoUberg  upon  Charles  E.  Phenix  ;  and  the  other  for  an  assault  and  bat- 
tery by'^Phenix  upon  Collberg.  Both  indictments  were  founded  upon 
and  supported  by  the  same  evidence. 

At  the  trial  of  the  two  indictments  in  the  Superior  Court  before 
Lord,  J.,  there  was  evidence  for  the  Commonwealth  tending  to  show 
that  about  six  o'clock  on  the  evening  of  Sunday,  August  22,  1875, 
Collberg  and  Phenix  met  near  the  station  of  the  Boston  and  Maine 
Railroad  in  Maiden  and  had  a  slight  altercation,  as  a  result  of  which 
Collberg  bantered  Phenix  to  fight  him  ;  that  Phenix  declined  on  the 
ground  that  he  did  not  want  to  fight  with  his  best  clothes  on,  but  said 
that  if  Collberg  would  wait  until  be  could  go  home  and  change  his 
clothes,  they  would  go  to  some  place  outside  of  the  town  and  settle  it ; 
that  thereupon  Phenix  did  go  home  and  change  his  clothes,  and  he  and 
Collberg  met  at  a  retired  place,  remote  from  habitations  and  thorough- 
f:\res,  and  fought  with  each  other  in  the  presence  of  some  fifty  or  seventy- 
five  persons  who  had  gathered  there,  and  that  the  fight  continued  until 
Collberg  said  that  he  had  enough,  when  it  ceased  and  the  parties  went 
home  ;  that  the  next  day  Collberg  and  Phenix  were  a  good  deal  bruised 
and  looked  as  if  they  had  been  fighting. 

The  defendants  testified  that  they  had  been  acquainted  with  each 
other  for  a  period  of  five  or  six  years,  during  which  time  they  had 
always  been  on  the  most  friendly  terms,  and  were  so  at  the  time  of  the 
act  complained  of,  and  subsequently ;  that  during  the  period  of  their 
acquaintance  they  had  engaged  at  various  times  in  wrestling-matches 
with  each  other,  all  of  which  had  been  carried  on  in  a  friendly  spirit 
and  without  engendering  any  ill  feeling  between  them  ;  that  on  the  day 
mentioned  in  the  indictment  they  met  towards  evening  near  the  station 
of  the  Boston  and  Maine  Railroad  in  Maiden,  where  they  had  some  talk 
about  a  recent  wrestling-match  that  had  taken  place  in  New  York,  and 
growing  out  of  this,  as  to  previous  contests  of  this  character  which  had 
taken  place  between  them  ;  that  after  some  talk  about  their  matches, 
they  agreed  to  go  then  to  some  place  where  the}'  should  not  disturb  any 
one  and  have  another  trial  of  their  agilit}-  and  strength  in  this  direction  ; 
that  they  shortly  afterwards  went  to  such  a  place  and  engaged  in  a 
"  run  and  catch  "  wrestle  with  each  other,  without  any  anger  or  malice, 
or  any  intention  to  do  each  other  bodil}-  harm ;  that  any  injuries  which 
they  inflicted  upon  each  other  were  inflicted  accidentally  and  by  mutual 
consent  while  voluntarily  continuing  in  such  contest. 

There  was  no  evidence  of  any  uproar  or  outcries  when  the  contest 


I 


SECT.    III.]  COTVIMONWEALTH   V.   COLLBF.RG.  269 

took  place,  or  that  any  one  was  disturbed  thereby,  except  that  the  par- 
ties were  fighting  in  presence  of  a  crowd  of  from  fifty  to  one  hundred 
persons  who  had  collected  together.  After  the  evidence  was  all  in,  the 
defendants  asked  the  judge  to  instruct  the  jury  as  follows  :  — 

"  If  the  jur}'  are  satisfied  that  whatever  acts  and  things  the  defend- 
ants did  to  each  other  the}'  did  by  mutual  consent,  and  that  the  struggle 
between  them  was  an  amicable  contest  voluntarily  continued  on  both 
sides  without  anger  or  malice,  and  simply  for  the  purpose  of  testing 
their  relative  agility  and  strength,  then  there  is  no  assault  and  battery, 
and  the  defendants  must  be  acquitted." 

The  judge  declined  to  give  ;Lhis  instruction,  but  instructed  the  jury 
upon  this  branch  of  the  case  in  su4)stance  as  follows  :  ''  That  if  the  de- 
fendants were  simply  engaged  in  a  wrestling  match,  that  being  a  lawful 
sport,  they  could  not  be  convicted  of  an  assault  and  battery ;  but  if  by 
mutual  agreement  between  themselves,  previously  made,  they  went  to 
a  retired  spot  for  the  purpose  of  fighting  with  each  otlier  and  for  the 
purpose  of  doing  each  other  physical  injury  by  fighting,  with  a  view  to 
ascertain  by  a  trial  of  their  skill  in  fighting  which  was  the  best  man, 
and  there  engaged  in  a  fight,  each  endeavoring  to  do  and  actually  doing 
all  the  physical  injury  in  his  power  to  the  other,  and  if,  in  such  contest, 
each  did  strike  the  other  with  his  fist  for  the  purpose  of  injuring  him, 
each  may  properly  be  convicted  of  assault  and  battery  upon  the  other, 
although  the  whole  was  done  by  mutual  arrangement,  agreement,  and 
consent,  and  without  anger  on  the  part  of  either  against  the  other." 

To  this  instruction,  and  to  the  refusal  of  the  judge  to  give  the  in- 
struction prayed  for,  the  defendaiits^a]^^ 

G.  S.  Scammon,  for  the  defendants. 

W.  C.  Loring  {C.  R.  Train,  Attorney- General,  with  him),  for  the 
Commonwealth. 

Endicott,  J.  It  appears  by  the  bill  of  exceptions  that  the  parties 
by  mutual  agreement  went  out  to  fight  one  another  in  a  retired  place, 
and  did  fight  in  the  presence  of  from  fifty  to  one  hundred  persons. 
Both  were  bruised  in  the  encounter,  and  the  fight  continued  until  one 
said  that  he  was  satisfied.  There  was  also  evidence  that  the  parties 
went  out  to  engage  in  and  did  engage  in  a  "  run  and  catch  "  wrestling 
match.  We  are  of  opinion  that  the  instructions  given  by  the  presiding 
judge  contained  a  full  and  accurate  statement  of  the  law. 

The  common  law  recognizes  as  not  necessarily  unlawful  certain 
manly  sports  calculated  to  give  bodily  strength,  skill,  and  activity,  and 
''  to  fit  people  for  defence,  public  as  well  as  personal,  in  time  of  need." 
Playing  at  cudgels  or  foils,  or  wrestling  by  consent,  there  being  no 
motive  to  do  bodily  harm  on  either  side,  are  said  to  be  exercises  of 
this  description.  Fost.  C.  L.  259,  260;  Com.  Dig.  Plead.  3  ni.  18. 
But  prize-fighting,  boxing-matches,  and  encounters  of  that  kind  serve 
no  useful  purpose,  tend  to  breaches  of  the  peace,  and  are  unlawful 
even  when  entered  into  by  agreement  and  without  anger  or  mutual  ill- 
will.     Fost.  C.  L.  260 ;  2  Greenl.  on  Ev.  §  85  ;  1  Stephens  N.  P.  211. 


270  EEX    V.    STRATTON.  [CHAP.  IV. 

If  one  party  license  another  to  beat  him,  such  license  is  void,  because 
it  is  against  the  law.  Matthew  v.  Ollerton,  Comb.  218.  In  an  action 
for  assault  the  defendant  attempted  to  put  in  evidence  that  the  plain- 
tiff and  he  had  boxed  by  consent,  but  it  was  held  no  bar  to  the  action, 
for  boxing  was  unlawful,  and  the  consent  of  the  parties  to  fight  could 
not  excuse  the  injury.  Boulter  v.  Clark,  Bull.  N.  P.  16.  The  same 
rule  was  laid  down  in  Stout  y.  Wren,  1  Hawks  (N.  C),  420,  and  in 
Bell  V.  Hansley,  3  Jones  (N.  C),  131.  In  Adams  v.  Waggoner,  33 
Ind.  531,  the  authorities  are  reviewed,  and  it  was  held  that  it  was  no 
bar  to  an  action  for  assault  that  the  paities  fought  with  each  other  by 
mutual  consent,  but  that  such  consent  may  be  shown  in  mitigation  of 
damages.  See  Logan  v.  Austin,  1  Stew.  (Ala.)  476.  It  was  said  by 
Colerfdge,  J.,  in  Regina  v.  Lewis,  1  C.  &  K.  419,  that  «^no  one  is  justi- 
fied in  striking  another  except  it  be  in  self-defence,  and  it  ought  to  be 
known  that  whenever  two  persons  go  out  to  strike  each  other,  and  do 
so,  each  is  guilty  of  an  assault  ;\r  and  that  it  was  immaterial  who 
strikes  the  first  blow.     See  Rex  v.  Perkins,  4  C.  &  P.  537. 

Two  cases  only  have  been  called  to  our  attention  where  a  difl!"erent 
rule  has  been  declared.  In  Champer  v.  State,  14  Ohio  St.  437,  it  was 
held  that  an  indictment  against  A.  for  an  assault  and  battery  on  B.  was 
not  sustained  by  evidence  that  A.  assaulted  and  beat  B.  in  a  fight  at 
fisticuffs,  by  agreement  between  them.  This  is  the  substance  of  the 
report,  and  the  facts  are  not  disclosed.  No  reasons  are  given  or  cases 
cited  in  support  of  the  proposition,  and  we  cannot  but  regard  it  as 
opposed  to  the  weight  of  authority.  In  State  v.  Beck,  1  Hill  (S.  C), 
363,  the  opinion  contains  statements  of  law  in  which  we  cannot  concur. 

Exceptions  overruled. 


i^X 


SECTION  IV. 

Fault  of  the  Injured  Party. 

((/)    CONTRIBUTOKY    CrIME. 

REX  V.  STRATTON. 
Nisi  Prius.     1809. 

[Reported  1  Camyj&e//,  549  ] 

Indictment  for  a  conspiracy  to  deprive  one  Thompson  of  the  oflfice 
of  secretary  to  the  Philanthropic  Annuity  Society,  and  to  prosecute 


SECT.  IV.]  EEGINA   V.   .  "271 

him,  without  an}'  reasonable  or  probable  cause,  for  obtaining  nione\' 
upon  false  pretences.  It  appeared  that  this  societ}-  is  an  unincorpoi- 
ated  company,  with  transferalile  shares  ;  that  there  was  a  violent  dis- 
pute among  the  subscribers  as  to  the  choice  of  secretar}' ;  that  one 
party,  headed  by  the  defendants,  cashiered  the  prosecutor ;  that  he 
still  went  on  collecting  subscriptions,  and  that  they  indicted  him  for 
obtaining  money  upon  false  pretences,  of  which  he  was  acquitted. 

Lord  Ellenborough.  This  society  was  certainly  illegal.  There- 
fore, to  deprive  an  individual  of  an  office  in  it,  cannot  be  treated  as  an 
injury.  When  the  prosecutor  was  secretary  to  the  society,  instead  of 
having  an  interest  which  the  law  would  protect,  he  was  guilty  of  a 
crime.  In  Dodd's  case,  all  the  judges  of  this  court  were  agreed  upon 
the  illegality  of  these  associations  ;  and  I  understand  there  has  since 
been  a  nonsuit  in  the  Common  Pleas  upon  the  same  ground.  Nor  can 
I  say  that  the  prosecutor  was  indicted  without  reasonable  or  probable 
cause.  I  thought  he  was  not  guilty  of  the  offence  imputed  to  him  ;  be- 
cause it  did  not  appear  that  he  acted  with  a  fraudulent  purpose.  But 
he  did  obtain  the  money  upon  a  false  pretence.  He  pretended  that 
there  was  then  a  real,  legal  society,  to  which  he  was  secretar}- ;  whereas 
no  such  society  existed.     The  defendants  must  all  be  acquitted.^ 


REGINA  V. 


Central  Criminal  Court.    1845. 

[Reported  1  Cox  C.  C.  250.] 

The  defendant  was  indicted  for  uttering  CQunterfeit  coin.  Evidence 
was  adduced  to  show  that  he  had  given  a  counterfeit  sovereign  to  a 
girl  with  whom  he  had  had  intercourse. 

Bodkin,  in  opening  the  case  for  the  prosecution,  referred  to  R.  v. 
Page,  8  C.  &  P.  122,  in  which  Lord  Abinger  ruled  that  the  giving  a 
piece  of  counterfeit  money  away  in  charity  was  not  an  uttering  within  the 
2  Wm.  IV.  c.  34,  §  7,  although  the  person  giving  knew  it  to  be  coun- 
terfeit, as  there  must  be  some  intention  to  defraud.  The  learned 
counsel  contended  that  the  present  case  was  clearly  distinguishable, 
even  supposing  that  to  be  the  law,  and  he  apprehended  that  the  ques- 
tion for  the  jury  would  be,  whether  the  coin  had  been  passed  with  a 
knowledge  of  its  being  counterfeit  and  with  the  intention  of  putting  it 
into  circulation. 

Lord  Denman,  C.  J.  (in  summing  up).  As  to  the  law  of  this  case, 
m}'  learned  brother  (Coltman,  J.)  and  myself  are  clearly  of  opinion 
that  if  the  defendant  gave  the  coin  to  the  woman  under  the  circum- 
stances stated,  knowing  it  to  be  counterfeit,  he  is  guilt3'  of  the  offence 

1  See  Rex  v.  Beacall,  1  C.  &  P.  454;  Reg.  v.  Hunt,  8  C.  &  P.  642;  Com.  v.  Smith, 
129  Mass.  104. —  Ed. 


272  REGINA  V.   HUDSON.  [CHAP.  IV. 

chai-ed.  We  do  not  consider  the  decision  of  Lord  Abinger  to  be  in 
point;  that  was  a  case  of  charity;  at  the  same  time  we  have  great 
donbts  as  to  the  correctness  of  that  ruling,  and  if  a  similar  case  were  to 
arise  we  should  reserve  the  point.  ^ 


REGINA  V.  HUDSON. 
Crown  Case  Reserved.     1860. 

[Reported  8  Cox  C.  C.  305  ] 

Case  reserved  for  the  opinion  of  this  court,  by  J.  B.  Maule,  Esq., 
barrister-at-law,  sitting  as  Deputy  for  the  Recorder  of  York. 

At  the  Epiphanv  Sessions,  1860,  held  for  the  city  of  York,  the  pris- 
oners were  jointly  indicted  and  tried  before  me  upon  an  indictment,  the 
two  first  counts  of  which  charged  them  with  an  offence  under  the  8  & 

9  Vict.  c.  109. 
Third  count.    The  prisoners  were  charged  with  a  conspiracy  to  cheat 

in  the  following  form  :  — 

"  That  they  unlawfully  and  fraudulently  did  combine,  confederate, 
and  conspire  together  with  divers  other  persons  to  the  jurors  unknown, 
by  divers  unlawful  and  fraudulent  devices  and  contrivances,  and  by 
divers  false  pretences,  unlawfully  to  obtain  from  the  said  A.  Rhodes 
the  sum  of  £2  10s.  of  the  money  of  the  said  A.  Rhodes,  and  unlaw- 
fully to  cheat  and  defraud  the  said  A.  Rhodes  of  the  same,  against  the 

peace,  etc."^ 

Tlie  evidence  disclosed  that  the  three  prisoners  were  in  a  public  house 
together  with  the  prosecutor,  Abraham  Rhodes,  and  that  in  concert 
wi°h  the  other  two  prisoners,  the  prisoner  John  Dewhirst  placed  a  pen- 
case  on  the  table  in  the  room  where  they  were  assembled  and  left  the 
room  to  get  writing-paper.  Whilst  he  was  absent  the  other  two  pris- 
oners, Samuel  Hudson  and  John  Smith,  were  the  only  persons  left 
drinking  with  the  prosecutor ;  and  Hudson  then  took  up  the  pen-case 
and  took  out  the  pen  from  it,  placing  a  pin  in  the  place  of  it,  and  put 
the  pen  that  he  had  taken  out  under  the  bottom  of  the  prosecutor's 
drinking-glass  ;  and  Hudson  then  proposed  to  the  prosecutor  to  bet  the 
prisoner  Dewhirst  when  he  returned  that  there  was  no  pen  in  the  pen- 
case.  The  prosecutor  was  induced  by  Hudson  and  Smith  to  stake  50s. 
in  a  bet  with  Dewhirst  upon  his  returning  into  the  room,  that  there  was 
no  pen  in  the  pen-case ;  which  money  the  prosecutor  placed  on  the 
table,  and  Hudson  snatched  up  to  hold.    The  pen-case  was  then  turned 

1  Ace.  Com.  V.  Woodbury,  Thach.  (Mass.)  47. 

2  Contra,  People  v.  Wilson,  6  Johns.  320.  —  Ed. 


SECT.  IV.]  KEGINA   V.   HUDSON.  273 

up  into  the  prosecutor's  hand,  and  another  pen  with  the  pin  fell  into 
his  hand,  and  then  the  prisoners  took  his  money. 

Upon  this  evidence  it  was  objected,  on  behalf  of  the  prisoners,  that 
no  offence  within  the  meaning  of  the  8  &  9  Vict.  c.  109,  was  proved  by 
it,  and  that  the  facts  proved  in  evidence  did  not  amount  to  the  oflfence 
charged  in  the  third  count. 

I  thought  the  objection  well  founded  as  to  the  offence  under  the  8  & 
9  Vict.  c.  109,  but  held  that  the  facts  in  evidence  amounted  to  the 
offence  charged  in  the  third  count,  and  directed  the  jury  to  return  a 
separate  verdict  on  each  count,  a  case  having  been  asked  for  by  the 
prisoners'  counsel,  for  the  consideration  of  the  Court  for  Crown  Cases 
Reserved. 

The  jury  returned  a  verdict  of  guilty  on  each  of  the  three  counts. 

The  prisoners  were  sentenced  to  eight  months'  imprisonment,  and 
committed  to  prison  for  want  of  sufficient  sureties. 

If  the  court  for  the  consideration  of^Crown  Cases  Reserved  shall  be 
of  opinion  that  the  above  facts  in  evidence  constituted  in  law  any  one 
of  the  offences  charged  in  the  indictment,  and  was  evidence  to  go  to  the 
jury  in  support  thereof,  the  verdict  is  to  stand  for  such  of  the  counts  in 
which  the  offence  is  laid  to  which  the  evidence  applies. 

Price,  for  the  prisoners.  As  to  the  third  count,  to  sustain  that  the 
evidence  should  have  shown  such  a  false  pretence  as  per  se  would  con- 
stitute the  ordinary  misdemeanor  of  false  pretences. 

Pollock,  C.  B.     Why  so?     This  is  a  count  for  couspirac}'  to  cheat. 

Price.     Yes,  by  false  pretences. 

Channell,  B.  If  the  count  had  said  merely  to  conspire,  and  had 
omitted  the  words  "  by  false  pretences,"  it  would  have  been  good. 

Blackburn,  J.  Here  the  piisoners  cheated  the  prosecutor  into  the 
belief  that  he  was  going  to  cheat,  when  in  fact  he  was  to  be  cheated. 

Price.  This  is  a  mere  private  deceit,  not  concerning  the  public,  which 
the  criminal  law  does  not  regard,  but  is  a  deceit  against  which  common 
prudence  might  be  guarded.  There  is  no  evidence  of  any  indictable 
combination  to  cheat  and  defraud. 

Channell,  B.  If  two  persons  conspire  to  puff  up  the  qualities  of  a 
horse  and  thereby  secure  an  exorbitant  price  for  it,  that  is  a  criminal 
offence. 

Price.  That  affects  the  public.  At  the  trial  the  present  case  was 
likened  to  that  of  Rex  v.  Barnard,  7  C.  &  P.  784,  where  a  person  at 
Oxford,  who  was  not  a  member  of  the  university,  went  for  the  purpose 
of  fraud,  wearing  a  commoner's  gown  and  cap,  and  obtained  goods. 
This  was  held  a  sufficient  false  pretence.  The  present  case,  however, 
was  nothing  more  than  a  bet  on  a  question  of  fact,  which  the  prosecu- 
tor might  have  satisfied  himself  of  by  looking  at  the  pencil-case.  It  is 
more  like  an  ordinary  conjuring-trick.  Besides,  here  the  prosecutor 
himself  intended  to  cheat  one  of  the  prisoners  by  the  bet. 

No  counsel  appeared  for  the  prosecution. 

18 


274  COMMONWEALTH   V.  MORRILL.  [CHAP.  IV. 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  conviction  on  the 
third  count  is  good  and  ought  to  be  supported.  The  count  is  in  the 
usual  form,  and  it  is  not  necessary  that  the  words  "false  pretences" 
stated  in  it  should  be  understood  in  the  technical  sense  contended  for 
by  Mr.  Price.  There  is  abundant  evidence  of  a  conspiracy  by  the  pris- 
oners to  cheat  the  prosecutor,  and  though  one  of  the  ingredients  in  the 
case  is  that  the  prosecutor  himself  intended  to  cheat  one  of  the  prisoners, 
that  does  not  prevent  the  prisoners  from  liability  to  be  prosecuted  upon 
this  indictment.  Conviction  affirmed. 


COMMONWEALTH  v.  MORRILL. 
Supreme  Judicial  Court  of  Massachusetts.     1851. 

[Reported  8  dishing,  571.] 

.  This  was  an  indictment  which  alleged  that  the  defendants,  Samuel 
G.  Morrill  and  John  M.  Hodgdon,  on  the  17th  of  September,  1850,  at 
Newburyport,  '•  devising  and  intending  one  James  Lynch  by  false  pre- 
tences to  cheat  and  defraud  of  his  goods,  did  then  and  there  unlawfully, 
knowingly,  and  designedly  falsely  pretend  and  represent  to  said  Lynch 
that  a  certain  watch  which  said  Morrill  then  and  there  had,  and  which 
said  Morrill  and  Hodgdon  then  and  there  proposed  and  offered  to  ex- 
change with  said  Lynch  for  two  other  watches  belonging  to  said  Lynch, 
was  a  gold  watch  of  eighteen  carats  fine  and  was  of  great  value,  to  wit, 
of  the  value  of  eighty-  dollars  ;  and  the  said  Lynch,  then  and  there  be- 
lieving the  said  false  pretences  and  representations  so  made  as  afore- 
said by  said  Morrill  and  Hodgdon,  and  being  deceived  thereby,  was 
induced  by  reason  of  the  false  pretences  and  representations  so  made 
as  aforesaid  to  deliver,  and  did  then  and  there  deliver,  to  the  said  Mor- 
rill the  two  watches  aforesaid,  belonging  to  said  Lynch,  and  of  the  value 
of  twenty  dollars,  and  the  said  Morrill  and  Hodgdon  did  then  and  there 
receive  and  obtain  the  two  said  watches,  the  property  of  said  Lynch, 
as  aforesaid,  in  exchange  for  the  said  watch,  so  represented  f,s  a  gold 
watch  as  aforesaid,  by  means  of  the  false  pretences  and  representa- 
tions aforesaid,  and  with  intent  to  cheat  and  defraud  the  said  Lynch  of 
his  said  two  watches,  as  aforesaid  ;  whereas  in  truth  and  in  fact  said 
watch  so  represented  by  said  Morrill  and  Hodgdon  as  a  gold  watch, 
eighteen  carats  fine,  and  of  the  value  of  eighty  dollars,  was  not  then 
and  there  a  gold  watch,  and  was  not  then  and  there  eighteen  carats 
fine,  and  was  then  and  there  of  trifling  value,"  etc. 

At  the  trial  in  the  Court  of  Common  Pleas,  before  Hoar,  J.,  it  ap- 
peared in  evidence  that  Lynch  represented  his  watches,  one  of  which 
was  of  silver  and  the  other  of  yellow  metal,  as  worth  fifty  dollars  ;  and 
on  the  testimony  of  the  only  witness  for  the  Commonwealth  who  was  a 
judge  of  the  value  of  watches,  thej  were  worth  not  exceeding  fifteen 


SECT.  IV.]  COMMONWEALTH   V.   MORRILL.  275 

dollars.  Lynch  testified  that  his  silver  watch  cost  him  fifteen  dollars  ; 
that  he  received  the  other  in  exchange  for  two,  which  cost  him  respec- 
tively seven  dollars  and  thirteen  dollars  ;  and  that  he  believed  it  to  be 
worth  thirty  dollars. 

The  defendant  requested  the  presiding  judge  to  instruct  the  jury  that 
if  Lynch's  watches  were  not  worth  fifty  dollars,  or  some  considerable 
part  of  that  sura,  but  were  of  merely  trifling  value,  this  indictment 
could  not  be  maintained.  But  the  judge  instructed  the  jury  that  if  they 
supposed  that  each  of  the  parties  was  endeavoring  to  defraud  the  other, 
-    .-  and  Lynch  knew  that  his  watches  were  of  httle  value,  the  jury  should 

not  convict  the  defendants  merely  because  they  had  the  best  of  the  bar- 
gam  ;  but  that  if  the  defendants  made  the  false  representations  charged 
in  the  indictment,  with  the  intent  to  defraud,  knowing  them  to  be  false, 
and  they  were  such  as  would  mislead  and  deceive  a  man  of  ordinary 
prudence,  and  Lynch,  by  reason  of  the  representations,  and  trusting  in 
them,  parted  with  his  property  and  was  defrauded,  it  was  not  necessary 
(V  to  show  that  he  was  defrauded  to  the  extent  charged  in  the  indictment, 

r*  '  /v        provided  he  in  good  faith  parted  with  property  which  he  believed  to  be 
p      _  valuable,  and  was  defrauded  to  any  substantial  amount,  fur  example, 

V  ^        to  the  amount  of  five  dollars  ;  and  that  the  defendants  might  l)e  con- 

V  ^        victed,  although,  from   the    mistake  of  Lynch  in  over-estimating   his 
U  1  i\}\       property,  he  miglit  not  have  been  cheated  to  so  great  an  extent  as  he 

'  /  Ai '       at  the  time  supposed. 
/  Jj  /  The  jury  found  the  defendants  guilty,  who  thereupon  moved  in  arrest 

WJ^'         of  judgment,  on  the  ground  that  the  indictment  was  insufficient:  and 
'    -';         this  motion  being  overruled,  they  alleged  exceptions  to  the  order  of  the 
court,  overruling  the  same,  and  also  to  the  instructions  aforesaid. 
W.  C.  Endicott,  for  the  defendant. 
Clifford,  Attorney-General,  for  the  Commonwealth. 
Deavey,  J.^     The  exceptions  taken  to  the  instructions  of  the  presid- 
ing judge  cannot  be  sustained.     If  it  were  true  that  the  party  from 
whom   the   defendants  obtained   goods   by  false  pretences   also  made 
false  pretences  as  to  his  goods  which  he  exchanged  with  the  defend- 
vj^  ants,  that  would  be  no  justification  for  the  defendants,  when  put  on 

^  trial  upon  an  indictment  charging  them  with  obtaining  goods  by  false 

\  I  pretences,  knowingly  and  designedly  in  violation  of  a  statute  of  this 

^  I  Commonwealth.      Whether   the    alleged    misrepresentation    of  Lynch, 

^  I  being  a  mere  representation  as  to  the  value  or  worth  of  a  certain  watch 

'A  I  and  an  opinion  rather  than  a  statement  of  a  fact,  would  be  such  false 

^  j  pretence   as   would   render   him   amenable  to  punishment   under   this 

statute,  might  be  questionable  ,  but  supposing  that  to  be  otherwise,  and 
It  should  appear  that  Lynch  had  also  violated  the  statute,  that  would 
not  justify  the  defendants.  If  the  other  party  has  also  subjected  him- 
self to  a  prosecution  for  a  like  oflfence,  he  also  may  be  punished.     This 


Part  of  the  opinion,  referring  to  a  question  of  pleading,  is  omitted. 


276 


McCOKD   V.   PEOPLE.  [CHAP.  IV. 


would  be  much  better  than  that  both  should  escape  punishment  because 
each  deserved  it  equally.^ 


McCORD  V.  PEOPLE. 
Court  of  Appeals  of  New  York.     1871. 

[Reported  46  New  York,  470.] 

Error  to  the  General  Terra  of  the  Supreme  Court  in  the  first  depart- 
ment to  review  judgment,  affirming  judgment  of  the  Court  of  General 
Sessions  in  and  for  the  County  of  New  York,  convicting  the  plaintiff  in 
error  upon  an  indictment  for  false  pretences. 

The  plaintiff  in  error,  Henry  McCord,  was  tried  and  convicted  in  the 

Court  of  General  Sessions  of  the  Peace,  in  and  for  the  County  of  New 

y  York,  at  the  Juue  term,   1870,  upon  an  indictment  charging  in  sub- 

'^  stance  that  with  intent  to  cheat  and  defraud  one  Charles  C.  Miller,  he 

'   J  falsely  and  fraudulently  represented,  — 

^  "That  he,  the  said  Henry  McCord,  was  an  officer  attached  to  the 

\  bureau  of  Captain  John  Young's  department  of  detectives,  and  that  he 

V  had  a  warrant  issued  by  .Justice  Hogan,  one  of  the  police  justices  of 
A"-  the  city  of  New  York,  at  the  complaint  of  one  Henry  Drinker,  charging 
^  the  said  Charles  C.  Miller  with  a  criminal  offence  and  for  his  arrest ; 

and  that  the  said  Henry  Brinker  had  promised  him,  the  said  Henry 

^  McCord,  $200  for  the  arrest  of  him,  the  said  Charles  C.  Miller." 

^  And  that  said  Miller,  believing  such  false  representations,  was  in- 

K  duced  to  and  did  deliver  to  McCord  a  gold  watch  and  a  diamond  ring.=^ 

^  Per  Curiam.     If  the  prosecutor  parted  with  his  property  upon  the 

^  representations  set  forth  in  the  indictment,  it  must  have  been  for  some 

^  unlawful  purpose,   a  purpose  not  warranted  by  law.     There  was  no 

^  legitimate  purpose  to  be  attained  by  delivering  the  goods  to  the  accused 

^  upon  the  statements  made  and  alleged  as  an  inducement  to  the  act. 

What  action  by  the  plaintiff  in  error  was  promised  or  expected  in 

return  for  the  property  given  is  not  disclosed.     But  whatever  it  was,  it 

was  necessarily  inconsistent  with  his  duties  as  an  officer  having  a  crimi- 

">  nal  warrant  for  the  arrest  of  the  prosecutor,  which  was  the  character 

V  he  assumed.     The  false  representation  of  the  accused  was  that  he  was 

s^i  an  officer  and  had  a  criminal  warrant  for  the  prosecutor.     There  was 

\  no  pretence  of  any  agency  for  or  connection  with  any  person  or  of  any 

.  authority  to  do  any  act  save  such  as  his  duty  as  such  pretended  officer 

.  |i  demanded. 

^•4  The  prosecutor  parted  with  his  property  as  an  inducement  to  a  sup- 

posed officer  to  violate  the  law  and  his  duties  ;  and  if  in  attempting  to 

^  1  Ace.  Peo.  V.  Martin  (Cal ),  36  Pac.  952;  /»  re  Cummins,  16  Col.  451,  27  Pac. 

887.    And  see  Com.  i\  Henry,  22  Pa.  253.  —  Ed. 

r^  -  Arguments  of  counsel  and  the  dissenting  opinion  of  Peckham,  J.,  are  omitted. 


SECT.  IV.] 


STATE   V.   PATTERSON. 


277 


r 
1 


do  this  he  has  been  defrauded,  the  law  will  not  punish  his  confederate, 
altliough  such  confederate  ma^'  have  been  instrumental  in  inducing  the 
commission  of  the  offence.  Neither  the  law  or  public  polic}'  designs 
the  protection  of  rogues  in  their  dealings  with  each  other,  or  to  insure 
fair  dealing  and  truthfulness  as  between  each  other  in  their  dishonest 
practices.  The  design  of  the  law  is  to  protect  those  who,  for  some 
honest  purpose,  are  induced  upon  false  and  fraudulent  representations 
to  give  credit  or  part  with  their  propert}'  to  another,  and  not  to  protect 
those  who  for  unworthy  or  illegal  purposes  part  with  their  goods.  Peo- 
ple V.  WiUiams,  4  Hill,  9  ;  Same  v.  Stetson,  4  Barb.  151. 

The  judgment  of  the  Supreme  Court  and  of  the  Sessions  must  be 
reversed  and  judgment  for  the  defendant.^ 


STATE   V.  PATTERSON. 

Supreme  Court  of  Kansas.     1903. 

[Reported  66  Kan.  447.] 

BuRCH,  J.'^  The  appellant  was  convicted  of  embezzlement  of  money 
which  came  into  his  hands  by  virtue  of  his  official  position  as  treasurer 
of  the  city  of  Clyde.  .  .  . 

The  defence  to  the  action  was  that  appellant  collected  the  money 
embezzled  from  persons  engaged  in  unlawful  traffic  in  intoxicating 
liquors  in  the  city  of  Clyde,  under  an  arrangement  between  such 
persons  and  the  city  whereby  immunity  from  prosecution  was  secured 
to  them.  Counsel  for  appellant  call  this  money  "  blood-money "  j 
characterize  its  collection  as  "robbery,"  and,  from  their  language, 
would  seem  to  regard  the  transaction  at  least  as  infamous  as  that  of  the 
thief  "  in  the  sacristy  with  the  fair  adornments,"  whom  Dante  located 
as  far  down  as  the  eighth  circle  of  hell.  And  because  of  the  utter 
indefensibility  of  the  conduct  of  the  city  and  of  tlie  appellant  under 
the  law,  it  is  claimed  he  cannot  be  punished  criminally.  The  defence 
is  applied  in  many  ways.  It  is  said  the  city  could  not  authorize  the 
collection  of  such  money ;  that  appellant  could  not  act  for  the  city 
in  such  business ;  that  he  did  not  act  as  city  treasurer,  or  by  virtue 
of  such  office,  and  could  exercise  no  official  conduct  in  such  an  affair ; 
that  money  received  by  him  from  such  source  could  not,  and  did  not, 
become  the  property  of  the  city ;  and  that,  if  it  did  become  the  city's 
mone}',  it  was  so  unclean  that  the  law  of  embezzlement  will  not  take 
cognizance  of  it.  The  distinct  court  excluded  all  evidence  relating  to 
this  defence.  In  this  it  was  correct.  The  defence  is  repugnant  to  law, 
to  morality,  and  even  to  expediency  in  the  regulation  of  the  conduct 
of  individuals  in  societ3% 

^  Ace.  State  v.  Crowley,  41  Wis.  271.  But  see  Peo.  v.  Tompkins,  (N.  Y.),  79 
N.  E.  326.  —  Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


'278 


STATE   V.    PATTERSON.  [CHAP.  IV. 


In  IB52  the  Supreme  Court  of  Massachusetts,  in  deciding  that  money 
accuniulated  by  the  illegal  sale  of  intoxicating  liquors  was  nevertheless 
the  subject  of  larceny,  said : 

"  That  same  common  law,  which,  in  its  integrity  and  wisdom,  re- 
fuses to  lend  itself  to  be  the  instrument,  even  indirectly,  for  the  execu- 
tion of  a  criminal  contract,  will  as  little  condescend  to  throw  its  mantle 
over  crime  itself.  The  law  punishes  larceny,  because  it  is  larceny; 
and,  therefore,  one  may  be  convicted  of  theft,  though  he  do  but  steal 
his  own  property,  from  himself  or  his  bailee.  7  H.  VI.  43a ;  3  Co. 
Inst.  110.  And  the  law  punishes  the  larceny  of  property,  not  solely 
because  of  any  rights  of  the  proprietor,  but  also  because  of  its  own 
inherent  legal  rights  as  property;  and,  therefore,  even  he,  who  larceni- 
ously  takes  the  stolen  object  from  a  thief  whose  hands  have  but  just 
closed  upon  it,  may  himself  be  convicted  therefor,  in  spite  of  the 
criminality  of  the  possession  of  his  immediate  predecessor  in  crime. 
This  principle  is  coeval  with  the  common  law  itself  as  a  collection  of 
received  opinions  and  rules,  for  we  have  to  go  back  to  the  Year-books 
to  find  its  first  judicial  announcement.  The  leading  decision  is  the 
case  of  a  so-called  John  at  Stile,  in  13  Edw.  IV,  Sb,  where  it  was 
held  by  the  judges  that  if  A.  steal  the  goods  of  B.,  and  afterwards 
C.  steal  the  same  goods  from  A.,  in  such  case  C.  is  indictable  both  as 
to  A.  and  as  to  B.  This  decision  was  afterwards  affirmed  argue}ido  in 
4  Hen.  VII  5b. 

"  We  do  not  saj-  our  doctrine  is  good  law,  merely  because  it  was  in 
principle  so  adjudged  in  the  time  of  the  Plantagenets  and  the  Tudors  ; 
but  we  say  it  is  good  law,  also,  because  it  is  reasonable  and  just ; 
because  ever}'  subsequent  authority  in  England,  such  as  Hale,  1  Hale, 
P.  C.  (Am.  ed.)  507 ;  East,  2  East,  P.  C.  654  ;  Russell,  2  Russ.  on 
Crim.  (6th  Am.  ed.)  89,  has  adopted  and  approved  it;  because  it  has 
been  affirmed  b}'  modern  judicial  opinion  in  England  ;  Wilkin's  Case, 
2  Leach,  586 ;  because  it  has  already  Ijcen  recognized  in  the  United 
States;  Ward  v.  The  People,  3  Hill,  396;  and  because  it  thus  bears 
that  genuine  stamp  of  venerable  time,  which  consists,  not  in  the 
antiquity  of  date  —  for  there  may  be  old  errors  as  well  as  new  ones  — 
but  in  having  stood  the  test  of  the  scrutiny  of  man}'  successive 
ages.  .  .  . 

"  If,  looking  beyond  the  mere  question  of  propert}',  we  pass  to  con- 
siderations of  public  policy,  this  may  be  regarded  in  two  points  of  view, 
one,  of  convenience  in  the  administration  of  justice,  the  other,  of  higher 
ethtcal  relation.  As  to  the  former  point,  it  is  not  easy  to  conceive  any- 
thing which  would  more  seriously  embarrass  the  public  ministers  of 
justice,  and  obstruct  its  administration,  than  if  it  were  held  that  any 
element  of  illegality  in  the  acquisition  of  property  rendered  it  incapa- 
ble-of  being  the  subject  of  larceny,  and  if,  as  a  consequence,  the 
necessity  followed,  in  every  case,  to  go  into  the  inquiry  how  the  party 
complaining  acquired  the  property. 


SECT.  IV.]  •   STATE  V.    PATTERSOy.  279 

''As  to  the  latter  point,  if  the  question  be  put  in  the  form  most 
favorable  to  the  argument  for  the  defendant  here,  it  stands  thus :  of 
the  alternative  moral  and  social  evils,  which  is  the  greater  —  to  deprive 
property  unlawfully'  acquired  of  all  protection  as  such,  and  thus  to  dis- 
courage unlawful  acquisition  but  encourage  larceny  ;  or  to  punish,  and 
so  discourage  larceny,  though  at  the  possible  risk  of  thus  omitting 
so  far  forth  to  discourage  unlawful  acquisition?  The  balance  of  public 
policy,  if  we  thus  attempt  to  estimate  the  relative  weight  of  alternative 
evils,  requires,  it  seems  to  us,  that  the  larceny  should  be  punished. 
Each  violation  of  law  is  to  be  dealt  with  by  itself.  The  felonious  tak- 
ing has  its  appropriate  and  specific  punishment;  so  also  has  the 
unlawful  acquisition."     (Commonwealth  v.  Rourke,  10  Cush.  397.) 

Such  is  the  law  both  of  larceny  and  embezzlement  in  the  United 
States.  (State  v.  Cloutman,  61  N.  H.  143  ;  Commonwealth  v.  Smith, 
129  Mass.  104;  Commonwealths.  Cooper,  130  id.  285;  Woodward  v. 
The  State,  103  Ind.  127,  2  N.  E.  321 ;  Stave  v.  O'Brien,  94  Tenn.  79, 
28  S.  W.  311,  26  L.  R.  A.  252;  People  v.  Hawkins,  106  Mich.  479, 
64  N.  W.  736 ;  The  State  v.  Shadd,  80  Mo.  358  ;  Miller  &  Smith  v. 
The  Commonwealth,  78  Ky.  15,  39  Am.  Rep.  194  ;  The  State  of  Iowa 
V.  May,  20  Iowa,  305  ;  Bales  v.  The  State,  3  W.  Va.  685  ;  State  v. 
Littschke,  27  Ore.  189,  40  Pac.  167;  Hertzler  v.  Geigley,  196  Pa.  St. 
419,  46  Atl.  366,  79  Am.  St.  Rep.  724.) 

Crime  does  indeed  beget  crime,  but  such  progeny  cannot  justify  itself 
before  the  law  by  its  hideous  and  hateful  parentage. 

The  judgment  of  the  district  court  is  therefore  affirmed.  All  the 
Justices  concurring. 


4 


3 


^.Uh 


i 


EEGINA  V.  HOLLAND.  [CHAP.  IV. 

4.-j»^_<2L  suti    c*_A_jL^    tI5R_A^>_>^  TvQ_v>-«_  Q_^x_»v-v_/5»-s-e>^ 
(_<x^._j..^soa.  c^-soi  \Sv>-X    ijo-ft— *i^«£c  -wcr^  -^^^c-^^yJi.  VsJLStxA^  Va-^Laj\- 

SECTION  V.  -C^T"^  X^ 

Negligence  of  the  Injured  Party. 

REGINA  V.  HOLLAND. 
Liverpool  Assizes.     1841. 

{Reported  2  Moody  ^'  Robinson,  351.] 

Indictment  for  murder.  The  prisoner  was  charged  with  inflicting 
divers  mortal  blows  and  wounds  upon  one  Thomas  Garland,  and  (among 
others)  a  cut  upon  one  of  his  fingers. 

It  appeared  by  the  evidence  that  the  deceased  had  been  waylaid  and 
assaulted  by  the  prisoner,  and  that,  among  other  wounds,  he  was 
severely  cut  across  one  of  his  fingers  by  an  iron  instrument.  On  being 
brought  to  the  infirmary,  the  surgeon  urged  him  to  submit  to  the  ampu- 
tation of  the  finger,  telling  him,  unless  it  were  amputated,  he  considered 
that  his  life  would  be  in  great  hazard.  The  deceased  refused  to  allow 
the  finger  to  be  amputated.  It  was  thereupon  dressed  by  the  surgeon, 
and  the  deceased  attended  at  the  infirmary  from  day  to  day  to  have  his 
wounds  dressed  ;  at  the  end  of  a  fortnight,  however,  lock-jaw  came  on, 
induced  by  the  wound  on  the  finger ;  the  finger  was  then  amputated, 
but  too  late,  and  the  lock-jaw  ultimately  caused  death.  The  surgeon 
deposed  that  if  the  finger  had  been  amputated  in  the  first  instance,  he 
thought  it  most  probable  that  the  life  of  the  deceased  would  have  been 
preserved. 

For  the  prisoner,  it  was  contended  that  the  cause  of  death  was 
not  the  wound  inflicted  by  the  prisoner,  but  the  obstinate  refusal  of  the 
deceased  to  submit  to  proper  surgical  treatment,  by  which  the  fatal 
result  would,  according  to  the  evidence,  have  been  prevented. 

Maule,  J.,  however,  was  clearly  of  opinion  that  this  was  no  defence, 
and  told  the  jury  that  if  the  prisoner  wilfully,  and  without  any  justifi- 
able cause,  inflicted  the  wound  on  the  party,  which  wound  was  ulti- 
mately the  cause  of  death,  the  prisoner  was  guilty  of  murder ;  that  for 
this  purpose  it  made  no  difference  whether  the  wound  was  in  its  own 
nature  instantly  mortal,  or  whether  it  became  the  cause  of  death  by 
reason  of  the  deceased  not  having  adopted  the  best  mode  of  treatment ; 
the  real  question  is  whether  in  the  end  the  wound  inflicted  by  the  pris- 
oner was  the  cause  of  death.  Guilty } 

1  Ace.  Com.  V.  Hackett,  2  All.  136.  —Ed. 


^ 


1 


^ 


1 


1 


SECT,  v.]  REGINA   V.    KEW,  281 


REG  IN  A  V.  DALLOWAY. 

Stafford  Assizes.     1847. 

[Reported  2  Cox  C.  C.  273.] 

The  prisoner  was  indicted  for  the  manslaughter  of  one  Henry  Clarke, 
by  reason  of  his  negligence  as  driver  of  a  cart. 

It  appeared  that  the  prisoner  was  standing  up  in  a  spring-cart, 
and  having  the  conduct  of  it  along  a  public  thoroughfare.  The  cart 
was  drawn  by  one  horse.  The  reins  were  not  in  the  hands  of  the 
prisoner,  but  loose  on  the  horse's  back.  While  the  cart  was  so  pro- 
ceeding down  the  slope  of  a  hill,  the  horse  trotting  at  the  time,  the 
deceased  child,  who  was  about  three  3'ears  of  age,  ran  across  the  road 
before  the  horse,  at  the  distance  of  a  few  yards,  and  one  of  the  wheels  of 
the  cart  knocking  it  down  and  passing  over  it  caused  its  death.  It 
did  not  appear  that  the  prisoner  saw  the  child  in  the  road  before  the 
accident. 

Spooner,  for  the  prosecution,  submitted  that  the  prisoner,  in  conse- 
quence of  his  negligence  in  not  using  reins,  was  responsible  for  the 
death  of  the  child  ;  but  6v-v^cy- 

Erle,  J.,  in  summing  up  to  the  jur}',  directed  them  that  a  party 
neglecting  ordinary  caution,  and,  by  reason  of  that^  neglect,  causing  the 
death  of  another,  is  guilty  of  manslaughter  ;//that  if  the  prisoner  had 
reins,  and  by  using  the  reins  could  have  saved  the  child,  he  was  guilty 
of  manslaughter  ;  but  that  if  they  thought  he  could  not  have  saved  the 
child  by  pulling  the  reins,  or  otherwise  by  their  assistance,  the}'  must 
acquit  him. 

The  jury  acquitted  the  prisoner. 


REGINA  V.  KEW. 
Suffolk  Assizes.     1872. 
[Reported  12  Cox  C.  C.  355.] 

The  prisoners  were  indicted  for  manslaughter.  It  appeared  that  on 
the  2d  of  June  the  prisoner,  Jackson,  who  was  in  the  employ  of  Mr. 
Harris,  a  farmer,  was  instructed  to  take  his  master's  horse  and  cart 
and  drive  the  prisoner  Kew  to  the  Bungay  railway  station.  Being  late 
for  the  train,  Jackson  was  driving  at  a  furious  rate,  at  full  gallop,  and 
ran  over  a  child  going  to  school  and  killed  it.  It  was  about  two  o'clock 
in  the  afternoon,  and  there  were  four  or  five  little  children  from  five  to 
seven  years  of  age  going  to  school  unattended  by  any  adult. 

Metcalfe  and  Simms  lieeve,  for  the  prisoners,  contended  that  there 
was  contributory  negligence  on  behalf  of  the  child  running  on  the  road, 


P 


f 


n 


282 


REGKA   X.   KEW.  [CHAP.  IV. 


and  that  Kcw  was  not  liable  for  the  acts  of  another  man's  servant,  he 
having  no  control  over  the  horse  and  not  having  selected  either  the 

horse  or  the  driver.  . ,     tt       .i  ^i       1*1 

Byles,  J.,  after  reading  the  evidence,  said  :  Here  the  mother  lets  her 
child  cro  out  in  the  care  of  another  child  only  seven  years  of  age,  and 
the  prisoner  Kew  is  in  the  vehicle  of  another  man,  driven  by  another 
man's  servant,  so  not  only  was  Jackson  not  his  servant  but  he  did  not 
even  select  him.  It  has  been  contended  if  there  was  contributory  negli- 
gence on  the  children's  part,  then  the  defendants  are  not  liable.  No 
doubt  contributory  negligence  would  be  an  answer  to  a  civil  action. 
But  who  is  the  plaintiti'  here?  The  Queen,  as  representing  the  nation  ; 
and  if  they  were  all  negligent  together  I  think  their  negligence  would 
l)e  no  defence,  even  if  they  had  been  adults.  If  they  were  of  opinion 
that  the  prisoners  were  driving  at  a  dangerous  pace  in  a  culpably  negli- 
gent manner,  then  they  are  guilty.  It  was  true  that  Kew  was  not 
actually  driving,  but  still  a  word  from  him  might  have  prevented  the 
accident.  If  necessary  he  would  reserve  the  question  of  contributory 
negligence  as  a  defence  for  the  Court  of  Criminal  Appeal. 
The  jury  acquitted  both  prisoners.^ 

>  Ace.  Reg.  V.  Longbottom,  3  Cox  C.  C.  439  ;    Belk  v.  People,  125  111.  f<84  ;    Crura 
V.  State,  64  Miss.  1,  1  So.  1.     But  see  Reg.  v.  Birchall,  4  F.  &  F.  1087.  —  Ed. 


SECT.  VI.] 


COMMONWEALTH   V.    SLATTEEY. 


SECTION   VI. 


283 


J 


Condonation. 


4  Bl.  Com.   133.       Theft  bote  is  where  the  party  robbed  not  only 
knows  the  felon,  but  also  takes  his  goods  again,  or  other  amends  upon 
agreement  not  to  prosecute.     This  is  frequently  called  compounding  of 
felony  ;  and  formerly  was  held  to  make  a  man  an  accessory  ;  but  it  is 
now  punished  only  with  fine  and  imprisonment.     This  perversion  of 
justice,  in  the  old  Gothic  constitutions,  was  liable  to  the  most  severe 
and  infamous  punishment.     And  the  Salic  law  "  latroni  eum  sitnilem 
habuit,  qui  fertiim  celare  vellet,  et  occulte  sine  judice  compositionem 
jejus  admittere:'     By  statute  25  Geo.  H.  c.  36,  even  to  advertise  a  re- 
ward for  the  return  of  things  stolen,  with  no  questions  asked,  or  words 
to  the  same  purport,  subjects  the  advertiser  and  the  printer  to  a  forfeit- 
lure  of  £50  each.^     1  Hawk.  P.  C.  ch.  7,  sect.  7.     But  the  bare  taking 
I  of  one's  own  goods  again  which  have  been  stolen  is  no  ofl'ence  at  all 
unless  some  favor  be  shown  to  the  thief. 


.5 


COMMONWEALTH   v.  SLATTERY. 
Supreme  Judicial  Court  of  Massachusetts.     1888. 

[Reported  147  Mass.  423.] 

Indictment  for  rape  on  Bridget  Donovan.^  At  the  trial  in  the  Supe- 
'rior  Court,  before  Dunbar,  J.,  the  defendant  asked  the  judge  to  instruct 
.the  jury  "  that,  if  said  Donovan  at  any  time  after  the  act  excused  or 
forgave  the  defendant,  then  she  ratified  the  act,  and  he  cannot  be  con- 
victed in  the  case."  The  judge  refused  so  to  instruct,  but  instructed 
,  the  jury  that  evidence  of  her  acts  and  conversation  with  the  defendant, 
>both  before  and  after  the  commission  of  the  alleged  offence,  was  a  proper 
'  subject  for  their  consideration  in  determining  the  guilt  or  innocence  of 
jthe  defendant  at  the  time  of  its  commission.  The  defendant  alleged 
1  exceptions. 

I  W.  Allen,  J.  The  court  rightly  refused  to  give  the  instructions 
■  requested.  The  injured  party  could  not  condone  the  crime  by  excusing 
or  forgiving  the  criminal. 

1  See  Reg.  v.  Burgess,  1.5  Cox  C.  C.  779. 

2  Only  so  much  of  the  case  as  involves  the  question  of  condonation  is  printed. 


y^<^ 


o 


/■ 


284 


COMMONWEALTH   V.    KENNEDY. 


[chap.  IV. 


.^ 


yy 


J" 


FLEENER  v.   STATE. 

Supreme  Court  of  Arkansas.     1S93. 

[Reported  58  Ark.  98.] 


V 


^' 


^ 


/ 


BuxN,  C.  J.^  The  defendant,  A.  W.  Fleener,  was  indicted  at  the 
October  terra,  1892,  of  the  St.  Francis  circuit  court,  for  the  crime  of 
embezzlement ;  at  the  March  term,  1893,  found  guilty  and  sentenced  to 
imprisonment  in  the  penitentiary  for  the  period  of  one  year.  Motions 
in  arrest  of  judgment  and  also  for  a  new  trial  were  overruled,  and 
appeal  taken  to  this  court. 

The  fourth  ground  of  the  motion  for  a  new  trial  is  a  novel  one.  The 
'defendant  contends  that,  having  hired  the  guarantee  company  to  make 
his  bond  for  faithful  performance  of  duty  to  the  Pacific  Express  Com- 
pany, and  that  company  having  paid  the  express-  company  for  all  losses 
claimed  by  it  to  have  been  suffered  by  reason  of  defendant's  alleged 
embezzlement,  therefore  there  was  no  crime  committed ;  that  the 
express  company  had  no  longer  any  interest  at  stake,  and  even  that 
the  State  has  no  interest  in  the  matter.  In  this  the  defendant  is 
mistaken.  This  is  no  longer  a  controversy  between  himself  and 
<^the  two  companies,  or  either  of  them,  and  has  not  been  since  he  fraud- 
ulently appropriated  the  money  of  the  express  company,  if  indeed  he 
did  so  appropriate  it.  It  is  now  a  controversy  between  the  State  of 
Arkansas  and  himself,  which  the  State  will  not  permit  either  one  of  the 
said  companies  to  determine  at  present  or  in  the  future,  nor  will  the 
State  acknowledge  the  validity  of  any  settlement  of  it,  by  any  thing 
i    they  both,  or  either  of  them,  have  done  in  the  past. 


P. 


<^ 


0-) 


?d 


COMMONWEALTH   v.   KENNEDY. 

Supreme  Judicial  Court  of  Massachusetts.     1894. 

[Reported  160  Mass.  312.] 

Complaint,  charging  the  defendant  with  violating  the  provisions  of 
Pub.  Sts.  c.  69,  §  5,  by  boarding  a  ship  without  obtaining  leave,  as 
therein  required. 

At  the  trial  in  the  Superior  Court,  before  Bond,  J.,  there  was  evi- 
dence tending  to  show  that  the  ship  was  unable  to  obtain  a  place  at 
a  wharf  as  desired,  and  was  obliged  to  anchor  in  the  harbor,  that  the 
captain  was  on  board  and  in  charge  of  the  vessel,  that  the  defendant 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  VI.]  COMMONWEALTH   V.   KENNEDY.  285 

was  not  a  pilot  or  public  officer,  and  that  he  had  no  written  leave  from 
any  owner  or  agent  of  the  vessel  to  go  on  board. 

While  the  vessel  was  at  anchor  in  the  harbor,  the  defendant  went  on 
board,  and,  before  doing  any  business,  approached  the  captain  and 
obtained  permission  from  him  to  remain  on  board.  The  defendant  con- 
tended, and  asked  the  judge  to  rule,  that,  if  the  defendant  boarded  the 
vessel  intending,  before  he  engaged  in  any  business  on  board,  to  obtain 
leave  of  the  captain  to  remain,  and  he  did  obtain  such  leave  before  he 
engaged  in  any  business  on  board,  he  was  not  guilty  of  any  violation  of 
the  statute. 

The  judge  declined  so  to  rule,  and  instructed  the  jury  that  the 
statute  required  a  person  to  obtain  leave  of  the  master  or  person  in 
charge  of  the  vessel  before  going  on  board,  and  that  it  would  be  a  vio- 
lation of  the  statute  if  the  defendant  boarded  the  vessel  before  it  was 
made  fast  to  the  wharf  without  first  obtaining  leave  of  the  master  or 
person  in  charge. 

The  jury  returned  a  verdict  of  guilty ;  and  the  defendant  alleged 
exceptions. 

Morton,  J.  We  think  that  the  statute  in  question  must  be  con- 
strued as  if  it  read  ''  without  first  having  obtained  leave  from  the 
master  or  person  having  charge  of  such  vessel,  or  without  first  having 
obtained  leave  in  writing  from  its  owners  or  agents."  Pub.  Sts.  c.  69, 
§  5.  The  statute  as  originally  enacted  was  intended  according  to  its 
title  "to  protect  mariners  and  shipowners  from  imposition"  (St.  1857, 
c.  139),  and  in  order  to  do  that  forbade  without  qualification  the  entry 
upon  a  vessel  before  it  was  made  fast  to  the  wharf  of  any  person  except 
a  pilot  or  public  officer,  without  having  obtained  leave  from  one  of  the 
persons  named  in  the  statute.  The  original  statute  was  re-enacted,  with 
slight  changes  in  phraseology,  in  Gen.  Sts.  c.  52,  §§  22  to  29  inclu- 
sive, excepting  §  26,  which  was  a  re-enactment  of  St.  1859,  c.  235,  and 
the  provisions  of  the  General  Statutes  were  incorporated  into  Pub.  Sts. 
c.  69,  §§  5  to  12  inclusive,  excepting  §  7,  which  was  a  re-enactment  of 
St.  1874,  c.  76.  The  offence  with  which  the  defendant  is  charged 
became  complete  upon  his  boarding  the  vessel  without  having  obtained 
the  leave  which  the  statute  required,  no  matter  what  his  motive  was, 
and  without  regard  to  the  fact  that  permission  was  afterwards  given 
him  by  the  captain  to  remain  on  board.  Commonwealth  v.  Slatter}-, 
147  Mass.  423  ;  Commonwealth  v.  Tobin,  108  Mass.  426.  Cases  may 
be  supposed  where  the  application  of  this  rule  would  operate  with 
harshness,  but  they  do  not  justify  us  in  departing  from  the  words  of 
the  statute.  Exceptions  overruled. 


c^ 


S^ 


286  COMMONWEALTH   V.   ST.   JOHN.  [CHAP.  IV. 

i7c  - 

COMMONWEALTH  v.    St.  JOHN. 

Supreme  Judicial  Court  of  Massachusetts.     1899. 

[Reported  1 73  Mass.  566.] 

V  Indictment,  against  Joseph  St.  John,  Albert  St.   Germaine,    and 

^        t>  Eugene  Beinatehez,  charging  the  first  named  defendant,  on  May  31, 

1896,  at  Springfield,  with  unlawfully  using  a  certain  instrument  in  and 
upon  the  body  of  a  woman  named,  with  intent  to  procure  a  miscarriage, 
and  thereby  causing  her  death  ;  and  charging  the  other  defendants  with 
being  accessories  before  the  fact. 

St.  Germaine,  in  support  of  his  plea  in  bar,  oflfered  to  show  that  he 
was  promised  and  pledged  by  the  city  marshal  of  Springfield,  who  was 
at  the  time  at  the  head  of  the  police  department  of  the  cit^',  and  by  one 
Boyle,  the  chief  detective  of  the  police  department,  and  who  were  in 
the  preliminary  proceedings  the  prosecuting  officers,  and  by  whom  a 
warrant  was  obtained  for  the  arrest  of  St.  Germaine,  that  if  be  would 
malie  full  disclosure  and  confession  of  what  he  knew  with  i-eference  to 
the  abortion  alleged  to  have  been  performed  by  St.  John,  and  against 
whom  a  complaint  had  been  made  and  a  warrant  issued  from  the  police 
court  of  Springfield  for  such  oflience,  as  principal,  and  if  St.  Germaine 
would  hold  himself  in  readiness  to  testify  and  would  testify  at  the  pre- 
liminary hearing  in  the  police  court  upon  the  complaint  and  warrant 
against  St.  John,  and  if  he  would  hold  himself  in  readiness  to  testify 
at  any  other  trial  or  hearing  with  reference  to  the  charge  against  St. 
John,  he  should  have  immunity  and  protection  from  the  crime  charged 
against  him  in  the  indictment. 

Tlie  judge  ruled  that  the  evidence  oflfered  was  not  competent,  and 
excluded  the  same ;  and  each  of  the  defendants  alleged  exceptions.^ 

Morton,  J.  The  decisive  question  in  each  case  is  the  same,  and 
the  cases  may  therefore  properly  be  considered  together.  The  question 
is  whether  the  immunity  that  was  promised  to  the  defendants  bv  the 
city  marshal  and  by  Boyle,  the  chief  detective  of  the  police  depart- 
ment of  Springfield,  can  be  pleaded  in  bar  of  the  indictment  against 
thetHj.  We  think  that  it  cannot.  The  immunity  and  protection  which 
may  be  promised  from  the  consequences  of  crime  on  condition  of  a  full 
disclosure  and  readiness  to  testify  are  not  a  matter  of  right,  but  rest  in 
the  last  resort  on  the  sound  judicial  discretion  of  the  court  having  final 
jurisdiction  to  sentence,  and  cannot  therefore  be  pleaded  in  bar. 
Wright  V.  Rindskopf,  43  Wis.  344;  State  v.  Moody,  69  N.  C.  529; 
State  V.  Graham,  12  Vroom,  15;  Rex  v.  Rudd,  Cowp.  331;  Whart. 
Crim.  Ev.  §§  439.  443;  3  Russ.  Crimes  (9th  Am.  ed.),  599. 

When  such  promises  are  made  by  the  public  prosecutor  or  with  his 
authority,  the  court  will  see  that  due  regard  is  paid  to  them,  and  that 
the  public  faith  which  has  been  pledged  by  him  is  duly  kept.  The 
.      .  ^  The  statement  of  facts  has  been  shorteued.  —  Eu. 


^^ 

vi) 

0 

c^ 

\a 

- 

<i 

1 
0 

<> 

SECT.  VI.l  IN    RE   LEWIS.  ~2S7^- 

prosecuting  officer  has  also  the  power  to  enter  a  nolle  prosequi.  Itajy 
pears  in  each  case  that  neither  the  city  marshal  nor  Boyle  had  any 
authority  from  the  District  Attorney  to  make  the  promises  or  hold  out 
the  inducements  which  they  did.  There  is  nothing  in  either  bill  of  ex- 
ceptions tending  to  show  that  the  District  Attorney  had  anything  to 
do  with  the  prosecution  in  the  police  court.  Neither  of  the  defendants 
appeared  before  the  grand  jury,  although  they  were  at  the  court-house 
from  day  to  day  when  the  grand  jury  was  in  session,  I'eady  to  testify, 
relying  on  the  promises  of  immunit}-  made  by  tlie  cit}'  marshal  and  by 
Boyle.  And  there  is  nothing  tending  to  show  that  there  was  any  ex- 
pectation or  understanding  on  the  part  of  the  District  Attorney'  that 
either  was  to  testify  as  a  government  witness  in  the  Superior  Court, 
and  neither  did  so  testif}'.  If  an  appeal  had  been  made  to  the  nleru- 
ency  of  the  court,  it  would  no  doabt.  hayeJ3£fiii-cmiipetent  for  Ihe  court 
to  take  into  consideration  the  indneempnts  wliioh  h<id  been  |ie1d  out 
and  the  promises  that  had  been  made,^  if  aiiy,  by  the  city  marshal  and- 
bX-Bo.yle-  But  wiiat  was  done  was  to  plead  the  promises  and  induce- 
ments in  bar.  A  question  of  law  was  thus  prpgpnfpfi  nnri  wp  think 
that  the  ruling  of  the  court  was  clearly  right.     JExceptions  overruled. 


In  re  LEWIS. 

Supreme  Court  of  Kansas.     1903. 

[Reported  67  Kan.  562.] 

Mason,  J.^  Oscar  Lewis  was  arrested  on  a  warrant  issued  April  2, 
1903,  charging  him  with  having,  on  June  1,  1902,  obtained  illicit  con- 
nection, under  promise  of  marriage,  with  NelUe  Meador,  she  being  of 
good  repute  and  under  twenty-one  years  of  age.  Upon  a  preliminary 
examination  he  was  held  to  answer  the  charge.  It  was  shown  that  on 
November  27,  1902,  he  was  married  to  said  Nellie  Meador,  and  he  now 
asks  his  discharge  upon  habeas  corpus  on  the  ground  that  such 
marriage  is  a  complete  bar  to  the  prosecution.  The  state  claims,  and 
the  claim  is  supported  b}'  the  evidence,  that  the  defendant  abandoned 
his  wife  on  the  morning  after  the  marriage,  but  this  does  not  affect 
the  legal  aspect  of  the  matter. 

In  the  following  cases  it  has  been  held  that  a  subsequent  marriage 
is  a  bar  to  a  prosecution  for  seduction :  Commonwealth  v.  Eichar,  4 
Pa.  L.  J.  Rep.  326  ;  People  v.  Gould,  70  Mich.  240,  38  N.  W.  232, 
14  Am.  St.  Rep.  493;  The  State  v.  Otis,  135  Ind.  267,  24  N.  E.  954, 
21  L.  R.  A.  733.  The  law  is  so  stated  in  Wharton  on  Criminal 
Law,  10th  edition,  volume  2,  page  1760,  and  Lawson's  Criminal  De- 
fences, volume  5,  page  780.  These  statements  of  the  text-writers, 
however,   are  based  solely  upon  the  cases  just  cited,   and   therefore 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


288  IN   RE   LEWIS.  [chap.  IV. 

add  little  to  their  authority.  The  Michigan  and  Indiana  cases,  more- 
over, merely  followed  the  reasoning  in  Commonwealth  v.  Eichar, 
supra,  so  that  the  soundness  of  the  doctrine  in  principle  can  be  de- 
termined from  an  examination  of  the  opinion  in  that  case.  Its  full 
text  upon  this  point  is  as  follows : 

' '  The  evidence  fully  establishes  the  fact  that,  six  months  previous 
to  the  finding  of  this  indictment  by  the  grand  jury,  the  defendant 
was  legally  married  by  the  Rev.  Mr.  Rugau,  of  the  Lutheran  church, 
to  the  female  whom  he  is  charged  with  having  seduced.  She  is  by  the 
laws  of  God  and  man  his  wife,  and  as  such  is  entitled  to  all  the  rights 
which  are  incident  to  that  relation.  Can  he  now  be  convicted  and 
punished  for  her  seduction  before  marriage?  It  is  not  the  carnal 
connection,  even  when  induced  by  the  solicitation  of  a  man,  that  is  the 
object  of  this  statutory  penal tj-,  but  it  is  the  seduction  under  promise 
of  marriage  which  is  an  offence  of  so  grievous  a  nature  as  to  require 
this  exemplary  punishment.  What  promise?  One  that  is  kept  and 
performed?  Clearly  not,  but  a  false  promise,  broken  and  violated 
after  performing  its  fiendish  purpose.  The  evil  which  led  to  the  en- 
actment was  not  that  females  were  seduced  and  then  made  the  wives 
of  the  seducer,  but  that  after  the  ends  of  the  seducer  were  accom- 
plished his  victim  was  abandoned  to  her  disgrace.  An  objection  to 
this  construction  is  that  it  places  within  the  power  of  the  seducer  a 
means  of  escaping  the  penalty.  So  be  it.  This  is  far  better  than 
by  a  contrary  construction  to  remove  the  inducement  to  a  faithful 
adherence  to  the  promise  which  obtained  the  consent." 

Our  attention  has  not  been  called  to  any  actual  adjudication  against 
this  doctrine,  nor  have  we  discovered  any.  However,  in  State  v.  Bierce, 
27  Conn.  319,  324,  in  considering  the  question  whether  it  could  be 
shown  in  defence  that  the  promise  of  marriage  was  made  in  good  faith, 
and  broken  only  by  reason  of  tbe  subsequent  misconduct  of  the 
complaining  witness,  the  court  said  : 

"  Even  if  he  had  performed  his  promise  to  marry  her,  we  do  not  per- 
ceive how  it  could  plausibly  be  urged  that  it  would  be  any  answer  to 
the  charge  of  the  previous  seduction  ;  however,  such  partial  repara- 
tion might  be  viewed  as  a  circumstance  to  mitigate  the  punishment. 
As  to  the  claim  founded  on  the  misconduct  of  the  female  subsequent 
to  the  illicit  connection  between  her  and  the  defendant,  it  is  a  sufficient 
answer  that  tlie  offence  was  committed  and  complete  before  such 
misconduct  took  place,  and  that,  whatever  effect  it  might  have  upon  a 
claim  by  her  upon  him  for  the  breach  of  his  promise  of  marriage,  or 
however  it  might  be  considered  by  the  court  in  affixing  the  punish- 
ment for  the  offence  charged  upon  the  defendant,  it  could  not  relate 
back  to  render  legal  or  innocent  a  violation  of  the  statute  for  which 
he  had  already  become  amenable." 

In  State  v.  Wise,  32  Ore.  280,  282,  50  Pac.  800,  it  was  said : 

"  But,  as  we  take  it,  the  gravamen  of  the  offence  is  the  act  of  se- 
ducing and    debauching   an   unmarried    female,    of  previous    chaste 


SECT.  VI.]  ■  IN    RE   LEWIS.  289 

cliaracter,  under  or  b}-  means  of  a  promise  of  marriage  ;  and  the 
crime  is  complete  as  soon  as  the  act  is  accomplished,  although  a 
subsequent  marriage  is  by  statute  a  bar  to  a  prosecution." 

In  People  v.  Hough,  120  Cal.  558,  52  Pac.  846,  65  Am.  St.  Rep. 
201,  the  court  held  : 

^'  When  a  man  induces  an  unmarried  female  of  previous  chaste 
character  to  submit  her  person  to  him  by  reason  of  a  promise  of  mar- 
riage upon  his  part,  the  seduction  has  taken  place  —  the  crime  has 
been  committed.  The  succeeding  section,  which  provides  that  the 
marriage  is  a  bar  to  a  prosecution,  clearly  recognizes  that  the  crime  has 
been  committed  when  the  promise  has  been  made  and  the  intercourse 
thereunder  has  taken  place.  There  may  be  incidental  references  in 
some  cases  indicating  that  a  refusal  upon  the  part  of  the  man  to  carry 
out  the  promise  is  a  necessary  element  of  the  offence.  (People  v. 
Samonset,  97  Cal.  448,  32  Pac.  520;  State  v.  Adams,  25  Ore.  172,  35 
Pac.  36,  22,  L.  R.  A.  840,  42  Am.  St.  Rep.  790.)  But  such  is  not 
the  fact." 

In  Clark  and  Marshall's  Law  of  Crimes,  page  1122,  the  autliors 
say : 

"  By  express  provision  of  the  statutes  in  most  states,  the  subse- 
quent intermarriage  of  the  parties  is  a  bar  to  a  prosecution  for  seduc- 
tion. But  this  is  not  the  case  in  the  absence  of  such  a  provision, 
for,  as  was  shown  in  another  place,  the  person  injured  by  a  crime 
cannot  prevent  a  prosecution  by  afterwards  condoning  the  otfence." 

Notwithstanding  the  authorities  cited  in  support  of  the  contention 
of  defendant,  we  are  not  disposed  to  yield  assent  to  it.  Being  based 
upon  the  Pennsylvania  case,  they  depend  for  their  force,  as  it  does, 
upon  the  soundness  of  the  reasoning  by  which  it  is  supported,  and 
this  reasoning  is  based  less  upon  the  language  of  the  statute  than 
upon  considerations  of  public  polic}-,  and  the  decision  borders  upon 
judicial  legislation. 

While  the  following  language  of  Mr.  Justice  Johnston  in  The  State 
V.  Newcomer,  59  Kan.  668,  54  Pac.  685,  was  used  in  a  case  of  stat- 
utory rape,  it  is  equally  applicable  here,  and  is  a  satisfactory  refu- 
tation of  every  argument  advanced  in  the  opinion  in  the  Eichar 
case : 

"In  behalf  of  the  defendant  it  is  argued  that  the  evil  conse- 
quences of  the  unlawful  act  have  been  averted  by  the  marriage  ;  that 
when  the  parties  to  the  act  voluntarily,  and  in  good  faith,  entered  into 
the  marriage  relation  the  offence  was  condoned,  and  that  the  welfare 
of  the  parties  and  their  offspring  requires  and  the  interest  of  the  public 
will  be  best  subserved  by  the  ending  of  the  prosecution. 

"  The  difficulty  with  this  contention  is  that  the  law  does  not  provide 
that  the  offence  may  be  expiated  by  marriage  or  condoned  by  the 
injured  female.  Her  consent  to  the  sexual  act  constitutes  no  defence, 
and  neither  her  forgiveness  nor  anything  which  either  or  both  will  do 
will  take  away  the  criminal  quality  of  the  act  or  relieve  the  defendant 

19 


290 


IN    KE    LEWIS.  [chap.  VI. 


from  the  consequences  of  the  same.  The  principle  of  condonation 
^vhich  obtains  in  divorce  cases  where  civil  rights  are  involved  has  no 
application  in  prosecutions  brought  at  the  instance  of  the  state  for  the 
protection  of  the  public  and  to  punish  a  violation  of  the  law.  It  is 
true,  as  stated,  that  societv  approves  the  act  of  the  defendant,  when 
he  endeavors  to  make  amends  for  the  wrong  done  the  injured  female, 
by  marrying  her,  and  usually  a  good-faith  marriage  between  the  parties 
to  the  wrong  prevents  or  terminates  a  prosecution;  but  the  statute 
which  defines  the  offence  and  declares  punishment  therefor  makes  no 
such  provision.  If  the  defendant  has  acted  in  good  faith  in  marrying 
the  girl,  and  honestly  desires  to  perform  the  marital  obligation  resting 
upon  him,  and  is  prevented  from  doing  so  by  the  influence  and  inter- 
ference of  persons  other  than  his  wife,  it  may  constitute  a  strong 
appeal  to  the  prosecution  to  discontinue  the  same,  or  to  the  governor 
for  the  exercise  of  executive  clemency,  but  as  the  law  stands  it  furnishes 
no  defence  to  the  charge  brought  against  the  defendant." 

Moreover,  the  doctrine  of  the  Pennsylvania,  Michigan  and  Indiana 
courts,  if  accepted  as  sound,  would  not  necessarily  control  here,  since 
it  has  arisen  under  statutes  for  the  punishment  of  offences  that  include 
the  element  of  seduction,  properly  so  called,  and  the  decisions  support- 
ing it  are  based  to  some  extent  upon  that  fact.  The  Kansas  statute 
he°e  involved  (Gen.  Stat.  1901,  §  2021)  does  not  use  the  word 
"  seduce,"  and,  while  the  offence  it  creates  is  commonly  and  conven- 
iently called  "  seduction,"  this  does  not  imply  that  the  term  is  techni- 
cally correct.  It  makes  criminal  the  act  of  obtaining  illicit  connection 
under  promise  of  marriage  with  any  female  of  good  reputation  under 
twentj'-oue  years  of  age.  This  does  not  constitute  seduction,  as  the 
word  is  used  in  the  statutes  of  other  states. 

We  hold  that  a  subsequent  marriage  to  the  injured  female  is  not  a 
bar  to  a  prosecution  under  section  2021  of  the  General  Statutes  of 
1901. 


SECT.  I.]        CASTELL,   WIDOW,    V.   BAMBRIDGE    AND   CORBET.  291 

CHAPTER   Y. 
RESPOXSIBILITY :   CAUSATION. 


SECTION  I. 
Means  of  Commission. 


If  a  man,  either  by  working  upon  the  fancy  of  another  or  possibly  by 
harsh  or  unkind  usage,  puts  another  into  such  passion  of  grief  or  fear 
that  the  party  either  dies  suddenly,  or  contracts  some  disease  whereof 
he  dies,  though,  as  the  circumstances  of  the  case  maj^  be,  this  may  be 
murder  or  manslaughter  in  the  sight  of  God,  yet  in  foro  humano  it 
cannot  come  under  the  judgment  of  felony,  because  no  external  act  of 
violence  was  offered  whereof  the  common  law  can  take  notice,  and 
secret  things  belong  to  God  ;  and  hence  it  was,  that  before  the  statute 
of  1  Jac.  cap.  12,  witchcraft  or  fascination  was  not  felony,  because  it 
wanted  a  trial,  though  some  constitutions  of  the  civil  law  make  it 
penal.  .  .  . 


/^^ 


Pulton,  de  Pace,  122.  A  man  was  indicted  that  he  did  feloniously 
carry  his  own  father,  being  sick,  against  his  will  in  a  frostie  and  cold 
time  from  one  town  to  another,  whereof  he  died ;  and  this  was  ad- 
judged felony  in  him.  For  in  this  case  the  son  had  a  meaning  that  his 
father's  life  should  be  shortened,  and  he  brought  to  his  death.^ 


CASTELL,  WIDOW,  v.  BAMBRIDGE  AND  CORBET. 
Guildhall.     1730. 

[Reported  2  Strange,  854.] 

The  defendant  Bambridge,  having  been  prosecuted  on  the  report  of 
the  committee  of  the  House  of  Commons  for  the  murder  of  the  plain- 
tiflTs  husband,  who  was  a  prisoner  in  the  Fleet  under  the  custody  of 


1  S.  C.  2Ed.  3,  18b.— Ed. 


,SH^  .rC-vL^^ 


^^-^(-jt.^^.-.^JLX. 


292 


REX  V.   McDANIEL.  [CHAP.  V. 


Bambridge  the  warden,  and  having  on  the  trial  been  honorably  acquit- 
ted upon°the  prosecutor's  own  evidence,  was  followed  with  an  appeal, 
to  which  Corbet,  who  on  the  cross-examination  appeared  to  be  a  ma- 
terial witness  for  Bambridge,  was  now  also  made  an  appellee.^ 

Upon  this  the  appeal  was  arraigned,  setting  forth  that  the  appellant's 
husband  was  a  prisoner  in  the  Fleet  under  the  custody  of  Bambridge 
the  warden,  who  made  an  assault  upon  him,  and  contrary  to  his  will 
carried  him  to  the  house  of  Corbet,  a  victualling  house  within  the  Fleet, 
and  there  imprisoned  him,  where  one  White  then  lay  ill  of  the  small- 
pox, which  Castell  had  never  had  ;  that  the  appellees  had  notice  of  this, 
and  were  desired  to  suffer  him  to  remove  to  another  place  in  the  prison, 
which  they  refused,  and  afterwards  Castell  fell  ill  of  that  distemper, 
and  died  in  Corbet's  house,  whereby,  the  count  concludes,  the  appellees 
were  guilt}-  of  his  murder. 

Without  staying  for  a  copy  of  the  declaration  the  appellees  instanter 
pleaded  not  guilty,  and  their  plea  was  rehearsed  in  French,  and  issue 
joined. 

Upon  the  26th  of  January  the  trial  came  on  at  Guildhall  before  the 
Chief  Justice  [Raymond].  After  a  long  examination  the  Ciiief  Justice 
directed  the  jury  that  if  they  believed  Castell  was  carried  to  Corbet's 
against  his  consent,  and  was  there  so  detained,  that  Bambridge  and 
Corbet  knew  the  small-pox  was  there,  that  Castell  had  not  had  it,  but 
feared  it,  and  desired  to  be  removed,  or  not  be  carried  there  at  all, 
that  he  caught  the  small-pox  of  White,  and  died  thereof,  —  then  the 
appellees  would  be  guilty  of  murder  ;  but  if  any  one  of  these  facts  were 
not  proved  to  the  satisfaction  of  the  jury,  they  ought  to  be  acquitted. 
And  there  being  no  pretence  to  charge  either  of  the  appellees,  the  jury 
brought  them  in  not  guilty.^ 


REX  V.  McDANIEL. 
Crown  Case  Reserved.     1756. 

[Reported  Leach  {ith  ed.),  44.] 

At  the  Old  Bailey,  Januar}'  Session,  1754,  one  Joshua  Kidden  was 
tried  before  Mr.  Justice  Foster,  for  robbing  Mary  Jones,  widow,  on 
the  highway,  of  one  guinea,  a  half  crown,  and  two  shillings  and  six- 

1  Part  of  the  case,  involving  questions  of  procedure  only,  is  omitted. 

-  See  Rex  v.  Huggins,  2  Ld.  Raym.  1.574,  2  Strange,  882.  In  this  case  Lord  Chief 
Justice  Raymond  said  :  "  There  is  no  particular  way  of  killing  another  that  is  neces- 
sary to  constitute  a  murder  ;  but  the  committing  of  murder  is  as  various  as  the  several 
ways  of  putting  an  end  to  life.  In  the  case  of  a  prisoner  there  is  no  occasion  for  an 
actual  stroke  :  the  restraining  him  by  force,  and  killing  him  by  ill-usage,  is  enough  to 
constitute  this  offence.  All  the  authors  who  speak  of  this  species  of  murder  describe 
it  by  a  general  expression  j^er  dure  garde  de  ses  gardens."  —  Ed. 


1 


SECT,  l]  rex    V.   McDANIEL.  293 

pence.  The  prosecutrix  swore  ver}-  positively  to  the  person  of  the 
prisoner  and  to  the  circumstances  of  the  robber}',  in  which  she  was 
confirmed  by  one  Berr}-.  Tlie  prisoner,  on  the  evidence  of  these  two 
witnesses,  was  convicted  and  executed  ;  and  on  the  first  of  March  fol- 
lowing the  reward  of  fort}-  pounds,  given  b}-  4  &  b  Will,  and  Marv, 
c.  8,  to  those  who  shall  convict  a  highway'  robber,  was  divided  between 
the  prosecutrix,  Mary  Jones,  John  Berr}',  Stephen  Macdaniel,  and 
Thomas  Cooper.  The  history  of  this  prosecution  la}-  concealed  in  the 
minds  of  its  fabricators  until  the  9th  of  August,  1754,  when  the  high 
constable  of  the  hundred  of  Blackheath  having  taken  up  one  Blee  on 
suspicion  of  being  a  thief,  it  was  discovered  to  have  been  a  conspiracy 
and  contrivance  to  obtain  the  reward. 

Diligent  search  was  accordingly  made  to  apprehend  the  miscreants 
concerned  in  this  extraordinary  transaction  ;  and  at  the  Old  Bailey  in 
June  Session,  1756,  Stephen  Macdaniel,  John  Berr}-,  and  Mary  Jones 
were  indicted  before  Mr.  Justice  Foster,  present  Mr.  Baron  Smythe, 
for  the  wilful  murder  of  Joshua  Kidden,  in  maliciously  causing  him  to 
be  unjustly  apprehended,  falsel}^  accused,  tried,  convicted,  and  exe- 
cuted, well  knowing  him  to  be  innocent  of  the  fact  laid  to  his  charge, 
with  an  intent  to  share  to  themselves  the  reward,  etc.  The  prisoners 
were  convicted,  upon  the  clearest  and  most  satisfactory  evidence,  of  the 
fact,  and  a  scene  of  depravity  was  disclosed  as  horrid  as  it  was  unex- 
ampled. The  judgment,  however,  was  respited,  upon  a  doubt  whether 
an  indictment  for  murder  would  lie  in  this  case.  The  special  circum- 
stances were  accordingl}-  entered  upon  the  record,  together  with  an 
additional  finding  of  the  jury,  "  That  Justice  Hall,  in  the  Old  Bailey,  is 
situated  within  the  county  of  the  city  of  London  ;  and  that  felonies  com- 
mitted in  the  County  of  Middlesex  have  from  time  immemorial  been 
accustomed  to  be  tried  there,"  in  order  that  the  point  of  law  might 
be  more  full}'  considered  upon  motion  in  arrest  of  judgment.  But 
Sir  Robert  Henley,  the  Attorney-General,  declined  to  argue  it,  and 
the  prisoners  were  at  a  subsequent  session  discharged  from  that 
indictment. 

Sir  William  Blackstone,  however,  says  that  there  were  grounds  to 
believe  it  was  not  given  up  from  any  apprehension  that  the  point  was 
not  maintainable,  but  from  other  prudential  reasons,^ 

1  "The  author  has  heard  Lord  Mansfield,  C.  J.,  make  the  same  observation,  and 
say  that  the  opinions  of  several  of  the  judges  at  that  time,  and  his  own,  were  strongly 
in  support  of  the  indictment."     1  East  F.  C,  333  n.  — Ed. 


\' 


294  REGINA   V.    BENNETT.  [CHAP.  V. 

REGINA  V.  BENNETT. 

Crown  Case  Reserved.     1858. 

[Reported  28  L.  J.  M.  C   27.] 

Case  stated  by  Willks,  J.  The  defendant  was  convicted  of  the  man- 
slaughter of  Sarah  Williams.  The  defendant  was  a  dealer  in  fireworks, 
and  he  caused  fireworks  to  be  made  in  his  shop,  contrary  to  the  provi- 
sions of  9  &  10  Will.  3.  c.  7,  s.  1.  While  the  defendant  was  absent 
from  his  shop  a  fire  broke  out,  either  by  pure  accident  or  by  tlie  negli- 
gence of  his  servant,  and  a  rocket  was  caused  to  fly  across  the  street. 
The  rocket  set  fire  to  the  house  in  which  the  deceased  was  at  the  time, 
and  the  deceased  was  thereby  burned  to  death.  It  was  objected  that 
the  death  of  the  deceased  was  not  the  direct  and  immediate  result 
of  an}'  wrong  or  omission  on  the  part  of  the  defendant.  Willes,  J., 
however,  overruled  the  objection,  holding  that  the  prisoner  was  guilt}* 
of  a  misdemeanor  in  doing  an  act  with  intent  to  do  what  was  forbidden 
by  the  statute  ;  and  that  as  the  fire  was  occasioned  by  such  misde- 
meanor, and  without  it  would  not  have  taken  place,  or  could  not  have 
been  of  such  a  character  as  to  cause  the  death  of  the  deceased,  which 
otherwise  would  not  have  taken  place,  a  case  was  made  out.^ 

CocKBURN,  C.  J.  —  The  prisoner  kept  a  quantity  of  fireworks  in  his 
house,  but  that  alone  did  not  cause  the  fire  by  which  the  death  was 
occasioned.  It  was  the  superadded  negligence  of  some  one  else  that 
caused  it.  Had  the  death  proceeded  from  the  natural  consequence  of 
this  unlawful  keeping  of  the  fireworks,  as,  for  instance,  if  from  the 
prisoner's  negligent  keeping  of  them  a  rocket  had  gone  off  in  sponta- 
neous combustion,  and  so  caused  the  death,  the  conviction  might, 
I  think,  have  been  maintained.  But  here  the  death  was  caused  by  the 
act  of  the  defendant  jdZms  the  act  of  some  one  else. 

WiLLES,  J.  Having  given  very  full  consideration  to  this  case  since 
the  trial,  I  concur  in  the  opinion  of  the  Chief  Justice,  that  the  interven- 
ing of  the  negligent  act  of  the  servant  makes  the  death  too  remotely 
caused  by  the  illegal  act  of  the  prisoner  in  keeping  the  fireworks,  and 
so  disconnects  it  from  his  act,  and  that  the  conviction  cannot  be 
supported. 

The  other  Judges  concurred.  Conviction  quashed. 

1  This  short  statement  of  the  case  is  abridged  from  the  statement  of  Willes,  J. 
—  Ed. 


SECT.  I.J  KEGINA   V.    TOAVERS.  295 

REGINA   V.    GREENWOOD. 
Liverpool  Assizes.     1857. 

[Reported  7  Cox  C.  C.  404.] 

The  prisoner  was  indicted  for  murder  and  rape  on  a  child  under  ten. 

It  appeared  from  the  evidence  that  the  prisoner  had  connection  witli 
the  deceased,  and  that  it  was  afterwards  discovered  she  had  the  venereal 
disease. 

I^Wnley  and  C.  H.  Hopwood,  for  the  prosecution. 

Cohbett,  for  the  prisoner. 

WiGHTMAN,  J.,  told  the  jury  that  the  malice  which  constitutes  mur- 
der might  be  either  express  or  implied.  There  was  no  pretence  in  tliis 
case  that  there  was  any  malice  other  than  what  might  be  imphed  by 
law.     There  were  five  questions  for  them  to  consider. 

First,  had  the  prisoner  connection  with  her? 

Secondly,  did  she  die  therefrom? 

Thirdly,  had  she  the  venereal  disease? 

Fourthly,  did  she  die  from  its  effects? 

Fifthly,  did  she  get  it  from  the  prisoner? 

If  they  were  of  opinion  that  the  prisoner  had  connection  with  her, 
and  she  died  from  its  effects,  then  that  act  being,  under  the  circum- 
stances of  this  case,  a  felony  in  point  of  law,  this  would,  of  itself,  be 
such  malice  as  would  justify  them  in  finding  him  guilty  of  murder. 

The  jury  retired,  and,  after  some  time,  returned  into  court  saying  that 
they  were  satisfied  that  he  had  connection,  and  that  her  death  resulted 
therefrom,  but  were  not  agreed  as  to  finding  him  guilty  of  murder. 

WiGHTMAN,  J.,  told  them  that,  under  these  circumstances,  it  was 
open  to  them  to  find  the  prisoner  guilty  of  manslaughter,  and  that  they 
might  ignore  the  doctrine  of  constructive  malice  if  they  thought  fit. 

The  jury  found  a  verdict  of  manslaughter,  and  the  prisoner  was 
ordered  to  be  kept  in  penal  servitude  for  life. 


REGINA   V.   TOWERS. 
Carlisle  Assizes.     1874. 

[Reported  12  Cox  C.  C.  530.] 

"Wilson  Towers  was  charged  with  the  manslaughter  of  John  Heth- 
erington  at  Castlesowerby  on  the  6th  of  September,  1873. 

The  prisoner,  who  had  been  drinking  on  the  4th  of  August,  went 
into  a  public-house  at  New  Yeat  near  Castlesowerb}',  kept  b}'  the 
mother  of  the  deceased,  and  there  saw  a  girl  called  Fanny  Glaister 
nursing  the  deceased  child,  who  was    then  onl}-  about  four    months 


296  EEGINA   V.    TOWERS.  [CHAP.  V. 

and  a  half  old,  having  been  born  on  the  20th  of  March,  1873.  The 
prisoner,  who  appeared  to  have  had  some  grievance  against  Fanny 
Glaister  about  her  hitting  one  of  his  children,  immediately  on  entering 
the  public-house  went  straight  up  to  where  she  was,  took  her  by  the 
hair  of  the  head,  and  hit  her.  She  screamed  loudly,  and  this  so 
frjo-htened  the  infant  that  it  became  black  in  the  face ;  and  ever  since 
that  day  up  to  its  death  it  had  convulsions  and  was  ailing  generally 
from  a  shock  to  the  nervous  system.     The  child  was  previously  a  very 

healthv  one.^ 

Htnry  submitted  that  there  was  no  case  to  go  to  the  jury,  but 
Denman,  J.,  said,  that  he  should  leave  it  to  the  jury  to  say  whether 
the  death  of  the  child  was  caused  by  the  unlawful  act  of  the  prisoner, 
or  whether  it  was  not  so  indirect  as  to  be  in  the  nature  of  accident. 
This  case  was  different  from  other  cases  of  manslaughter,  for  here 
the  child  was  not  a  rational  agent,  and  it  was  so  connected  with  the 
girl  that  an  injury  to  the  girl  became  almost  in  itself  an  injury  to 
the  child. 

Denman,  J.,  in  summing  up,  said  it  was  a  very  unusual  case,  and 
it  was  very  unusual  indeed  to  find  a  case  in  which  they  got  practically 
no  assistance  from  previously  decided  cases.  There  was  no  offence 
known  to  our  law  so  various  in  its  circumstances  and  so  various  in 
the  considerations  applicable  to  it  as  that  of  manslaughter.  It  might 
be  that  in  this  case,  unusual  as  it  was,  on  the  principle  of  common  law 
manslaughter  had  been  committed  by  tlie  prisoner.  The  prisoner  com- 
mitted an  assault  on  the  girl,  vvhicli  is  an  unlawful  act,  and  if  that  act, 
in  their  judgment,  caused  the  death  of  the  child,  i.  e.,  that  the  child 
would  not  have  died  but  for  that  assault,  they  might  find  the  prisoner 
guilty  of  manslaughter.  He  called  their  attention  to  some  considera- 
tions that  bore  some  analogy  to  this  case.  This  was  one  of  the  new 
cases  to  which  they  had  to  apply  old  principles  of  law.  It  was  a  great 
advantage  that  it  was  to  be  settled  by  a  jury  and  not  by  a  judge.  If 
he  were  to  say,  as  a  conclusion  of  law,  that  murder  could  not  have 
been  caused  by  such  an  act  as  this,  he  might  have  been  laying  down  a 
dangerous  precedent  for  tlie  future ;  for  to  commit  a  murder  a  man 
might  do  the  very  same  thing  this  man  had  done.  They  could  not 
commit  murder  upon  a  grown-up  person  by  using  language  so  strong 
or  so  violent  as  to  cause  that  person  to  die.  Therefore  mere  intimida- 
tion, causing  a  person  to  die  from  fright  by  working  upon  his  fancy, 
was  not  murder.  Put_J]ierg_were  cases  in  which  intimidations  had 
been  held  to  be  murder.  If  for  instance  four  or  five  persons  were  to 
stand  round  a  man  and  so  threaten  him  and  frighten  him  as  to  make 
him  believe  that  his  life  was  in  danger,  and  he  were  to  back  awa}-  from 
them  and  tumble  over  a  precipice  to  avoid  them,  then  murder  would 
have  been  committed.  Then  did  or  did  not  this  principle  of  law  apply 
to  the  case  of  a  child  of  such  tender  years  as  the  child  in  question? 
1  The  evideuce  is  omitted. 


SECT.  I.]  REGINA   V.    TOWERS.  297 

For  the  purposes  of  the  case  he  would  assume  that  it  did  not ;  for  the 
purposes  of  to-da}'  he  should  assume  that  the  law  about  working  upon 
people  by  fright  did  not  apply  to  the  case  of  a  child  of  such  tender 
years  as  this.  Then  arose  the  question,  which  would  be  for  them  to 
decide,  whether  this  death  was  directly  the  result  of  the  prisoner's  un- 
lawful act,  whether  the}'  thought  that  the  prisoner  might  be  held  to  be 
the  actual  cause  of  the  child's  death,  or  whether  the}'  were  left  in  doubt 
upon  that  upon  all  the  circumstances  of  the  case.  After  referring  to 
the  supposition  that  the  convulsions  were  brought  on  owing  to  the  child 
teething  he  said  that  even  though  the  teething  might  have  had  some- 
thing to  do  with  it,  3'et  if  the  man's  act  brought  on  the  convulsions,  or 
brought  them  to  a  more  dangerous  extent,  so  that  death  would  not 
have  resulted  otherwise,  then  it  would  be  manslaughter.  If,  therefore, 
the  jur}^  thought  that  the  act  of  the  prisoner  in  assaulting  the  girl  was 
entirel}'  unconnected  with  it,  that  the  death  was  not  caused  by  it,  but 
b}'  a  combination  of  circumstances,  it  would  be  accidental  death  and 
not  manslaughter.*  iVb^  (juilty. 

1  Compare  Reg.  v.  Murton,  3  F.  &  F.  492.  lu  charging  the  jury  iu  that  case 
BvLES,  J.,  said  :  — 

Within  a  few  hours  of  her  death  the  woman  said  that  her  husband  had  caused  her 
deaths  but  to  some  of  the  witnesses  she  said  that  he  had  "  broken  her  heart,"  and 
that  being  turned  out  of  her  home  had  caused  her  death.  Taken  all  together  these 
dying  declarations  are,  perhaps,  more  in  favor  of  than  against  the  prisoner ;  for  if  the 
woman  died  of  a  broken  heart,  and  from  anguish  at  being  turned  out  of  her  home, 
it  would  not  be  a  case  of  manslaughter.  To  constitute  that  crime  there  must  have 
been  some  physical  or  corporeal  injury,  negative  or  positive,  as  a  blow,  or  the  depri- 
vation of  necessaries,  or  the  like.  Almost  the  last  thing  she  had  said  was,  "  That 
villain  has  broken  my  heart."  There  was,  however,  violence,  which,  according  to  the 
evidence,  might  have  accelerated  her  death.  ...  It  is  clearly  the  law  that  if  the 
death  was  accelerated  by  violence,  so  that  death  happened  sooner  than  it  otherwise 
would  have  done,  that  is  homicide.  It  is  not  murder,  unless  death  was  intended,  but 
it  is  manslaughter  if  the  violence  hastened  the  death.  Mere  unkind  or  unhusbandlike 
usage  is  not  enough,  and  there  must  be  violence,  physical  or  corporeal.  If  the  being 
treated  so  and  turned  out  of  her  home  had  preyed  upon  her  spirits  and  broken  her 
heart,  it  is  not  a  case  of  manslaughter,  and  human  tribunals  can  take  no  cognizance 
of  it  as  a  criminal  offence.  The  question,  then,  for  you  lies  in  a  very  narrow  compass 
indeed.  The  question  is,  was  the  violence  used  towards  the  deceased  on  the  kitchen 
floor  on  that  night  the  cause  of  her  death  in  this  sense  —  that  it  hastened  her  death? 
That  is,  did  it  cause  her  to  die  sooner  than  she  otherwise  would  have  died?  Did  the 
blows,  or  the  throwing  on  the  floor,  or  both  conjointly,  hasten  her  death,  and  cause 
her  to  die  sooner  than  she  otherwise  would  have  done?  If  so  you  should  find  the 
prisoner  guilty;  if  not,  acquit  him. — Ed. 


^f^^f<-^^^ 


293  BELK  V.   PEOPLE.  [CIIAP.  V. 

BELK  V.   PEOPLE. 

Supreme  Court  of  Illinois.    1888. 

[Reported  125  ///.  584.] 

Shope,  J.  The  plaintiffs  in  error,  John  Belk,  John  Hill,  and  George 
AVilliams,  with  George  Belk,  were  jointly  indicted,  in  the  Jo-Duviess 
Circuit  Court,  for  the  murder  of  Ann  Reed,  the  indictment  charging  in 
the  various  counts,  in  varying  forms,  that  the  murder  was  committed 
by  the  defendants,  by  wilfully,  recklessly,  negligently,  wrongfully  and 
feloniously  driving  a  team  of  horses  hitched  to  a  wagon,  upon  and 
against  a  wagon  in  which  the  deceased  was  riding,  thereby  causing  the 
horses  attached  to  the  wagon  in  which  she  was  so  riding,  to  run  away, 
thereby  throwing  said  Ann  Reed  upon  the  ground,  whereby  slie  re- 
ceived wounds  and  injuries  from  which  she  died  the  following  day.  A 
trial  resulted  in  an  acquittal  of  said  George  Belk,  and  a  verdict  of 
guilty  of  manslaughter  as  to  plaintiffs  in  error,  and  fixing  their  punish- 
ment at  confinement  in  the  penitentiary  at  one  year  each.  Motions  for 
new  trial  and  in  arrest  were  seveially  overruled,  and  sentence  pro- 
nounced by  the  court  upon  the  verdict. 

The  facts  immediately  connected  with  tlie  killing  of  Mrs.  Reed,  in 
reference  to  which  there  is  little  or  no  controversy,  are  as  follows  :  On 
the. 5th  day  of  July,  1886,  a  celebration  of  the  fourth  of  July  was  held. 
in_a  grove  about  a  half  mile  from  the  village  of  Elizabeth,  in  Jo-I)aviess 
Count}'.  The  grove  was  a  quarter  of  a  mile  from  the  public  highway* 
and  was  reached  through  a  lane  about  one  rod  wide  and  fifty  rods  longj_ 
extending  from  the  road  into  the  fields  in  which  the  grove  was  situated.- 
This  lane,  ordinarily  closed  by  gates  at  each  end,  was  on  this  day 
thrown  open  and  used  b}'  the  public.  About  six  rods  from  the  gate 
nearest  the  grove  was  a  hollow  or  depression  crossing  the  lane,  the 
descent  into  which,  b}'  the  road,  was  quite  steep,  and  at  this  point, 
owing  to  the  unevenness  of  the  surface  of  the  land,  a  team  could  not 
be  driven  aside  to  permit  another  to  pass.  About  six  o'clock  p.  m. 
the  deceased,  with  others,  started  homeward,  through  this  lane,  in 
a  spring  wagon  or  "hack"  drawn  by  two  horses,  driven  by  her  son 
Richard.  About  the  same  time,  plaintiffs  in  error,  in  company  with 
George  Belk,  also  started  from  the  grove,  in  a  like  vehicle,  also  drawn 
by  two  horses  driven  by  the  defendant  John  Belk.  At  the  time  the 
latter  entered  the  narrow  lane  the  former  was  some  six  rods  in  ad- 
vance, and  in  plain  view.  About  the  time  of  so  entering  the  lane,  the 
horses  driven  by  Belk  began  to  run,  and  ran  into  and  against  the 
wagon  in  which  the  deceased  was  riding,  breaking  the  end-gate  and- 
the  back  of  the  seat.  The  collision  occurred  just  as  the  forward  con- 
veyance was  descending  the  declivity  into  the  hollow  mentioned.    The 


SECT.  I.] 


BELK   V.    PEOPLE. 


299 


result  was  that  the  horses  attached  to  the  vehicle  in  which  Mrs.  Reed 
was  riding  became  unmanageable,  and  ran  awa}',  whereb}'  she  was 
thrown  violently  to  the  ground,  and  was  injured  so  that  she  died  the 
next  da}-. 

Some  question  is  made  whether  the  collision  was  the  proximate 
cause  of  the  team  running  awa}',  and  of  the  injury  and  death  of  Mrs. 
Reed  ;  but  it  is  enough  to  say,  the  evidence  was  sufficient  upon  which 
to  base  the  finding  of  the  jury  in  that  respect.  The  question  was  sub- 
mitted under  proper  instructions,  and  there  is  no  ground  for  disturbing 
the  verdict  for  that  reason.  There  was  direct  causal  connection 
between  the  collision  and  the  death  of  the  deceased.  Between  the 
acts  of  omission  or  commission  of  the  defendants,  by  which  it  is 
alleged  the  collision  occurred,  and  the  injury  of  the  deceased,  there 
was  not  an  interposition  of  a  human  will  acting  independently  of  the 
defendants,  or  any  extraordinary  natural  phenomena,  to  break  the 
causal  connection.  It  may  be  fairly  said  that  what  followed  the  collid- 
ing of  the  defendants'  team  with  the  wagon  in  which  the  deceased  was 
riding,  was  the  natural  and  probable  effect  of  the  collision,  and  the 
collision  was  in  consequence  of  the  manner  in  which  the  team  of  the  de- 
fendants was  controlled.  It  can  make  no  difference  whether  the  driver 
of  the  team  after  which  the  deceased  was  riding,  was  guilty  of  negli- 
gence in  not  controlUng  or  failing  to  control  his  team  after  the  colli- 
sion. It  may  be  that  persons  standing  by,  or  the  driver,  might,  by  the 
exercise  of  diligence  and  care,  have  checked  the  horses,  and  thereby 
prevented  the  final  catastrophe ;  but  because  they  did  not  do  so,  and 
were  derelict  in  moral  or  even  legal  duty  in  that  regard,  will  not 
release  defendants  from  the  responsibility  of  their  wrongful  act  or 
omission  of  their  legal  duty.  If  the  driver,  instead  of  being  negligent, 
as  is  claimed,  in  controlling  his  team,  had  done  some  act  contributing 
to  the  running  away  of  his  horses,  or  driven  upon  a  bank,  whereby  the 
carriage  had  been  overturned  and  the  deceased  thrown  out,  or  the  like, 
it  might  justly  be  said  that  it  was  the  act  of  the  driver,  and  not  of  the 
defendants,  to  which  the  death  of  the  deceased  was  legally  attributable. 
AVharton  on  Crim.  Law,  341,  ei  seq.;  Roscoe  on  Crim.  Ev.  700,  et  seq. 


500 


EEGIXA  V.    iniCHELL.  [CHAP.  V. 

SECTION  II. 
Memoteness. 

EEGINA   V.   NORRIS. 
Worcester  Assizes.     ISiO. 

[Reported  9  Car.  cj-  P.  241.] 

The  prisoners  were  indicted  on  the  7  &  8  Geo.  4,  c.  30,  s.  7,  for  felo- 
niously, unlawfully,  and  maliciously  damaging,  with  intent  to  destroy 
it,  a  certain  steam-engine  used  in  the  draining  and  working  of  a  mine; 
2d  count,  for  damaging  the  engine  with  intent  to  render  it  useless. 

It  appeared  that  the  steam-engine  was  used  to  bring  up  coals  from 
one  shaft  of  the  mine,  and  water  from  another,  and  that  it  was  stopped 
and  locked  up  on  the  evening  of  the  3d  of  March,  and  that  the  prisoners 
on  that  night  got  into  the  engine-house  and  set  the  engine  going,  and 
from  its  having  no  machinery  attached  to  it,  the  engine  worked  with 
greater  velocity,  and  the  wheels  were  some  of  them  thrown  out  of  cog, 
so  that  the  engine  was  damaged  to  the  amount  of  £10,  and  would  have 
been  injured  to  a  much  greater  extent,  if  the  mischief  had  not  been 
discovered  and  the  engine  stopped. 

Gurnet,  B.,  left  it  to  the  jury  to  say,  whether  the  intent  of  the 
prisoners  was  to  destroy  Uie  engine,  or  to  render  it  useless  ;  and  held, 
that,  if  the  prisoners  had  either  of  those  intents,  the  case  came  within 
the  provisions  of  the  statute. 

Tlie  jury  found  the  ^jrisoners  guilty. 

REGINA  V.  MITCHELL. 
Crown  Case  Reserved.     1840. 

[Reported  2  Moody,  120.] 

The  prisoner  Catherine  Michael  was  tried  before  Mr.  Baron  Alder- 
son  at  the  Central  Criminal  Court  in  April,  1840  (Mr.  Justice  Littledale 
being  present),  for  the  wilful  murder  of  George  Michael,  an  infant  of 
the  age  of  nine  months,  by  administering  poison.^ 

It  appeared  in  evidence  that  the  prisoner,  on  the  27th  day  of  March 
last,  delivered  to  one  Sarah  Stephens,  with  whom  the  child  was  at 
nurse,  a  quantity  of  laudanum,  about  an  ounce,  telling  the  said  Sarah 
Stephens  that  it  was  proper  medicine  for  the  child  to  take,  and  direct- 
ing her  to  administer  to  the  child  every  night  a  teaspoonful  thereof ; 
1  The  indictnient  is  omitted. 


SECT.  II.]  REGINA    V.    PITTS.  301 

that  such  a  quautity  as  a  teaspoonful  was  quite  sufficient  to  kill  a  child  ; 
and  that  the  prisoner's  intention,  as  shown  by  the  finding  of  the  jury, 
in  so  delivering  the  laudanum  and  giving  such  directions  as  aforesaid, 
was  to  kill  the  child. 

That  Sarah  Stephens  took  home  with  her  the  laudanum,  and  thinking 
the  child  did  not  require  medicine  had  no  intention  of  administering  it. 
She,  however,  not  intending  to  give  it  at  all,  left  it  on  the  mantelpiece 
of  her  room,  which  was  in  a  different  house  from  where  the  prisoner 
resided,  she,  the  prisoner,  then  being  a  wet  nurse  to  a  lady ;  and'^^pme 
days  afterwards,  that  is,  on  the  31st  of  March,  a  little  boy  of  the  said 
Sarah  Stephens,  of  the  age  of  five  years,  during  the  accidental  absence 
of  Sarah  Stephens,  who  had  gone  from  home  for  some  hours,  removed 
the  laudanum  from  its  place  and  administered  to  the  prisoner's  child 
a  much  larger  dose  of  it  than  a  teaspoonful,  and  the  child  died  in  con- 
sequence. 

The  jury  were  directed  that  if  the  prisoner  delivered  to  Sarah  Stephens 
the  laudanum,  with  intent  that  she  should  administer  it  to  the  child  and 
thereby  produce  its  death,  the  quantity  so  directed  to  be  administered 
being  sufficient  to  cause  death  ;  and  that  if  (the  prisoner's  original  in- 
tention still  continuing)  the  laudanum  was  afterwards  administered  by 
an  unconscious  agent,  the  death  of  the  child  under  such  circumstances 
was  murder  on  the  part  of  the  prisoner. 

They  were  directed  that  if  the  teaspoonful  of  laudanum  was  sufficient 
to  produce  death,  the  administration  by  the  little  boy  of  a  much  laro'er 
quantity  would  make  no  difference. 

The  jury  found  the  prisoner  guilty.  The  judgment  was  respited, 
that  the  opinion  of  the  judges  might  be  taken  whether  the  facts  above 
stated  constituted  an  administering  of  the  poison  by  the  prisoner  to 
the  deceased  child. 

This  case  was  considered  by  all  the  judges  (except  Gurn-et,  B.,  and 
Maule,  J.),  in  Easter  term,  1840,  and  they  were  unanimously  of  opinion 
that  the  conviction  was  right. 


REGIXA   V.   PITTS. 
Devonshire  Assizes.     1842. 
[Reported  1  C.  .V  M.  284.] 


Murder.  The  indictment  charged  the  prisoner  in  one  count  with 
having  caused  the  death  of  the  deceased  by  beating  and  wounding ;  in 
another  by  drowning :  in  other  counts,  the  death  was  alleged  to  have 
been  occasioned  by  the  deceased  in  slipping  and  falling  into  the  water, 
in  endeavouring  to  escape  from  an  assault  made  with  intent  to  commit 
murder,  and  from  an  assault  made  with  intent  to  commit  robbery. 


302 


REGINA   V.  MARTIN.  [CHAP.  V. 


The  body  of  the  deceased  was  found  in  the  river  at  Exeter,  and  it 
bore  marks  of  violence,  but  not  of  violence  sufficient  to  occasion  the 
death,  which  appeared  from  the  symptoms  to  have  been  produced  by 
drowning.  There  were  marks  of  a  struggle  on  the  ground,  and  the 
stick  and  gloves  of  the  deceased  were  discovered  at  no  great  distance 
on  the  ba^s  of  the  river,  but  in  a  place  from  which  it  was  impossible 
that  the  bodv  could  have  floated  to  the  spot  where  it  was  found.  The 
deceased  had  been  drinking  with  the  prisoner  and  another  person  on 
the  previous  evening,  and  had  been  seen,  at  a  late  hour,  followed  by 
both  in  a  suspicious  manner  towards  his  own  house.  When  the 
prisoner  was  apprehended,  the  deceased's  watch  was  found  upon  him, 
and  there  were  marks  of  blood  on  his  coat.  The  other  person  impli- 
cated in  the  transaction  was  admitted  queen's  evidence,  and  deposed  to 
the  fact,  that  they  two  had  inveigled  the  deceased  to  the  water's  edge ; 
that  the  prisoner  endeavoured  to  rob  him  ;  that  a  scuffle  took  place,  and 
that  the  prisoner  afterwards  told  him  that  he  had  pushed  the  deceased 
into  the  water. 

J:rskine,  J.  (in  summing  up).  — A  man  may  throw  himself  into  a 
river  under  such  circumstances  as  render  it  not  a  voluntary  act ;  by 
reason  of  force,  applied  either  to  the  body  or  the  mind.  It  becomes 
then  the  guilty  act  of  him  who  compelled  the  deceased  to  take  the  step. 
But  the  apprehension  must  be  of  immediate  violence,  and  well  grounded, 
from  the  circumstances  by  which  the  deceased  was  surrounded  ;  not  that 
you  must  be  satisfied  that  there  was  no  other  way  of  escape,  but  that  it 
was  such  a  step  as  a  reasonable  man  might  take.  Here,  all  the  circum- 
stances show  that,  even  if  the  deceased  did  throw  himself  into  the  river, 
it  must  have  been  from  circumstances  arising  out  of  a  scuffle  with  the 
prisoner  or  some  other  person,  or  from  apprehension  of  further  violence. 

The  prisoner  was  acquitted,  but  pleaded  guilty  to  an  indictment  for 
the  robber}'  of  the  watch. 


REGINA  V.   MARTIN. 

Court  for  Crowx  Cases  Reserved.    1881. 

[Reported  8  Q.  B.  D.  54  ] 

At  the  general  quarter  sessions  for  the  borough  of  Leeds,  held  on 
the  4th  of  July,  1881,  Edwin  Martin  was  tried  upon  an  indictment 
charging  that  he  did  unlawfully  and  maliciously  inflict  grievous  bodily 
harfn  upon  George  Pybus  against  the  form  of  the  statute,  etc.,  and,  b}' 
a  second  count,  that  he  did  unlawfully  and  maliciously  inflict  grievous 
bodily  harm  upon  Martin  Dace}'  against  the  form  of  the  statute,  etc. 

The  indictment  was  framed  on  the  20th  section  of  24  &  25  Vict, 
c.  100. 

The  evidence  for  the  prosecution  was  to  the  following  effect :  — 


S::CT.  II.]  •    REGINA  V.    MARTIN.  303 

The  galler}-  in  the  Theatre  Roj'al  at  Leeds  is  reached  from  the  street 
by  a  stone  staircase,  which  is  lighted  by  three  gaslights,  of  which  one 
is  at  the  top,  one  on  a  landing  about  the  middle,  and  the  third  over  the 
door  of  the  pa}'  office,  which  is  at  the  bottom  of  the  stairs.  These 
lights  are  all  fastened  to  the  walls  at  the  height  of  seven  feet  or  there- 
abouts above  the  stairs  or  landings.  Between  the  street  and  the 
bottom  of  the  staircase  there  are  a  pair  of  folding-doors  opening  out- 
wards into  the  street.  Each  of  these  doors  is  divided  into  halves,  of 
which  the  halves  nearest  to  the  door-posts  or  walls  on  each  side  can  be 
kept  closed  b\'  means  of  strong  iron  bars  let  into  sockets  in  the  stone- 
work of  the  staircase,  and  connected  with  the  doors  b}'  iron  bolts. 
These  bars  are  moveable.  The  practice  was  to  open  only  the  central 
halves  of  the  doors  whilst  the  audience  were  assembling  and  passing 
the  pay  office,  so  as  to  limit  the  number  of  those  who  could  pass  in  at 
the  same  time,  and  to  remove  the  iron  bars  and  open  the  whole  of  the 
doors  some  time  before  the  conclusion  of  the  performance,  so  as  to 
allow  the  audience  to  pass  out  into  the  street  more  quickl}-. 

It  was  proved  that  on  the  night  of  the  30th  of  April,  1881,  shortly 
before  the  conclusion  of  the  performance,  the  folding-doors  were 
opened  to  their  full  extent,  and  the  iron  bars  placed  against  the  wall  of 
the  staircase  to  the  right  hand  of  a  person  leaving  the  theatre,  and 
close  to  the  door,  according  to  the  usual  practice. 

The  evidence  shewed  that  the  gallery  on  this  night  was  filled  to  the 
extent  of  about  three-fourths  of  its  total  capacit}'. 

The  defendant  (who  was  well  acquainted  with  the  theatre,  having 
assisted  on  several  occasions  as  a  supernumerary)  was  proved  to  have 
been  in  the  gallery  on  this  night,  and  to  have  been  the  first,  or  almost 
the  first,  to  leave  it,  at  the  conclusion  of  the  performance.  It  was 
proved  that  he  ran  quickly  down  the  galler}'  staircase,  and  that  as  he 
did  so  he  reached  up  with  his  hand  and  put  out  the  gaslight  on  the 
middle  landing,  and  also  that  over  the  pay  office. 

It  was  also  proved  that  as  he  passed  out  into  the  street  he  took  one 
of  the  iron  bars  which  was  leaning  against  the  wall  close  to  the  door  on 
his  right  hand  side,  and  threw  it  or  placed  it  partly  across  the  doorwa}'. 
Almost  immediately  after  this  had  been  done  b^'  the  defendant  the 
whole  of  the  folding-doors  became  closed.  The  evidence  as  to  how  this 
occurred  was  extremel}-  vague.  The  result  however  of  the  doors  being 
closed  and  the  lower  lights  extinguished  was  to  leave  the  lower  part  of 
the  galler}'  stairs  in  almost  entire  darkness. 

Almost  immediately  after  the  lights  were  put  out,  a  panic  seized  the 
audience,  who  rushed  down  stairs  and  endeavoured  to  find  their  way 
into  the  street.  In  consequence  of  the  presence  of  the  iron  bar,  which 
the  defendant  had  placed  or  thrown  across  one  part  of  the  doorwa}*, 
and  of  the  doors  being  shut,  it  was  some  time  before  any  of  them  could 
reach  the  street,  and  in  the  meantime  the  pressure  from  behind  forced 
those  in  front  against  and  under  the  iron  bar  and  against  the  doors,  and 
a  large  number  of  persons  were  verj'  seriously  injured  and  had  to  be 


304  KEGINA   V.   MARTIN.  [CHAP.  V. 

removed  to  the  infirmary.  Amongst  those  injured  were  George  Pybus 
and  Martin  Daeey.  The  medical  evidence  was  to  the  effect  that  George 
Pybus  shewed  signs  of  fracture  of  the  base  of  the  skull,  which  was 
probably  caused  by  his  slipping  and  falling  backwards  as  he  was  run- 
ning down  the  stairs  after  the  gaslights  had  been  extinguished,  and  so 
striking  his  head  upon  the  stairs,  and  that  Martin  Dacey  was  suffering 
from  collapse,  the  result  of  partial  suffocation  arising  from  the  pressure 
to  which  he  had  been  subjected  in  the  crowd  on  or  at  the  foot  of  the 
stairs. 

It  was  clearly  proved  that  the  defendant  was  on  the  stage  of  the 
theatre  after  the  accident  assisting  the  injured  persons  who  had  been 
brouo-ht  there.  There  was  no  evidence  of  any  previous  quarrel  or  dis- 
pute between  him  and  the  managers  or  officials  of  the  theatre,  or 
between  him  and  any  person  in  the  gallery. 

The  defence  set  up  for  the  defendant  was  an  alibi. 

In  summing  up  the  evidence  to  the  jury  the  learned  Recorder  directed 
them  that  malice  was  an  essential  ingredient  in  the  offence  charged 
against  the  defendant,  and  intimated  to  them  that  if  they  were  of 
opinion  that  the  conduct  of  the  defendant  in  extinguishing  the  lights 
and  throwing  the  iron  bar  across  the  doorway  amounted  to  nothing 
more  than  a  mere  piece  of  foolish  mischief  they  might  acquit  him  ;  but 
that  if  they  believed  the  acts  were  done  with  a  deliberate  and  malicious 
intention  they  ought  to  convict. 

The  following  questions  were  left  to  the  jury : 

1.  Did  the  prisoner  extinguish  the  gaslights,  or  either  of  them? 

2.  Did  he  place  or  throw  the  bar  across  the  doorway  in  such  a 
manner  as  to  make  the  means  of  exit  more  difficult? 

3.  If  he  did  extinguish  the  lights  or  either  of  them,  did  he  do  so 
with  the  intention  of  causing  terror  and  alarm  in  the  minds  of  the 
persons  leaving  the  gallery? 

4.  If  he  did  throw  or  place  the  bar  across  the  doorwa}-,  did  he  do  so 
with  the  intention  of  wilfully  obstructing  the  means  of  exit  from  the 
gallery? 

5.  Were  Pybus  or  Dace}*,  or  either  of  them,  injured  by  reason  of 
any  of  the  acts  of  the  prisoner?  and  if  so  b}-  which  of  them? 

The  jury  found  the  defendant  guilty,  answered  the  first  four  questions 
in  the  affirmative,  and  stated  that  they  found  that  both  Pybus  and 
Dacey  were  injured  b}-  reason  of  each  of  the  acts  of  the  defendant 
mentioned  in  the  first  and  second  questions. 

The  question  for  the  consideration  of  the  Court  was,  whether  the 
defendant  was  properly  convicted  on  the  above  facts  and  finding  of 
the  jur}'. 

No  counsel  appeared. 

Lord  Coleridge,  C.  .J.  I  am  unable  to  entertain  any  doubt  as  to 
the  propriety  of  this  conviction.  The  prisoner  was  indicted  under  24 
&  25  Vict.  c.  100.  s.  20,  which  enacts  that  "  whosoever  shall  unlawfully 


SECT.  II.] 


BEATTY    V.    GILLBANKS. 


305 


and  maliciously  wound,  or  inflict  any  grievous  bodily  barm  upon  any 
otber  person,  eitber  witb  or  witbout  anj-  weapon  or  instrument,  shall 
be  guiltj-  of  a  misdemeanor,  etc." 

The  learned  judge  after  stating  the  facts,  continued  :  Upon  these 
facts  the  prisoner  was  convicted,  and  the  jury  found  all  that  was  neces- 
sary to  sustain  the  conviction.  The  prisoner  must  be  taken  to  have 
intended  the  natural  consequences  of  that  which  he  did.  He  acted 
"  unlawfully  and  maliciousl}-,"  not  that  he  had  any  personal  malice 
against  the  particular  individuals  injured,  but  in  the  sense  of  doing  an 
unlawful  act  calculated  to  injure,  and  by  which  others  were  in  fact 
injured.  Just  as  in  the  case  of  a  man  who  unlawfully  fires  a  gun 
among  a  crowd,  it  is  murder  if  one  of  the  crowd  is  thereby  killed.  The 
prisoner  was  most  properly  convicted. 

Field  and  Hawkins,  JJ.,  concurred. 

Stephen,  J.  I  am  entirely  of  the  same  opinion,  but  I  wish  to  add 
that  the  Recorder  seems  to  have  put  the  case  too  favourably  for  the 
prisoner,  for  he  put  it  to  the  jur\-  to  consider  whether  the  prisoner  did 
the  act  "  as  a  mere  piece  of  foolish  mischief."'  Now,  it  seems  to  rae, 
that  if  the  prisoner  did  that  which  he  did  as  a  mere  piece  of  foolish 
mischief  unlawfully  and  without  excuse,  he  did  it  ■•  wilfully,"'  that  is 
'"maliciously,"  within  the  meaning  of  the  statute.  I  think  it  important 
to  notice  this  as  the  word  '-  malicious  "  is  capable  of  being  misunder- 
stood. Lord  Blackburn  (then  Mr.  Justice  Blackburn)  in  the  cases  of 
Reg.  v.  "Ward,  Law  Rep.  1  C.  C.  R.  356,  360,  and  Reg.  r.  PembMton, 
Law  Rep.  2  C.  C.  R.  119,  122,  lays  it  down  that  a  man  acts  "mali- 
ciously '"'  when  he  wilfully  and  without  lawful  excuse  does  that  which 
he  knows  will  injure  another. 

Caye,  J.,  concurred.        ,  ■    .  Conviction  affimned. 


^> 


BEATTY    v.  GILLBANKS. 

Queen's  Bench  Division.     1882. 

[Reported  15  Cox,  C.  C.  138.] 

Field,  J.'^  I  am  of  opinion  that  this  order  cannot  be  supported,  and 
must  therefore  be  discharged.  The  appellants,  it  appears,  together 
with  a  large  number  of  other  people,  belong  to  a  body  of  persons  called 
the  Salvation  Army,  who  are  associated  together  for  a  purpose  which 
cannot  be  said  to  be  otherwise  than  lawful  and  laudable,  or  at  all  events 
cannot  be  called  unlawful,  their  object  and  intention  being  to  induce  a 
class  of  persons  who  have  little  or  no  knowledge  of  religion  and  no  taste 
or  disposition  for  religious  exercises  or  for  going  to  places  of  worship, 
to  join  them  in  their  processions,  and  so  to  get  them  together  to  attend 
and  take  part  in  their  religious  exercises,  in  the  hope  that  they  may  be 
reclaimed  and  drawn  away  from  vicious  and  irreligious  habits  and 
courses  of  life,  and  that  a  kind  of  revival  in  the  matter  of  religion 

1  The  opinion  of  Field,  J.,  only  is  printed.  Cave,  J.,  delivered  a  concurring 
opinion.  2o 


306 


BEATTY   V.    GILLBANKS. 


[chap.  V, 


^ 


^ 


<?! 


may  be  brought  about  amongst  those  who  were  previously  dead  to  any 
such  influences.    That  undoubtedly  is  the  object  of  the  Salvation  Army 
and  of  the  appellants,  and  no  other  object  or  intention  has  been  or 
can  be  imputed  to  them  ;  and,  as  has  been  said  by  their  learned  coun- 
sel, and  doubtless  with  perfect  truth,  so  far  are  they  from  desiring  to 
carry  out  that  object  by  means  of  any  force  or  violence,  their  principles 
are  directly  and  entirely  opposed  to  any  conduct  of  that  kind,  or  to  the 
exercise  or  employment  of  anything  like  physical  force  ;  and,  indeed, 
it  appears  tliat  on  the  occasion  in  question  they  used  no  personal  force 
or  violence,  but,  on  the  contrary,  when  arrested  by  the  police,  tliey 
submitted  quietly  without  the  exhibition  of  any  resistance  either  ou 
their  own  parts  or  on  that  of  any  other  member  of  their  body.     Such 
being  their  lawful  object  and  intention,  and  having  no  desire  or  inten- 
tion of  using  force  or  violence  of  any  kind,  it  appeared  that  on  this 
26th  day  of  March  they  assembled,  as  they  had  previously  done  on 
otlier  occasions,  in  considerable  numbers  at  their  hall,  and  proceeded 
to  march  thence  in  procession  through  the  streets  of  the  town  of  Weston- 
super-Mare.     Now  that,  in  itself,  was  certairdy  not  an  unlawful  thing 
to  do,  nor  can  such  an  assembly  be  said  to  be  an  unlawful  one.    Numer- 
ous instances  might  be  mentioned  of  large  bodies  of  persons  assembling 
in  much  larger  numbers,  and  marching,  accompanied  by  banners  and 
bands  of  music,  through  the  public  streets,  and  no  one  has  ever  doubted 
that  such  processions  were  perfectly  lawful.     Now  the  appellants  com- 
plain that,  for  Imving  so  assembled  as  I  liave  before  stated,  they  have 
been  adjudged  guilty  of  the  offence  of  holding  an  unlawful  assembly, 
and  have  in  consequence  been  ordered  to  find  sureties  to  keep  the  peace, 
ill  the  absence  of  any  evidence  of  their  having  broken  it.     It  was  of 
course  necessary  that  the  justices  should  find  that  some  unlawful  act 
had  been  committed  by  the  appellants  in  order  to  justify  the  magis- 
trates in  binding  them  over.     The  offence  charged  against  them  is 
"  unlawfully  and  tumultuously  assembling  with  others  to  the  disturb- 
'ance  of  the  public  peace,  and  against  the  peace  of  the  Queen  ; "  and  of 
course,  before  they  can  be  convicted  upon  the  charge,  clear  proof  must 
be  adduced  that  the  specific  offence  charged  has  been  committed.    Now, 
was  that  charge  sustained?     There  is  no  doubt  that  the  ai)pellants 
did  assemble  together  with  other  persons  in  great  numbers,  but  that 
alone  is  insufficient.    The  assembly  must  be  a  "  tumultuous  assembly  " 
and  "against  the  peace,"  in  order  to  render  it  an  unlawful  one.     But 
tlieie  was  nothing,  so  far  as  the  appellants  were  concerned,  to  show  that 
their  conduct  was  in  the  least  degree  "tumultuous"  or  "  against  the 
peace."    All  that  they  did  was  to  assemble  together  to  walk  through 
the  town  ;  and  it  is  admitted  by  the  learned  counsel  for  the  respondent, 
that  as  regards  the  appellants  themselves,  there  was  no  disturbance  of 
the  peace,  and  that  their  conduct  was  quiet  and  peaceable.     But  then 
it  is  argued  that,  as  in  fact  their  line  of  conduct  was  the  same  as  had 
on  previous  similar  occasions  led  to  tumultuous  and  riotous  proceed- 
ings with  stone-throwing  and  fighting,  causing  a  disturbance  of  the 


SECT.  11.]  BEATTY   V.   GILLBANKS.  307 

public  peace  and  terror  to  the  inhabitants  of  the  town,  and  as  on  the 
present  occasion  like  results  would  in  all  probability  be  produced, 
therefore  the  appellants,  being  well  aware  of  the  likelihood  of  such 
results  again  occurring,  were  guilty  of  the  offence  charged  against 
them.  Now,  without  doubt,  as  a  general  rule  it  must  be  taken  that 
every  person  intends  what  are  the  natural  and  necessary  consequences 
of  his  own  acts  ;  and  if  in  the  present  case  it  had  been  their  intention, 
or  if  it  had  been  the  natural  and  necessary  consequence  of  their  acts, 
to  produce  the  disturbance  of  the  peace  which  occurred,  then  the  appel- 
lants would  have  been  responsible  for  it,  and  the  magistrates  would 
have  been  right  in  binding  them  over  to  keep  the  peace.  But  the  evi- 
dence as  set  forth  in  the  case  shows  that,  so  far  from  that  being  the 
case,  the  acts  and  conduct  of  the  appellants  caused  nothing  of  the 
kind,  but  on  tlie  contrary,  that  the  disturbance  that  did  take  place  was 
caused  entirely  by  the  unlawful  and  imjustifiable  interference  of  the 
Skeleton  Army,  a  body  of  persons  opposed  to  the  religious  views  of 
the  appellants  and  the  Salvation  Army,  and  that  but  for  the  opposition 
and  molestation  offered  to  the  Salvationists  by  these  other  persons,  no 
disturbance  of  any  kind  would  have  taken  place.  The  appellants  were 
guilty  of  no  offence  in  their  passing  through  the  streets,  and  why  should 
other  persons  interfere  with  or  molest  them?  What  right  had  they  to 
do  so?  If  they  were  doing  anything  unlawful,  it  was  for  the  magis- 
trates and  police,  the  appointed  guardians  of  law  and  order,  to  inter- 
pose. The  law  relating  to  unlawful  assemblies,  as  laid  down  in  the 
books  and  the  cases,  affords  no  support  to  the  view  of  the  matter  for 
which  the  learned  counsel  for  the  respondent  was  obliged  to  contend, 
viz.,  that  persons  acting  lawfully  are  to  be  held  responsible  and  pun- 
ished merely  because  other  persons  are  thereby  induced  to  act  unlaw- 
fully and  create  a  disturbance.  In  1  Russell  on  Crimes  (4th  edit.  p. 
387),  an  unlawful  assembly  is  defined  as  follows  :  "An  unlawful  assem- 
bly, according  to  the  common  opinion,  is  a  disturbance  of  the  peace 
by  persons  barely  assembling  together  with  the  intention  to  do  a  thing 
which,  if  it  were  executed,  would  make  them  rioters,  but  neither  actually 
executing  it  nor  making  a  motion  towards  the  execution  of  it."  It  is 
clear  that,  according  to  this  definition  of  the  offence,  the  appellants* 
were  not  guilty ;  for  it  is  not  pretended  that  they  had,  but,  on  the  con- 
trary, it  is  admitted  that  they  had  not,  any  intention  to  create  a  riot, 
or  to  commit  any  riotous  or  other  unlawful  act.  Many  examples  of 
what  are  unlawful  assemblies  are  given  in  Hawkins'  Pleas  of  the  Crown, 
book  1,  cap.  28,  ss.  9  and  10,  in  all  of  which  the  necessary  circum- 
stances of  terror  are  present  in  the  assembly  itself,  either  as  regards 
the  object  for  which  it  is  gathered  together,  or  in  the  manner  of  its 
assembling  and  proceeding  to  carry  out  that  object.  The  present  case, 
however,  differs  from  the  cases  there  stated  ;  for  here  the  only  terror 
that  existed  was  caused  by  the  unlawful  resistance  wilfully  and  design- 
edly offered  to  the  proceedings  of  the  Salvation  Army  by  an  unlawful 
organization  outside  and  distinct  from  them,  called  the  Skeleton  Army. 


_^  V  ^      ^^-^f  WISE   V.   DUNNING.  [CHAP.  V. 

It  was  suo-o-ested  by  the  respoudeut's  counsel  that  if  these  Salvation 
processions  were  allowed,  similar  opposition  would  be  offered  to  them 
in  future,  and  that  similar  disturbances  would  ensue.  But  I  cannot 
believe  that  that  will  be  so.  I  hope,  and  I  cannot  but  think,  that  when 
the  Skeleton  Army,  and  all  other  persons  who  are  opposed  to  the  pro- 
ceedings of  the  Salvation  Army,  come  to  learn,  as  they  surely  will 
learn,  that  they  have  no  possible  right  to  interfere  with  or  in  any 
way  to  obstruct  the  Salvation  Army  in  their  lawful  and  peaceable  pro- 
cessions, they  will  abstain  from  opposing  or  disturbing  them.  It  is 
usual,  happily,  in  this  country  for  people  to  respect  and  obey  the  law 
when  once  declared  and  understood,  and  I  hope  and  have  no  doubt 
that  it  will  be  so  in  the  present  case.  But  if  it  should  not  be  so,  there 
is  no  doubt  that  the  magistrates  and  police,  both  at  AYeston-super- 
Mare  and  everywhere  else,  will  understand  their  duty  and  not  fail  to 
do  it  efficiently,  or  hesitate,  should  the  necessity  arise,  to  deal  with 
the  Skeleton  Army  and  other  disturbers  of  the  public  peace  as  they 
did  in  the  present  instance  with  the  appellants  ;  for  no  one  can  doubt 
that  the  authorities  are  only  anxious  to  do  their  duty  and  to  prevent  a 
disturbance  of  the  public  peace.  The  present  decision  of  the  justices, 
however,  amounts  to  this,  that  a  man  may  be  punished  for  acting  law- 
fully if  he  knows  that  his  so  doing  may  induce  another  man  to  act 
unlawfully,  —  a  proposition  without  any  authority  whatever  to  support 
it.  Under  these  circumstances,  the  questions  put  to  us  by  the  justices 
must  be  negatively  answered,  and  the  order  appealed  against  be  dis- 
charged. 


i 


jP 


i 


^ 


WISE   V.  DUNNING. 
High  Court  of  Justice,  King's  Bench  Division.     1902. 

[Reported  1902,  1  K.  B.  167.] 

Lord  Alverstonk,  C.  J.  This  is  a  case  stated  by  way  of  appeal 
from  an  order  made  by  the  stipendiaiy  magistrate  of  Liverpool  bind- 
ing over  the  appellant  "to  be  of  good  behaviour."  The  recogniz- 
ance also  bound  him  over  "  to  keep  the  peace"  ;  but  the  actual  form 
of  it  is  not  material  because  it  contained  the  words  "to  be  of  good 
behaviour."  The  case  has  been  extremely  well  argued.  I  am  of 
opinion  that  the  magistrate  was  perfectly  justified  in  putting  the  ap- 
pellant under  recognizances.  It  is  not  necessaiy  to  go  at  great  length 
into  the  various  authorities  which  were  cited  to  us  ;  I  am  not  able  to 
find  in  those  authorities  any  statement  of  a  rule  of  law  which  is  to  be 
applied  in  all  such  cases  as  this.  The  difficulty  arises  from  attempts 
to  apply  the  law  to  particular  states  of  circumstances,  for  it  is  obvious 
that  different  people  may  express  different  opinions  as  to  what  ought  to 
have  been  the  application  of  the  law  under  particular  circumstances. 
For  instance,  our  attention  was  called  to  the  opinion  of  a  very  learned 


SECT.  II.]  WISE    V.    DUNNING.  309 

law3-er  and  writer,  Mr.  Dicey,  with  respect  to  Beatty  v.  Gillbanks,  9  Q. 

B.  D.  308,  and  his  opinion,  as  I  understood  the  passage  when  read,  was 
that  the  view  taken  by  the  Irish  courts  is  in  conflict  with  that  taken  bv 
Field,  J.,  and  Cave,  J.,  in  tliat  case.  But  I  think  that,  when  Beatty  v. 
Gillbanks,  supra,  is  closely  examined,  it  lays  down  no  law  inconsistent 
with  anything  stated  by  the  judges  in  the  Irish  cases.  For  this  purpose 
it  is  sufficient  to  cite  the  following  passages.  In  Beatty  v.  Gillbanks, 
siqyra^  Field,  J.,  said,  stating,  I  think,  the  law  with  absolute  accuracy : 
"  Now  T  entirely  concede  that  every  one  must  be  taken  to  intend  the 
natural  consequences  of  his  own  acts,  and  it  is  clear  to  me  that  if  this 
disturbance  of  the  peace  was  the  natural  consequence  of  acts  of  the 
appellants  they  would  be  liable,  and  the  justices  would  have  been  right 
in  binding  them  over.  But  the  evidence  set  forth  in  the  case  does  not 
support  this  contention."  O'Brien,  C.  J.,  in  Reg.  v.  Justices  of  London- 
derry, 28  L.  R.  Ir.  at  p.  447,  said  :  "  No  act  on  the  part  of  any  person 
was  proved  to  shew  that  it  was  reasonably  probable  that  the  conduct  of 
the  defendants  would,  on  the  day  in  question,  have  provoked  a  breach 
of  the  peace."  It  is,  in  my  opinion,  important  to  emphasize  that  enun- 
ciation of  the  necessary  test,  because  it  has  been  pressed  upon  us  by  the 
appellant's  counsel  that  if  the  appellant  did  not  intend  to  act  unlawfully 
himself,  or  to  induce  other  persons  to  act  unlawfully,  the  fact  that  his 
words  might  have  led  other  people  so  to  act  would  not  be  sufficient. 

In  Reg.  V.  Justices  of  Cork,  15  Cox,  C.  C.  78,  at  p.  84,  May,  C.  J., 
after  quoting  the  passage  from  Blackstone  which  was  read  to  us  during 
the  argument,  proceeded  :  "  This  requisition  of  sureties  must  be  under- 
stood rather  as  a  caution  against  the  repetition  of  the  offence  than  any 
immediate  pain  or  punishment.  Tliis  caution  is  such  as  is  intended 
merely  for  prevention  without  any  crime  actually  committed  by  the 
party,  but  arising  only  from  a  probable  suspicion  that  some  crime 
is  intended  or  likely  to  happen,  and  consequently  it  is  not  meant  as 
any  degree  of  punishment,  unless  perhaps  for  a  man's  imprudence  in 
giving  just  ground  for  apprehension."  Again,  in  the  second  case  of 
Reg.  V.  Justices  of  Cork,  15  Cox,  C.  C.  149,  reported  in  the  same  vol- 
ume, Fitzgerald,  J.,  after  referring  to  the  authorities,  said,   15  Cox, 

C.  C.  at  p.  155:  "Without  citing  further  authority  we  may  assume 
that  where  it  shall  be  made  reasonably  to  appear  to  a  justice  of  the 
peace  that  a  person  has  incited  others  b}-  acts  or  language  to  a  viola- 
tion of  law  and  of  right,  and  that  there  is  reasonable  ground  to  believe 
that  the  delinquent  is  likely  to  persevere  in  that  course,  such  justice 
has  authorit}'  b}-  law,  in  the  execution  of  preventive  justice,  to  provide 
for  the  public  securitj'  by  requiring  the  individual  to  give  securities  for 
good  behaviour,  and  in  default  commit  him  to  prison."  I  have  referred 
to  those  cases,  not  for  the  purpose  of  endeavosring  to  deduce  from  them 
any  now  rule  of  law,  but  for  the  purpose  of  pointing  out  that,  in  a 
number  of  cases  and  before  different  judges,  what  I  ma}-  call  the  essen- 
tial condition  has  been  stated,  substantiall}-  in  the  same  way  though  in 
different  language,  that  there  must  be  an  act  of  the  defendant,   the 


310  WISE   V.    DUNNING.  [CHAP.  V. 

natural  consequence  of  which,  if  his  act  be  not  unlawful  in  itself,  would 
be  to  produce  an  unlawful  act  by  other  persons.  This  case  mipjht  really 
be  put  higher,  but  1  have  so  far  dealt  with  the  matter  assumiug  the 
facts  in  favour  of  the  argument  of  the  counsel  for  the  appellant.  I 
think  that  the  local  Act,  to  which  we  were  referred,  has  a  very  impor- 
tant bearing  on  this  case.  It  provides  that  any  person  who  uses  any 
threatening,  or  abusive,  or  insulting  words  or  behaviour  with  intent  to 
provoke  a  breach  of  the  peace  (which  is  not  this  case),  or  whereby  a 
breach  of  the  peace  may  be  occasioned,  may  be  summoned  before  the 
local  magistrates  and  fined.  It  was  contended  for  the  appellant  that 
the  Act  was  only  intended  to  prevent  persons  from  using  bad  lan- 
guage in  the  streets  of  Liverpool  with  impunitv.  Though  that  may 
have  been  one  of  the  evils  which  the  Act  aimed  at,  I  do  not  think  that 
its  scope  was  so  limited.  Here  we  have  distinct  findings  of  facts  that 
the  appellant  held  a  number  of  meetings  in  the  public  streets  ;  that  the 
highways  were  blocked  by  crowds  numbering  thousands  of  persons  ; 
that  very  serious  contests  and  breaches  of  the  peace  had  arisen,  and  that 
the  appellant  himself  used,  with  respect  to  a  large  bod}'  of  persons  of  a 
different  religion,  language  which  the  magistrate  has  found  to  be  of 
a  most  insulting  character,  and  that  the  appellant  challenged  any  one 
of  them  to  get  up  and  deny  his  statements.  JMagislrates  are  only 
doing  their  duty  when  the}-  have  regard  to  and  make  themselves 
acquainted  with  the  character  of  the  population  amongst  whom  they 
have  to  administer  justice  ;  and,  in  considering  the  natural  consequence 
of  a  man's  acts  who  has  used  insulting  language  in  the  public  streets 
towards  persons  of  a  particular  religion,  the  magistrates  are  bound  to 
take  into  consideration  the  fact  that  there  is  a  large  body  of  those  per- 
sons in  the  town.  The  appellant  also  was  proved  to  have  stated,  with 
respect  to  a  meeting  he  intended  to  hold,  that  he  had  received  a  letter 
informing  him  that  the  Catholics  were  going  to  bring  sticks,  and  he 
told  his  supporters  that  the -police  had  refused  to  give  him  protection, 
and  he  said  that  he  looked  to  them  for  protection.  On  these  facts  I 
think  no  one  could  reasonably  doubt  that  the  police  and  the  magistrate 
were  right  in  thinking  that  his  language  and  conduct  went  very  far 
indeed  towards  inciting  people  to  commit,  or  was,  at  any  rate,  lan- 
guage and  behaviour  likely  to  occasion,  a  lireach  of  the  peace.  It  may 
be  true  that,  if  this  case  were  to  be  considered  with  reference  only  to 
any  particular  one  of  the  threats  or  illegalities  which  it  is  suggested  the 
appellant  has  committed,  further  evidence  would  have  been  necessary ; 
but  in  my  opinion,  there  was  abundant  evidence  to  shew  that  in  the 
public  streets  he  had  used  language  which  had  caused  an  obstruction, 
which  was  abusive,  which  did  tend  to  bring  about  a  breach  of  the 
peace,  and  that  he  threatened  and  intended  to  do  similar  acts  in  another 
place.  The  fact  that  he  had  promised  not  to  hold  a  meeting  at  one 
place,  but  had  held  it  within  a  quarter  of  a  mile  of  that  place  on  the 
same  day,  shews,  at  any  rate,  that  the  magistrate  was  justified  in 
taking  precautions  to  prevent  a  repetition  of  his  previous  conduct. 


SECr.  II.]  WISE  V.  DUNNING,  311 

Further,  I  think  that  the  information  was  sufficient  to  justify  the 
magistrate  in  hearing  the  evidence,  and  that  any  omission  in  the  lan- 
guage of  the  information,  although  it  does  allege  meetings  on  the  high- 
way and  fear  of  a  breach  of  the  peace,  was  amply  cured  by  the  evidence 
which  was  given.  The  magistrate  heard  the  information  ;  the  appel- 
lant was  represented  by  a  solicitor,  and  elected  to  give  no  evidence. 
Instead  of  being  punished,  he  was  properly  bound  over  to  keep  the 
peace.  I  am  of  opinion  that  the  magistrate  acted  within  his  jurisdic- 
tion, and  quite  rightly  ;  that  the  points  of  law  raised  on  behalf  of  the 
appellant  fail,  and  that  our  judgment  should  be  for  the  respondent. 

Darling,  J.  I  am  of  the  same  opinion.  I  think  it  necessary'  to 
summarize  shortly  the  facts  which  were  proved  before  the  magistrate. 
To  begin  with,  we  have  the  appellant's  own  description  of  himself. 
He  calls  himself  a  "  crusader,"  who  is  going  to  preach  a  Protestant 
crusade.  In  order  to  do  this  he  supplied  himself  with  a  crucifix,  which 
he  waved  about,  and  round  his  neck  were  hung  beads  —  obviously  de- 
signed to  represent  the  rosaries  used  by  Roman  Catholics.  Got  up  in 
this  way  he  admittedly  made  use  of  expressions  most  insulting  to  the 
faith  of  the  Roman  Catholic  population  amongst  whom  he  went.  There 
had  been  disturbances  and  riots  caused  by  this  conduct  of  his  before, 
and  the  magistrate  has  found  that  the  language  of  the  appellant  was 
provocative,  and  that  it  was  likely  to  occur  again.  Large  crowds  had 
assembled  in  the  streets,  and  a  serious  riot  was  only  prevented  bv  the 
interference  of  the  police.  Now,  what  was  the  natural  consequence  of 
the  appellant's  acts?  It  was  what  has  happened  over  and  over  again, 
what  has  given  rise  to  all  the  cases  which  were  cited  to  us,  and  what 
must  be  the  inevitable  consequence  if  persons,  whether  Protestants  or 
Catholics,  are  to  be  allowed  to  outrage  one  another's  religion  as  the 
appellant  outraged  the  religion  of  the  Roman  Catholics  of  Liverpool. 
The  kind  of  person  whicli  the  evidence  here  shews  the  appellant  to  be 
I  can  best  describe  in  the  language  of  Butler.     He  is  one  of 

"...  that  stubborn  crew 
Of  errant  .saints,  whom  all  men  grant 
To  be  the  true  Church  Militant ; 

A  sect,  whose  chief  devotion  lies 

In  odd  perverse  antipathies."  —  Hudibras,  Pt.  I. 

In  my  view,  the  natural  consequence  of  those  people's  conduct  has  been 
to  create  the  disturbances  and  riots  which  have  so  often  given  rise  to 
this  sort  of  case.  Counsel  for  the  appellant  contended  that  the  natural 
consequence  must  be  taken  to  be  the  legal  acts  whicli  are  a  consequence. 
I  do  not  think  so.  The  natural  consequence  of  such  conduct  is  illegal- 
ity. I  think  that  the  natural  consequence  of  this  "  crusader's  "  elo- 
quence has  been  to  produce  illegal  acts,  and  that  from  his  acts  and 
conduct  circumstances  have  arisen  which  justified  the  magistrate  in 
binding  him  over  to  keep  the  peace  and  be  of  good  behaviour.     In  the 


312 


MaSE   V.   DUNNING  [CHAP.   V. 


judgment  of  O'Brien,  C.  J.,  in  Reg.  v.  Justices  of  Londonderry,  supra, 
there  is  this  passage :  "  Now  I  wish  to  make  the  ground  of  my  judgment 
clear,  and  carefully  to  guard  against  being  misunderstood.  I  am  per- 
fectly satisfied  that  the  magistrates  did  not  make  the  order  which  is 
impugned  by  reason  of  there  having  been,  or  there  being  likely  to  be, 
any  obstruction  of  the  highway,  and  that  the  true  view  of  what  took 
place  is  that  the  defendants  were  bound  over  in  respect  of  an  appre- 
hended breach  of  the  peace  ;  and,  in  my  opinion,  there  was  no  evidence 
to  warrant  that  apprehension."  It  is  clear  that  if  there  had  been  evi- 
dence to  warrant  that  apprehension,  the  Chief  Justice  would  have  held 
the  magistrates'  decision  in  that  case  to  be  right.  It  is  said  that  Beatty 
V.  Gillbanks,  supra,  is  in  conflict  with  tliat  decision.  I  am  not  sure  that 
it  is.  I  am  inclined  to  think  that,  having  regard  to  the  passage  which 
my  Lord  read  from  Field,  J.'s,  judgment  in  Beatty  v.  Gillbanks,  supra, 
the  whole  question  is  one  of  fact  and  evidence.  But  I  do  not  hesitate 
to  say  that,  if  there  be  a  conflict  between  these  two  cases,  I  prefer  the 
law  as  it  is  laid  down  in  Reg.  v.  Justices  of  Londonderry,  28  L.  R.  Ir. 
440.  If  that  be  a  right  statement  of  the  law,  as  I  think  it  is,  the  magis- 
trate was  perfectly  justified  in  coming  to  the  conclusion  he  did  come  to 
in  this  case,  even  without  taking  into  consideration  the  question  of  the 
local  Act  of  Parliament  to  which  we  were  referred. 

For  these  reasons  I  am  of  opinion  that  the  magistrate's  order  was 
right. 

Channell,  J.  I  am  of  the  same  opinion.  I  agree  with  the  proposi- 
tion for  which  counsel  for  the  appellant  contended  —  namely,  that  the 
law  does  not  as  a  rule  regard  an  illegal  act  as  being  the  natural  conse- 
quence of  a  temptation  which  may  be  held  out  to  commit  it.  For  in- 
stance, a  person  who  exposes  his  goods  outside  his  shop  is  often  said  to 
tempt  people  to  steal  them,  but  it  cannot  be  said  that  that  is  the  natural 
consequence  of  what  he  does.  Again,  the  House  of  Lords  has  recently 
held  that,  where  a  blank  space  is  left  in  a  cheque  which  enables  a 
person  to  increase  the  amount  by  adding  figures,  it  is  not  the  natural 
consequence  that  somebody  should  be  led  to  commit  forgery  by  writing 
figures  into  the  cheque.  The  pro|)osition  is  correct  and  really  familiar  ; 
but  I  think  tlie  cases  with  respect  to  apprehended  breaches  of  the  peace 
shew  that  the  law  does  regard  the  infirmit}'  of  human  temper  to  the 
extent  of  considering  that  a  breach  of  the  peace,  although  an  illegal  act, 
may  be  the  natural  consequence  of  insulting  or  abusive  language  or 
conduct.  Possibly  this  is  an  exception  to  the  rule  which  the  appellant's 
counsel  pointed  out  to  us ;  but  I  think  it  is  quite  clearly  made  out  upon 
the  cases  which  have  been  cited  to  us. 

I  therefore  think  that  the  decision  of  the  magistrate  was  right. 

Judgment  for  the  Respondent. 


SECT.  II.]  REX    V.    DE   MARNY.  313 

n^ 

REX  V.   DE  MARNY. 

Court  for  Crown  Cases  Reserved.     1906. 
[Reported  1907,  1  K.  iB.  388.] 

Case  stated  for  the  opinion  of  the  Court  for  the  Consideration  of 
Crown  Cases  Reserved  b}'  the  Common  Serjeant. 

The  defendant  was  tried  at  the  Central  Criminal  Court  on  an  indict- 
ment charging  him  in  several  counts  with  selling  and  publishing,  and 
causing  and  procuring  to  be  sold  and  published  by  certain  named 
persons,  divers  obscene  books,  papers,  and  photographs.  The  indict- 
ment also  contained  a  series  of  counts  charging  him  with  sending,  and 
causing  and  procuring  to  be  sent  b}'  certain  named  persons,  certain 
postal  packets  containing  obscene  books,  papers,  and  photographs  con- 
trary to  the  Post  Office  (Protection)  Act,  1884  (47  &  48  Vict.  c. 
76),  s.  4. 

It  was  proved  that  the  defendant  was  the  editor  of  a  newspaper 
culled  Judy^  and  that  he  inserted  and  published  in  that  newspaper  ad- 
vertisements of  several  persons  in  England  and  abroad,  offering  for 
sale  booics,  catalogues,  and  photographs.  The  chief  inspector  of 
police  wrote  to  the  addresses  given  in  the  advertisements  and  received 
in  return  from  the  persons  or  firms  mentioned  in  the  indictment,  who 
weVe  all  resident  abroad,  postal  packets  containing  books,  catalogues, 
and  photographs  of  the  most  obscene  character.  The  defendant  had 
been  warned  several  times  by  the  police  authorities  that  the  books, 
photographs,  and  other  things  advertised  in  his  paper  in  the  same 
terras  and  by  the  same  persons  were  of  an  obscene  character,  and  that 
one  of  the  persons  so  advertising  in  his  newspaper  had  been  convicted 
for  selling  and  publishing  obscene  libels.  Counsel  for  the  defendant 
submitted  that  there  was  no  evidence  to  go  to  the  jur}-  that  the  defend- 
ant took  part  in  or  aided  and  abetted  the  selling  and  publishing  of 
obscene  libels  as  charged  in  the  indictment. 

The  Common  Serjeant  held  that  there  was  evidence,  and  directed  the 
jury  that  if  they  were  satisfied  that  the  books  and  photographs  sent  to 
the  police  inspector  in  pursuance  of  the  advertisements  were  obscene, 
and  that  the  defendant  knew  at  the  time  he  published  the  advertise- 
ments that  they  were  advertisements  for  the  sale  of  obscene  literature 
and  photographs,  and  that  by  the  publication  of  these  advertisements 
he  brought  about  the  sale  and  transmission  to  the  inspector  of  the 
books  and  photographs,  they  ought  to  convict  the  defendant,  although 
he  did  not  know  the  actual  contents  of  the  books  or  the  details  of  the 
photographs  sent,  and  that  in  judging  of  the  defendant's  knowledge 
they  might  consider  not  only  the  evidence  of  the  express  warnings 


314  REX    V.   DE   MARNY.  [CHAP.  V. 

given  to  the  defendant  and  the  wording  of  each  advertisement,  but  also 
the  other  advertisements  appearing  in  the  same  issue  of  the  paper. 

The  jury  found  the  defendant  guilty  on  all  counts. 

The  question  for  the  opinion  of  the  Court  was  whether  the  conviction 
was  right  on  all  or  any  of  the  counts  of  the  indictment, 

Avory,  K.  C,  and  J.  F.  Grain,  for  the  defendant.  The  conviction 
cannot  stand.  If  the  defendant  is  guilty,  he  is  guilty  of  aiding  and 
abetting  the  sale  and  publication  of  the  indecent  literature,  and,  the 
offence  being  a  misdemeanour,  he  is  liable  to  be  indicted  as  a  principal 
in  the  second  degree;  but  the  real  vendors,  who  are  the  principals  in 
the  first  degree,  are  all  foreigners  resident  abroad,  and  they  committed 
no  offence  against  the  English  law  in  sending  indecent  literature  to  this 
country.  If  the  act  done'by  the  principal  in  the  first  degree  is  one 
for  which  he  could  not  be  convicted,  it  follows  that  the  principal  in 
the  second  degree  has  been  guilty  of  no  offence.  Further,  by  publish- 
ing the  advertisements  the  defendant  cannot  be  said  to  have  procured 
in  the  legal  sense  the  publication  of  the  books  sold,  any  more  than  a 
sandwich-man  who  advertises  the  performance  of  a  stage  play  in 
a  music-hall  commits  the  offence  of  procuring  the  illegal  representation 
of  a  stage  play.  Reliance  is  placed  by  the  prosecution  on  tlie  fact  that 
the  defendant  knew  that  the  advertisements  related  to  obscene  matter, 
but  that  knowledge  is  not  evidence  that  he  aided  and  abetted  or  pro- 
cured the  sale  of  the  particular  things  specified  in  tlie  indictment.  In 
other  words,  the  insertion  of  the  advertisements,  though  it  ma}-  have 
assisted  the  sale  in  a  commercial  sense,  is  legally  too  remote  f^'om  the 
commission  of  the  ofl'ence  to  constitute  the  editor  of  the  newspaper  an 
aider  or  abettor  in  the  offence. 

H.  D.  Mair  and  L.  W.  Kershaic,  for  the  prosecution.  It  is  a 
fallacy  to  say  that  the  principals  in  the  first  degree  in  this  case  have 
committed  no  offence.  The  person  abroad,  whether  a  foreigner  or  not, 
who  through  his  innocent  agent,  the  postman,  causes  the  publication 
of  indecent  literature  in  this  countrj-  commits  an  offence  against  the 
law  of  England,  and,  if  he  came  within  the  jurisdiction,  could  be  con- 
victed :  Rex  V.  Oliphant,  [1905]  2  K.  I>.  67.  The  act  of  sending  the 
books  and  photographs  through  the  post  is  one  continuous  act,  one 
portion  of  which  is  performed  b}-  the  foreigner  abroad  and  another  b}' 
the  postman  in  England,  but  the  act  of  sending  continues  right  up  to 
the  moment  of  delivery.  In  Rex  v.  Burdett,  (1820)  1  St.  Tr.  (N.  S.) 
1,  at  pp.  114,  115;  4  B.  &  Aid.  95,  where  a  libel  was  written  by  the 
defendant  in  one  county  and  delivered  by  the  postal  authorities  in 
another,  it  was  held  that  there  was  a  publication  by  the  defendant 
in  the  latter  county  ;  and  at  the  date  of  that  decision  the  same  question 
arose  as  between  different  counties  as  now  arises  between  England  and 
a  foreign  countr}-.  Then,  is  there  any  evidence  that  the  defendant 
aided  and  abetted  or  procured  the  sale  or  publication  within  s.  8  of  the 
Aiders  and  Abettors  Act.  1861  (24  &  25  Vict.  c.  94)  ?     The  foreigner 


SECT.  II.]  •         KEX    V.    DE   MARNY.  315 

abroad  desires  to  get  customei-s  in  England.  He  can  do  so  eitlier  by 
employing  an  agent  or  by  advertising.  In  either  ease  tlie  effeet  is  the 
same.  The  advertisement  in  the  present  case  afforded  that  aid  without 
which  the  vendor  conld  not  have  committed  the  illegal  act.  The 
defendant  knew  that  the  advertisements  related  to  indecent  literature, 
and  that  sales  would  or  might  result  from  their  insertion  in  his  paper. 
It  is  immaterial  that  he  may  not  have  known  the  exact  books  or  photo- 
graphs that  would  be  sold  :  Reg.  v.  Cooper,  (1846)  8  Q.  B.  533  ;  Parkes  v. 
Prescott,  (1869)  L.  R.  4  Ex.  169. 

[He  was  stopped.] 

Avory,  K.  C,    replied. 

Lord  Alverstone,  C.  J.  The  very  able  arguments  which  have  been 
delivered  on  both  sides  enable  me  to  come  without  any  doubt  to  the 
conclusion  that  this  conviction  must  be  affirmed.  The  defendant  for 
profit  to  himself  inserted  in  his  paper  advertisements  which  give  infor- 
mation to  readers  as  to  wliere  certain  publications  can  be  obtained,  and 
it  is  found  as  a  fact  that  the  defendant  knew  that  the  books  and  other 
things  advertised  were  of  an  indecent  character,  and  if  one  were  at 
liberty  to  draw  a  conclusion  from  the  advertisements  themselves,  there 
coidd  be  no  doubt  at  all  as  to  that.  The  Common  Serjeant  directed 
the  jury  in  the  following  terms  :  [His  Lordship  read  the  direction  of 
the  Common  Serjeant  set  out  above,  and  continued  :  — ]  In  my  opinion 
that  direction  is  stated  as  favourably  as  it  could  be  for  the  defendant. 
The  jury  are  told  that  in  order  to  convict  the  defendant  they  must  be 
satisfied  that  the  defendant  knew  the  character  of  the  publications  re- 
ferred to  in  the  advertisements,  and  that  by  publishing  the  advertise- 
ments he  brought  about  the  sale  of  the  publications  and  other  articles 
referred  to.  That  amounts  in  ordinary  language  to  aiding  or  abetting 
the  publication  in  England  of  obscene  literature,  and  the  sending 
through  the  post  in  England  a  packet  the  sending  of  which  is  pro- 
hibited by  the  Post  Office  (Protection)  Act,  1884.  It  would,  in  my 
opinion,  be  a  lamentable  state  of  things  if  the  law  of  this  country  were 
not  strong  enough  to  deal  with  a  man  who  has  done  so  much  towards 
bringing  about  the  publication  of  indecent  literature.  The  evidence  in 
this  case  shews  that  the  result  of  the  insertion  of  the  advertisements 
in  the  defendant's  paper  was  to  give  information  as  to  where  these 
things  could  be  obtained  to  persons  who,  but  for  the  advertisements, 
would  or  might  never  have  known  of  their  existence,  and,  therefore,  it 
is  not  going  too  far  to  say  that  the  publication  was  directly  brought 
about  by  the  act  of  the  defendant,  and  it  is  further  proved  that  the 
defendant  had  knowledge  that  that  would  be  the  consequence  of  insert- 
ing the  advertisements  in  the  paper.  The  argument  which  has  been 
urged  on  behalf  of  the  defendant  seems  to  me  to  go  too  far,  because  it 
would  equally  apply  if  the  defendant  had  himself  caused  the  books 
to  be  printed  abroad.     In  my  opinion  the  direction  of  the  Common 


316  KEGINA   v.    HALLIDAY.  [CHAP.  V. 

Serjeant  was  in  accordance  with  the  law,  and  the  cases  of  Rex  v. 
OUphant,  supra,  Rex  v.  Burdett,  supra,  and  Reg.  v.  Cooper,  supra, 
arc  all  authorities  which  afford  illustration  of  the  same  principle,  that 
in  misdemeanours  persons  who,  in  the  words  of  the  statute,  "  aid,  abet, 
counsel  or  procure  "  the  commission  of  an  offence  are  themselves  prin- 
cipal offenders. 

Grantham  J.  I  am  of  the  same  opinion.  I  doubted  at  first  whether 
the  law  was  strong  enough  to  make  the  person  who  received  money 
for  publishing  these  advertisements  liable  in  the  same  way  as  a  person 
who  himself  sells  indecent  literature,  but  the  authorities  which  have 
been  cited  to  us  by  Mr.  Minr  satisfy  me  that  the  learned  Common 
Serjeant  rightly  directed  the  jury.  The  conviction  must  therefore  be 
affirmed. 

Lawrance,  Bigham  and  Bucknill,  JJ.,  concurred. 

Conviction  affirmed. 


REGTNA  V.   HALLIDAY. 
Crown  Case  Reserved.     1889. 

[Reported  61  Law  Times  Reports,  701.] 

Case  stated  for  the  opinion  of  the  Court  for  the  Consideration  of 
Crown  Cases  Reserved  by  the  Chairman  of  the  Court  of  Quarter  Ses- 
sions of  the  County  Palatine  of  Durham  :  — 

At  the  Michaelmas  Quarter  Sessions  1880  of  the  county  of  Durham, 
the  prisoner  James  Halliday  was  tried  before  me  on  an  indictment 
charging  him  with  having  on  the  19th  June  1889  wilfully  and  maliciously 
inflicted  grievous  bodily  harm  on  Mary  Jane  Halliday,  and  (in  a  second 
count)  with  having  assaulted  her,  thereby  occasioning  her  actual  bodily 
harm. 

It  was  proved  that  Mary  Ann  [Jane?]  Halliday  was  prisoner's  wife, 
that  he  had  been  frequently  drunk  during  the  twelve  months  preceding 
the  day  on  which  the  offence  was  committed,  that  while  drunk  his  lan- 
guage was  ver}'  violent  and  abusive,  tliat  he  had  threatened  her  fre- 
quently, and  that  in  consequence  of  his  threats  she  had  had  to  leave 
home  and  go  to  a  neighbor's  house  about  a  week  before  the  last- 
mentioned  day,  but  he  had  never  actually  used  violence  towards  her. 
On  the  day  in  question,  in  consequence  of  a  request  made  to  her  by 
Margaret  Ann  Halliday  (the  daughter  of  prosecutrix  and  prisoner),  the 
prosecutrix  went  home  and  found  prisoner  very  drunk ;  the  son  of  the 
prisoner  and  prosecutrix  was  also  there,  and  whilst  he  remained  prisoner 
was  quiet,  but  the  son  left  the  house  after  a  short  interval  and  then 
prisoner  fastened  the  door  and  windows  and  said  to  prosecutrix,  ''Now, 
you  b ,  I'll  talk  to  vou  ;  "  also  calling  her  bad  names  and  ordering 


SECT.  II.]  ■  KEGINA   V.    HALLIDAY.  Sl? 

her  and  the  daughter  off  to  bed.  Prosecutrix  was  in  an  inner  room, 
and  prisoner  shortly  afterwards  called  out  to  her,  asking  if  she  was  in 
bed.  Prosecutrix  said  she  was  not,  whereupon  prisoner  exclaimed, 
"  I'll  make  you  so  that  you  can't  go  to  bed,"  and  whilst  staggering 
towards  the  inner  room  he  knocked  himself  against  a  closet  in  the 
outer  room.  Prosecutrix  was  afraid  he  would  blame  her  for  that,  and 
ran  to  the  window,  took  the  hasp  off  it  and  opened  it  in  order  to  get 
out,  and  had  got  one  leg  out  when  their  daughter  caught  hold  of  her 
and  held  her.  Prisoner  by  this  time  had  got  into  the  room  where  pros- 
ecutrix was,  and  was  within  reach  of  her,  and  was  calling  out  "  Let 

the  b go,"  whereupon  the  daughter  left  hold  and  prosecutrix  fell 

into  the  street  and  broke  her  leg.  Both  mother  and  daughter  were 
ver^'  frightened.  Whilst  prosecutrix  was  lying  on  the  flags  beneath, 
prisoner  jeered  at  her  from  the  window,  saying  it  served  her  right,  and 
he  made  no  attempt  to  help  her. 

On  these  facts  I  directed  the  jurj^  that,  if  the  prosecutrix's  apprehen- 
sion was  well  grounded,  taking  into  account  the  circumstances  in  which 
she  was  placed,  and  if  getting  out  of  the  window  was  an  act  such  as 
under  the  circumstances  a  woman  might  reasonably  be  led  to  take,  they 
should  find  the  prisoner  guilty.  The  jury  returned  a  general  verdict  of 
guilty  on  the  whole  indictment,  and  I  sentenced  him  to  six  months 
imprisonment  with  hard  labor.  Defendant  is  in  her  Majesty's  prison 
at  Durham  undergoing  the  sentence. 

The  question  for  the  court  is,  whether  or  not  the  prisoner  was  rightlj' 
convicted. 

No  one  appeared  on  behalf  of  the  prisoner. 

J.  L.  Walton  (with  him  Simey),  on  behalf  of  the  prosecution,  sub- 
mitted that  the  term  "inflict"  is  convertible  with  the  term  "  cause  to 
feel,"  and  means  in  sect.  20  of  24  &,  25  Vict.  c.  100,  to  be  responsible 
for  acts  that  cause  harm  to  any  person.  That  construction  had  been 
placed  upon  the  word  in  sect.  18  of  the  Act,  and  a  charge  of  felony 
sustained  upon  points  very  similar  to  those  in  the  present  case  ;  and  it 
had  been  held  that  the  words  "  cause"  and  "  inflict"  were  convertible 
terms.  There  was  a  distinction  between  this  case  and  Reg.  v.  Martin 
(8  Q.  B.  Div.  54;  14  Cox  C.  C.  633).  For  there  the  persons  were 
injured  by  the  physical  act  of  the  prisoner,  and  without  any  act  of  their 
own,  while  here  the  jump  from  the  window  was  the  voluntary  act  of  the 
woman.  But  a  man  did  not  the  less  cause  a  thing  because  he  inflicted 
it ;  and  it  was  clear  that,  if  the  woman  had  died,  the  prisoner  could 
have  been  convicted  of  manslaughter,  if  not  of  murder.  There  were  a 
series  of  authorities,  commencing  with  Rex  v.  Evans  (1  Russ.  on 
Crimes,  4th  ed.  p.  65G),  as  to  the  responsibility  of  a  person  who  causes 
another  person  to  take  upon  himself  conduct  which  causes  injury.  In 
that  case.  Heath,  Gibbs,  and  Bayley,  JJ.,  were  of  opinion  that,  if  a 
woman's  death  had  been  occasioned  partly  by  her  husband's  blows  and 
partly  by  falling  from  a  window  out  of  which  she  threw  herself,  3et,  if 
she  was  constrained  by  her  husband's  threats  of  further  violence,  and 


318 


KEGINA    V.    IIALLIDAY.  [CHAP.  V. 


from  a  well-grounded  apprehension  of  his  doing  such  further  violence 
as  would  endanger  her  life,  he  was  answerable  for  the  consequences  of 
the  fall  as  much  as  if  he  had  thrown  her  out  of  the  window  himself. 
In  Rex  V.  Hickman  (5  C.  &  P.  151)  a  prisoner  was  held  guilty  of  mur- 
der who  had  charged  another  person  on  horseback  and  so  friglitened 
him  that  he  spurred  his  horse,  and  in  consequence  the  horse  fell  and 
the  man  was  killed.  In  Reg.  v.  Pitts  (C.  &  Mars.  284),  the  prisoner 
was  cliarged  with  the  murder  of  a  man  whose  body  was  found  in  a 
canal,  there  being  signs  of  violence  and  a  struggle  on  the  banks  of  the 
canal,'  and  Erskin°e,  J.,  told  the  jury  that  a  man  might  throw  himself  into 
a  river  under  such  circumstances  as  rendered  it  not  a  voluntary  act,  by 
reason  of  force  either  applied  to  the  body  or  the  mind.  It  was  there- 
fore immaterial  whether  tlie  physical  act  of  the  prisoner  operates  on  the 
body  or  mind,  if  injury  is  caused ;  and  here  there  was  ample  evidence 
that  the  woman  got  out  of  the  window  in  consequence  of  her  husband's 
threats  operating  upon  her  mind  so  as  to  cause  her  to  fear  immediate 
danger. 

Lord  Coleridge,  C.  J.     I  am    of  opinion   that  the  conviction  in 
this  case  is  correct,  and  tliat  the  sentence  should  be   aftirmed.     The 
principle  seems  to  me  to  be  laid  down  quite  fully  in  Reg.  v.  Martin 
(8  Q.  B.  Div.  54  ;  14  Cox  C.  C.  633).     There  this  court  held  that  a 
man  who  had  either  taken  advantage  of  or  had  created  a  panic  in  a 
theatre,  and  had  obstructed  a  passage,  and  rendered  it  difficult  to  get 
out  of  the  theatre,  in  consequence  of  which  a  number  of  peoi)le  were 
crushed,  was  answerable  for  the  consequences  of  what  he  had  done. 
Here  the  woman  came  by  her  mischief  by  getting  out  of  the  window  — 
I  use  a  vague  word  on  purpose  —  and  in  her  fall  broke  her  leg.     Now 
that  might  have  been  caused  by  an  act  which  was  done  accidentally  or 
deliberately,  in  which  case  the  prisoner  would  not  have  been  guilty.     It 
appears  from  the  case,  however,  that  the  prisoner  had  threatened  his 
wife  more  than  once,  and  that  on  this  occasion  he  came  home  drunk, 
and  used  words  which  amounted  to  a  threat  against  her  life,  saying, 
"  I  'II  make  you  so  that  you  can't  go  to  bed  ;  "    that  she,  rushing  to  the 
window,  got  half  out  of  the  window,  when  she  was  restrained  by  her 
daughter.     Tlie  prisoner  threatened  the  daughter,  who  let  go,  and  her 
mother  fell.     It  is  suggested  to  me  by  ray  learned  brother  that,  sup- 
posing the  prisoner  had  struck  his  daughter's  arm  without  hurting  her, 
but  sufficiently  to  cause  her  to  let  go,  and  she  had  let  her  mother  fall, 
could  any  one  doubt  but  that  that  would  be  the  same  thing  as  if  he  had 
pushed  her  out  himself  ?     If  a  man  creates  in  another  man's  mind  an 
immediate  sense  of  danger  which  causes  such  person  to  try  to  escape, 
and  in  so  doing  he  injures  himself,  the  person  who  creates  such  a  state 
of  mind  is  responsible  for  the  injuries  which  result.     I  think  that  in 
this  case  there  was  abundant  evidence  that  there  was  a  sense  of  imme- 
diate danger  in  the  mind  of  the  woman  caused  b\'  the  acts  of  the  pris- 
oner, and  that  her  injuries  resulted  from  what  such  sense  of  danger 
caused  her  to  do.     I  am  therefore  of  opinion  that  the  prisoner  was 
rightly  convicted,  and  that  this  conviction  must  be  affirmed. 


SECT.  II.]  HENPRICKSON   V.   COMMONWEALTH.  319 

Mathew,  J.  I  am  of  the  same  opinion.  Tiie  jury  must  be  taken 
to  have  inferred  that  the  act  of  escaping  from  the  window  and  the  act 
of  the  daughter  were  the  consequences  of  the  prisoner's  acts  ;  and  I  am 
of  opinion  that  he  is  liable  for  the  consequences  of  such  acts. 

Cave,  Day,  and  Smith,  JJ.,  concurred.^ 

Conviction  affinned. 


HENDRICKSON   v.   COMMONWEALTH. 
Court  of  Appeals  of  Kentucky.     1887. 

[Reported  85  Kentucky,  281.] 

Judge  Lewis  delivered  the  opinion  of  the  court :  — 

Under  an  indictment  for  the  murder  of  his  wife,  appellant  was  con- 
victed of  manslaughter. 

From  the  testimony  of  a  daughter  of  the  deceased  and  step-daughter 
of  appellant,  the  only  person  present  at  the  time,  it  appears  that  a 
difficult}'  took  place  at  their  residence  at  night  after  they  had  retired 
to  bed,  in  the  winter  of  1885-86,  and,  in  the  language  of  the  witness, 
occurred  as  follows :  "  The  sow  rooted  open  the  door  of  the  cabin,  and 
the}'  (her  mother  and  father)  fell  out  over  driving  her  out,  and  he 
choked,  beat,  scratched,  and  struck  her,  and  she  knocked  him  down 
with  the  iron  shovel,  and  got  on  him,  choked  him,  and  asked  him  how 
he  felt ;  and  he  started  towards  his  breeches  and  said :  '  If  I  had  m}' 
knife  —  I  will  get  ni}'  knife  and  I  '11  cut  your  dog  gon'd  throat ;  '  and 
that  she  ran  out  at  the  door  and  did  not  return  that  night ;  tliat  he 
shut  the  door  after  her  and  propped  it  with  a  stick  of  wood  and  went 
to  bed."  She  further  stated  that  next  morning  she  went  to  look  for 
her  mother  and  found  her  lying  in  the  snow  dead,  and  when  she  started 
appellant  told  her  to  take  her  mother's  shoes  and  stockings. 

The  statement  to  the  jur}-,  made  by  appellant  himself,  is,  that  the 
deceased  commenced  the  fight,  getting  him  down  on  the  floor,  when  he 
choked  and  bit  her,  and  she  then  knocked  him  down  with  an  iron 
shovel,  and  got  on  and  choked  him,  and  then  jumped  up  and  ran  out 
of  the  door,  saying  she  would  have  him  arrested  and  put  in  jail.  He, 
however,  admits  he  said  to  her  that  if  he  had  his  knife  he  would  cut 
her,  and  started  for  his  breeches. 

From  the  testimony  of  a  witness  it  appears  that  the  place  where  the 
deceased  lay  was  within  about  one  hundred  yards  of  his  house,  and 
about  half  mile  of  her  residence,  and  that  in  going  to  the  place  where 
she  was  found  she  had  passed  by  the  gate  of  another  person,  and 

1  In  a  similar  case  Aldersox,  B.,  said :  "  I  do  not  think  it  will  be  sufftcient  to 
prove  that  she  jumped  from  the  window  to  escape  his  violence.  You  must  go  further 
than  that,  and  satisfy  the  jury  that  he  intended  at  the  time  to  make  her  jump  out." 
Reg.  V.  Donovan,  4  Cox  C.  C.  401.  — Ed. 


320 


HENDRICKSON   V.   COMMONWEALTH.  [CHAP.  V. 


within  twenty  feet  of  his  house,  which  was  two  hundred  and  fifty  j-ards 
nearer  her  own  residence  than  was  the  place  where  she  died.  When 
found  she  was  lying  on  her  face  dead  and  badly  frozen,  the  weather 
being  extremely  cold,  and  where  she  lay  were  signs  of  stirring  in  the 
snow,  w^iich  was  about  eighteen  inches  deep.  When  she  left  her 
residence  slie  was  barefooted  and  had  on  very  little  clotliing,  and  along 
the  route  slie  took,  which  led  through  briers,  there  were  small  quanti- 
ties of  blood  and  fragments  of  clothing  that  had  been  torn  off  by  the 
briers ;  and  at  another  place  she  had  struck  her  ankle  against  the  end 
of  a  log  and  it  bled  freely.  The  witnesses  testify  that  there  were 
scratches  on  each  side  of  her  neck,  and  finger-prints  on  her  throat,  and 
prints  of  teeth  on  her  left  arm  and  back  of  her  hands,  and  her  legs 
from  knees  down  were  lacerated  by  the  briers.  According  to  the  tes- 
timony of  a  physician,  she  was  eight  months  and  one  week  gone  in 
pregnancy ;  but  she  had  no  wound,  bruise,  or  other  mark  of  violence 
that  could  have  produced  death.  He  also  testified  that  appellant  was 
badly  crippled  and  paralyzed  in  one  arm,  and  that  on  the  day  of  his 
examining  trial  he  had  a  considerable  bruise  about  his  face  and  a  bad- 
looking  one  about  the  eye. 

There  is  evidence  that  the  deceased  was  a  high-tempered  woman, 
hard  to  get  along  with.  She  told  a  witness  of  fighting  and  whipping 
her  husband,  who  was  a  cripple,  and  had  but  one  arm  he  could  use, 
though  the  daughter  testifles  that  in  their  fights  he  whipped  her.  It 
further  appears  that  she  had  on  other  occasions  ran  off  and  left  her 
husband,  and  at  one  time  she  came  to  the  house  of  a  witness  and 
stayed  all  night,  leaving  a  young  baby  with  her  husband,  saying  to  the 
witness  that  she  had  got  mad  and  run  ofi". 

The  lower  court  refused  to  instruct  the  jur}',  at  the  instance  of 
appellant's  counsel,  that  before  finding  him  guilty  the}'  must  believe 
the  death  of  his  wife  was  produced  by  him  alone  and  in  no  other  way ; 
and  also  refused  to  instruct  that  in  order  to  convict  the}'  must  believe 
he  intentionally  exposed  her,  or  forced  her  to  expose  herself,  to  the 
cold  under  such  circumstances  that  her  death  would  be  the  probable 
and  natural  consequence  of  such  exposure,  and  that  she  died  from  such 
exposure ;  but  in  lieu  of  those  asked  by  his  counsel,  gave  the  follow- 
ing :  "  If  the  jury  believe  .  .  .  that  the  defendant  ...  in  sudden  heat 
and  passion,  and  not  in  his  necessary'  or  reasonably  necessary  self- 
defence,  used  such  force  and  violence  towards  his  wife  as  to  cause  her 
to  leave  his  house  from  fear  of  death  or  great  bodily  harm  at  his  hands, 
and  from  exposure  to  cold  her  death  was  produced  b}'  the  said  act  of 
the  defendant,  they  should  find  him  guilty  of  manslaughter,"  etc. 

"  Forcing  a  person  to  do  an  act  which  causes  his  death  renders  the 
death  the  guilty  deed  of  him  who  compelled  the  deceased  to  do  the 
act ;  and  it  is  not  material  whether  the  force  be  applied  to  the  body  or 
to  the  mind  ;  but  if  it  were  the  latter,  it  must  be  shown  there  was  the 
apprehension  of  immediate  ^'iolence,  and  well-grounded  from  the  cir- 
cumstances by  which  the  deceased  was  surrounded.     And  it  need  not 


SECT.  II.]  HENDRICKSOX   V.   COMMONWEALTH.  321 

appear  that  there  was  no  other  way  of  escape  ;  but  it  must  appear  that 
the  step  was  taken  to  avoid  the  threatened  danger,  and  was  such  as  a 
reasonable  man  might  take."  Russell  on  Crimes.  489  ;  3  Greenleaf 
on  Evidence,  section  142. 

In  a  case  where  the  evidence  was  that  the  defendant,  a  husband, 
beat  his  wife  and  threatened  to  throw  her  out  of  the  window  and  to 
murder  her.  and  that  by  such  threats  she  was  so  terrified  that,  through 
fear  of  his  putting  his  threats  into  execution,  she  threw  herself  out  of 
the  window,  and  of  the  beating  and  bruises  received  by  the  fall  she 
died,  it  was  held  that  if  her  death  was  occasioned  partly  by  the  blows, 
and  partly  by  the  fall,  yet  if  she  was  constrained  by  her  husband's 
threats  of  further  violence,  and  from  a  well-grounded  apprehension  of 
his  doing  such  fui'ther  violence  as  would  endanger  her  life,  he  was 
answerable  for  the  consequences  of  the  fall  as  much  as  if  he  had 
thrown  her  out  of  the  window  himself.  And  in  another  case,  where  the 
deceased,  from  a  well-grounded  apprehension  of  a  further  attack  which 
would  have  endangered  his  life,  endeavored  to  escape,  and  in  so  doing 
was  fatalh'  injured  from  another  cause,  it  was  held  murder.  (See 
Wharton  on  Homicide,  section  374,  where  these  and  other  cases  are 
cited.) 

The  case  of  State  v.  Preslar,  3  N.  C.  421,  was  where,  after  the 
husband  had  desisted  from  beating  his  wife,  she  went  off  a  little 
distance  in  the  j-ard  and  sat  down,  and  the  husband,  after  about  five 
minutes,  went  into  the  house  and  laid  upon  the  bed  with  his  clothes 
on,  and  about  half  an  hour  afterwards  she  started,  in  compan}-  with: 
her  son,  to  the  house  of  her  father,  about  two  miles  off;  but  when  she 
got  within  two  hundred  yards  of  her  father's  house  she  said  she  did 
not  wish  to  go  there  until  morning,  it  being  iu  the  night-time,  and  laid 
down  on  a  bed-quilt  in  the  woods.  Early  next  morning  she  ga;ve 
notice  to  the  inmates  of  the  house  of  her  presence,  but  was  not  able 
to  walk  there,  and  the  next  da}-  died.  In  that  case  the  court  decided 
that  as  she  had  exposed  herself  thus  without  necessity,  and  there  were, 
besides,  circumstances  showing  deliberation  in  leaving  her  home,  the 
husband  could  not  be  held  responsible  to  the  extent  of  forfeiting  his 
life.  But  the  court  at  the  same  time  said  that  "if,  to  avoid  the  rage 
of  a  brutal  husband,  a  wife  is  compelled  to  expose  herself  by  wading 
through  a  swamp  or  jumping  into  a  river,  the  husband  is  responsible  for 
the  consequences." 

The  question  before  us  is,  whether,  tested  by  the  principles  stated 
and  illustrated,  the  instruction  quoted  correctly  and  fully  embodies 
the  law  applicable  to  this  case. 

It  will  be  perceived  that  the  jury  were  authorized,  by  the  instruction. 
to  convict,  if  they  believed  the  accused  used  such  force  and  violence  as 
to  cause  the  deceased  to  leave  the  house  from  fear  of  death  or  great 
bodily  harm  at  his  hands.  But  they  were  not  instructed,  as  they  should 
have  been  before  convicting,  to  believe,  nor  permitted  to  inquire, 
whether  or  not  such,  fear  was  well  grounded  or  reasonable.     The  jury 

21 


32: 


STATE    V.    O'BKIEN.  [CHAP.  Y. 


mi^ht,  and  from  their  verdict  doubtless  did,  believe  she  left  the  house 
from  fear  of  death  or  great  bodily  harm,  yet,  if  they  had  taken  into 
consideration  the  previous  conduct  of  the  deceased,  her  disposition  and 
ability  to  fight  with  her  husband,  their  comparative  physical  powers, 
and  all  the"  circumstances  proved  in  the  case,  they  might  not  have 
believed  her  fear  was  well  grounded  or  reasonable,  and  unless  it  was, 
the  accused  should  not  be  held  responsible  for  her  death,  for  in  such 
case  he  could  not  be  regarded  as  forcing  her  to  leave  the  house. 

The  jury  should  have  been  further  instructed  that,  to  convict,  they 
must  believe  the  death  of  the  wife  by  freezing  was  the  natural  and 
probable  consequence  of  leaving  the  house  at  the  time  and  under  the 
circumstances. 

There  is  no  evidence  the  accused  prevented  her  re-entrance  into  the 
house,  as  assumed  in  the  instruction  in  regard  to  murder,  and  it  was 
error  to  make  reference  thereto.  For  the  errors  indicated,  the  judg- 
ment is  reversed  for  a  new  trial,  and  other  proceedings  consistent  with 
this  opinion. 


STATE  V.  O'BRIEN. 
Supreme  Court  of  Iowa.     1890. 

[Reported  81  Iowa,  88.]  •< 

The  defendant  was  indicted  for  the  crime  of  murder,  and  niron  a 
trial  was  found  guilty  of  manslaughter.  He  was  adjudged  to  be  im- 
prisoned for  two  years  at  hard  labor  in  the  penitentiary  at  Anamosa, 
and  to  pay  the  costs,  and  from  that  judgment  he  appeals. 

Robinson,  J.^  It  is  suggested  that  the  verdict  is  not  supported  by 
the  evidence,  and  that  it  is  not  shown  that  the  death  of  Stocum  resulted 
from  injuries  inflicted  by  the  defendant.  The  evidence  shows  that 
decedent  had  not  been  in  good  health  for  several  months.  About 
three  weeks  before  the  assault  in  question,  he  consulted  a  physician, 
who  found  his  heart  in  a  diseased  condition,  and  treated  him  for  heart 
difficulty.  He  improved  steadily  under  that  treatment  until  the  assault 
was  made.  If  his  testimony  at  the  preliminary  examination  and  his 
dying  declaration  were  correct,  he  was  choked  and  kicked  and  otherwise 
grossl}'  maltreated  by  defendant.  It  is  certain  that  he  was  greatly 
excited  by  the  encounter.  Immediately  after  it  occurred  he  applied  at 
a  house  in  the  vicinit}'  for  shelter,  stating  that  he  was  afraid  to  go  home 
on  account  of  defendant  and  the  Murphy  boys.  A  witness  sa^'S  of  his 
appearance  at  that  time:  "He  acted  just  scared  to  death.  His  face 
was  as  pale  as  death ;  his  lips  were  swollen.  His  hat  was  torn  and 
had  mud  on  both  sides."  His  health  failed  rapidly  from  that  time.  A 
witness  who  saw  him  the  day  after  the  assault  describes  his  appearance 

i  I'art  only  of  the  opinion  is  given. 


SECT.  II.]  ■     KEGINA   V.    WATERS.  323 

and  condition  as  follows  :  "  I  discovered  he  was  in  pretty  bad  shape  ;  he 
was  pale,  haggard  ;  almost  impossible  for  him  to  breathe.  I  thought 
he  would  reel  right  over  on  the  stoop  there.  His  shoulder-blades 
worked  like  a  bellows.  His  voice  was  weak.  His  Hps,  dark  blue." 
The  medical  testimony  shows  that  his  condition  and  failing  health  after 
the  assault,  and  his  death,  were  natural  and  probable  results  of  his 
physical  condition  on  the  night  of  July  15,  and  of  great  excitement 
and  physical  exertion. 

It  was  the  province  of  the  jury  to  determine  whether  the  wrong  of 
defendant  caused  or  contributed  to  decedent's  death.  The  fact  that  he 
was  afflicted  with  a  disease  which  might  have  proved  fatal  would  not 
justify  the  wrongful  acts  of  defendant,  nor  constitute  a  defence  in  law. 
State  V.  Smith,  73  Iowa,  32.  Nor  would  ignorance  on  the  part  of 
defendant  of  the  diseased  physical  condition  of  Stocum  excuse  his  acts. 
State  V.  Castello,  62  Iowa,  404.  We  think  the  evidence  sufficient  to 
sustain  the  verdict,  and  find  no  error  prejudicial  to  defendant  of  which 
he  can  complain. 

The  Judgment  of  the  district  court  is  affirmed. 


REGINA  V.  WATERS. 

Crown  Case  Reserved.     1849. 

[Reported  1  Den.   C.   C.  356.] 

The  prisoner  was  tried  before  Mr.  Baron  Rolfe  on  a  charge  of  mur- 
der, and  was  convicted  of  manslaughter  on  the  second  count,  which 
alleged  that  she  made  an  assault  upon  her  unnamed  infant  child,  and 
cast  it  upon  a  heap  of  dust  and  ashes,  and  left  it  upon  said  heap  of 
dust  and  ashes  exposed  to  the  cold  air,  by  reason  of  which  exposure 
the  child  became  frozen  and  died.  It  was  moved  in  arrest  of  judgment 
that  the  indictment  was  insufficient,  since  it  did  not  allege  that  the 
child  was  incapable  of  taking  care  of  itself.  The  learned  Baron  stated 
the  case  for  the  opinion  of  the  judges.^ 

Parke,  B.  If  the  second  count  of  the  indictment  had  charged  the 
prisoner  with  causing  the  death  of  the  deceased  by  a  mere  non-feasance 
—  the  neglect  of  her  maternal  duty  towards  her  child,  it  would  have 
been  bad ;  because  the  indictment  ought  to  have  stated  the  child  to 
be  of  such  an  age,  or  in  such  a  situation  as  to  be  unable  to  take  care 
of  itself  Supposing  an  averment  that  the  child  was  of  tender  years 
would  have  imported  such  an  inability,  there  is  no  averment  in  this 
count  that  the  child  was  of  tender  years,  for  the  reference  in  the  com- 

*  This  short  statement  is  substituted  for  the  statement  of  the  reporter.  —  Ed. 


324 


EEGINA  V.   WATERS.  [CHAP.   V. 


mencement  of  it  to  the  first  count  does  not  import  that  description. 
It  contains  no  more  than  an  averment,  that  the  child  was  an  infant 
female,  born  of  the  prisoner's  body,  and  not  named.  (See  opinion  of 
Mr.  Justice  Patteson,  Reg.  v.  Martin,  6  C.  &  P.  217.) 

But  this  count  charges  the  prisoner  with  a  misfeasance,  a  wrongful 
act  in  assaulting  the  child,  and  casting  and  throwing  her  on  a  dust 
heap,  and  if  the  death  of  the  child  is  traced  to  this  act,  the  offence  of 
manslaughter  is  complete. 

Is  it  then  traced  to  this  wrongful  act  ? 

It  is  alleged  that  the  prisoner  having  cast  and  thrown  the  deceased 
on  the  heap  of  dust,  left  her  there,  that  is,  permitted  her  to  continue 
there,  exposed  to  the  cold  air,  by  means  of  which  exposure  she  was 
benumbed  and  died. 

The  exposure  therefore  is  charged  against  the  prisoner,  and  the 
death  is  attributed  to  the  exposure. 

It  is  not  expressly  averred  in  this  case,  that  the  child  was  of  such 
tender  years,  or  so  feeble  that  she  could  not  walk  away  and  take  care 
of  herself —  but  that  is  implied,  for  if  she  had  been  sufficiently  old,  or 
strong  to  do  so,  the  death  would  not  have  arisen  from  the  exposure  by 
the  pHsoner,  but  from  the  act  of  the  child  in  not  walking  away  and 
taking  care  of  herself.  Thus,  it  is  established,  that  if,  in  an  action  on 
the  case,  a  neglect  is  charged  against  the  defendant,  by  reason  where- 
of the  plaintiff  had  sustained  damage,  the  question,  whether  the  plain- 
tiff could  have  avoided  that  damage  by  the  exercise  of  ordinary  care, 
is  always  open  on  not  guilty,  and  after  verdict,  it  is  presumed  that  the 
jury  have  found  the  fact  of  the  neglect,  and  also  found  that  the  conse- 
quential damage  was  not  caused  by  the  want  of  ordinary  care  in  the 
plaintiff.  Bridge  v.  Grand  Junction  Railway  Company,  3  M.  &  W. 
248;  Goldthorpe  v.  Hardman,  13  M.  &  W.  377. 

In  this  case  the  jury  could  not  have  found  the  prisoner  guilty,  with- 
out actually  negativing  the  power  of  the  child  to  take  care  of  herself, 
and  so  to  escape  the  consequences  of  the  unlawful  act  of  the  prisoner ; 
and  consequently  after  verdict  that  fact  must  be  implied. 

I  think,  therefore,  that  the  count  is  good  in  this  respect. 


SECT.  II.]  .     REGINA   V.    POCOCK.  325 

I  ^'  r    . 

EEGINA  V.   POCOCK. 
Queen's  Bench.     1851. 

[Reported  5  Cox  C.  C.  172.] 

This  was  a  rule  to  quash  a  coroner's  inquisition  which  had  been 
removed  into  this  court  by  certiorari.  The  inquisition  alleged  that  the 
defendants  were  the  trustees  of  a  public  road  under  an  act  of  Parlia- 
ment; that  it  was  their  duty  to  contract  for  the  due  reparation  of  the 
said  road ;  that  they  feloniously  did  neglect  and  omit  to  contract  for 
the  repair  of  the  same,  whereby  it  became  ver}-  mir}',  ruinous,  deep, 
broken,  and  in  great  decay  ;  and  that  a  cart,  which  the  deceased  was 
driving  along  the  road,  fell  into  a  hole  in  the  road,  and  b}'  reason  thereof 
the  deceased  was  thrown  out,  and  sustained  the  injuries  of  which  he 
arfterwards  died. 

Charnock  showed  cause.  — This  case  is  not  distinguishable  from 
those  of  persons  who  have  the  charge  of  machinery-  at  mines,  of  sig- 
nals, or  locomotives  on  railways,  and  the  like  ;  and  there  are  many 
precedents  of  indictments  for  manslaughter  in  such  cases  where  death 
has  been  occasioned  by  a  neglect  of  dut}'  on  the  part  of  the  persons  so 
intrusted.  R.  v.  Barrett,  2  Car.  &  K.  343  ;  R.  v.  Haines,  ih.,  368  ;  R. 
V.  Gregory,  5  B.  &  Ad,  555.  Here  a  public  duty  was  cast  upon  the 
trustees,  and  the^'  were  authorized  to  raise  money  b^'  rates  for  the  pur- 
pose ;  and  if  their  neglect  of  duty  has  caused  the  death  of  another, 
they  are  guilty  of  manslaughter. 

Hayes,  contra,  was  not  called  upon. 

Lord  Campbell,  C.  J.  The  cases  cited  show  a  personal  dut}', 
the  neglect  of  which  has  directl}'  caused  death  ;  and,  no  doubt,  where 
that  is  the  case,  a  conviction  of  manslaughter  is  right.  But  how  do 
those  apply  to  trustees  of  a  highway  ?  How  can  it  be  said  that  their 
omission  to  raise  a  rate,  or  to  contract  for  the  reparation  of  the  road, 
directly  causes  the  death?  If  so,  the  surveyors  or  the  inhabitants  of 
the  parish  would  be  equally  guilty  of  manslaughter ;  for  the  law  casts 
upon  them  the  duty  of  keeping  the  roads  in  repair.  To  uphold  the 
inquisition  would  be  to  extend  the  criminal  law  in  a  most  alarming 
manner,  for  which  there  is  no  principle  or  precedent. 

Patteson,  J.     This  is  really  too  extravagant. 

WiGHTMAN,  J.  concurred. 

Erle,  J.  In  all  the  cases  of  indictment  for  manslaughter,  where 
the  death  has  been  occasioned  by  omission  to  discharge  a  duty,  it  will 
be  found  that  the  duty  was  one  connected  with  life,  so  that  the  ordi- 
nary consequence  of  neglecting  it  would  be  death.  Such  are  the  cases 
of  machinery  at  mines,  of  engine-drivers,  or  the  omission  to  supply 
food  to  helpless  infants.  Inquisition  quashed. 


326 


KEGINA   V.    MOKBY.  [CHAP.    V. 


REGINA  V.  MORBY. 

Court  for  Crown  Cases  Reserved.     1882. 

[Reported  15  Cox,  C.  C.  35.] 

Case  reserved  for  the  opinion  of  tliis  court  b}'  Sir  H.  Hawkins. 

The  prisoner  was  convicted  before  me  at  the  last  session  of  the  Cen- 
tral Criminal  Court,  of  the  manslaughter  of  his  son,  Abraham  Morby, 
a  child  under  the  age  of  fourteen,  who  lived  with  him,  and  was  in  his 
custody  at  Woolwich. 

The  prisoner  had  ample  means  and  opportunity  to  provide  adequate 
food,  clothing,  medical  aid,  and  lodging  for  his  child,  and  he  did  provide 
all  these  things,  except  medical  aid ;  this  he,  under  the  circumstances 
hereinafter  stated,  wilfully  neglected  and  omitted  to  provide,  because, 
being  one  of  the  '•  Peculiar  People,"  he  did  not  believe  in  medical  aid, 
but  trusted  in  prayer  and  anointment  alone  (see  Epistle  of  St.  James, 
c.  5,  V.  14). 

The  deceased  child,  who  was  eight  years  old,  was,  on  the  27th  Dec. 
last,  known  by  the  prisoner  to  be  suffering  from  confluent  small-pox. 
Of  that  disease  it  died  on  the  8th  Jan. 

The  jury  found  that  it  was  reasonable  and  proper  that  the  prisoner 
should  have  called  in  and  provided  medical  aid  for  it,  but  that  he  wil- 
fully neglected  and  omitted  so  to  do. 

No  medical  man  saw  the  deceased  during  life  ;  but  Dr.  Sharpe,  who 
made  a  pos^  mortem  examination  of  the  body,  stated  that  death  was 
undoubtedly  due  to  small-pox ;  that  small-pox  is  a  disease  requiring 
medical  advice  and  skill,  great  attention,  and  great  care,  and  if  not 
attended  to,  is  calculated  to  spread. 

This  question  was  put  to  Dr.  Sharpe:  "In  your  opinion,  do  yon 
think  the  life  of  the  deceased  might  have  been  probably  prolonged 
if  medical  skill  had  been  called  in?"  to  which  he  answered  thus: 
"  Probably  ;  but  I  would  rather  put  it  in  this  way  :  that  the  chances  of 
the  boy's  life  would  have  been  increased  by  having  medical  advice." 

The  prisoner's  counsel  admitted  that  he  could  not  contend  that  the 
prisoner  was  not  guilty  of  a  breach  of  the  statutor\'  dut}'  imposed  on 
him  by  31  &  32  Vict.  c.  122,  s.  37,  but  he  submitted  that  the  death  was 
not  caused  by  that  breach  of  duty.  I  held  that,  if  death  was  accel- 
erated thereby,  it  would  be  sufficient.  Upon  this  the  prisoner's  counsel 
urged  that  there  was  no  proof  that  death  was  so  accelerated.  There- 
upon Dr.  Sharpe  was  recalled,  and  the  following  questions  were  put  to 
him,  to  which  he  gave  the  answers  subjoined  : 

Q- — In  your  judgment,  if  medical  advice  and  assistance  had 
been  called  in  at  any  stage  of  this  disease,  might  the  death  have 
been  averted  altogether? 

A. —  I  can  only  answer  that  by  saying  that  it  mi(/?it  have  been. 
Ours  is  not  a  positive  science.     It  might  have  been  averted  if  medical 


SECT.  II.]  REGINA   V.    MORBY.  327 

aid  had  been  called  in  at  anN*  earlier  stage.  I  am  unable  to  say 
whether  it  probabl}-  would.  I  might  say  probably  as  to  whether  life 
might  have  been  prolonged.  I  cannot  say  that  death  would  probably 
have  been  averted.  I  think  it  probable  that  life  might  have  been  pro- 
longed. I  can  only  say  probably  mighty  because  I  did  not  see  the  case 
while  living.  I  am  unable  to  say  that  life  would  probably  have  been 
prolonged,  because  I  did  not  see  the  case  during  life.  Had  I  done  so, 
I  might  have  been  able  to  answer  the  question. 

The  prisoner's  counsel  still  insisted  there  was  no  proof  that  death 
was  caused  or  accelerated  by  the  prisoner's  breach  of  duty. 

I  thought  it  best  to  submit  the  evidence  to  the  jury,  and  to  reserve 
the  point  if  necessary. 

I  accordingly  asked  the  jury  whether  the  life  of  the  child  would,  in 
their  judgment,  have  been  prolonged  if  medical  aid  had  been  called  in 
when  the  prisoner  became  aware  of  the  fact  that  deceased  was  suffering 
from  small-pox? 

To  this  question  they  answered  that  it  would. 

I  then  told  them  that  if  they  so  found,  and  that  the  death  of  the 
child,  though  it  could  not  be  certainly  averted  altogether,  was  never- 
theless accelerated  by  the  wilful  neglect  of  the  prisoner  to  provide 
such  medical  aid  when  it  was  reasonable  and  proper  and  his  duty  to 
provide  it  —  he  having  the  means  and  opportunity  to  do  so  —  he  was 
guilty  of  manslaughter. 

On  this  direction  the  jury  found  him  guilty. 

I  reserve  for  the  opinion  of  the  Court  of  Criminal  Appeal  these 
two  questions  : 

1st.  Whether  there  was  any  evidence  that  the  life  of  the  child  would 
have  been  prolonged  for  any  period  of  time,  however  short,  if  the 
prisoner  had  called  in  and  provided  medical  aid  —  or  in  other  Words, 
that  death  was  accelerated  by  his  breach  of  duty? 

If  there  was,  I  am  satisfied  with  the  finding  of  the  jury. 

2nd.  "Whether,  assuming  the  prisoner  to  have  accelerated  the  death 
of  the  child  by  his  breach  of  duty  in  wilfully  neglecting  to  provide  for 
it  medical  aid  as  aforesaid,  he  was  properly  convicted  of  manslaughter? 

If  either  of  these  questions  is  answered  in  the  negative  the  conviction 
is  to  be  quashed. 

If  both  are  answered  in  the  affirmative  it  is  to  be  affirmed. 

The  case  not  being  one  demanding  punishment,  I  have  released  the 
prisoner  on  his  own  recognisanzes  to  appear  for  judgment  if  he  should 
be  required  to  do  so. 

See  31  &  32  Vict.  c.  122,  s.  37  ;  Reg.  v.  Downes,  L.  Rep.  12  Q.  B. 
Div.  25,  s.  c.  45  L.  J. ;  13  Cox's  C.  C.  111. 

March  20,  1882.  H.   Hawkins. 

D.  Kingsford  for  the  prisoner.  — There  was  no  evidence  in  support 
of  the  charge  of  manslaughter  which  the  judge  ought  to  have  left  to 
tlie  jury,  and  he  ought  to  have  directed  an  acquittal.  It  was  necessary 
for  the  prosecution  to  show  that  the  non-supply  of  medical  assistance 


328  KEGINA   V.    MORBY.  [cHAP.   V. 

by  the  prisoner  was  the  direct  and  proximate  cause  of  the  death  of 
the  boy  or  of  the  acceleration  of  his  death.  The  case  of  Rex  (•.  Stockdale 
(2  Lewin  C.  C.  220)  was  then  cited. 

Poland  (Mead  with  him)  for  the  prosecution. 

Lord  Coleridge,  C.  J.  — We  are  uU  clearly  of  opinion  that  the  con- 
viction cannot  be  supported.  The  jury  may  have  thought  that,  as 
there  had  been  a  neglect  of  his  duty  by  the  parent,  it  was  right  to 
mark  their  sense  of  it  b}'  their  verdict.  Nothing  could  be  more  cautious 
than  the  answers  given  by  the  medical  witness  to  the  questions  put 
to  him.  It  was  not  enough  to  sustain  the  charge  of  manslaughter 
to  show  that  the  parent  had  neglected  to  use  all  reasonable  means 
of  saving  the  life  of  his  child;  it  was  necessary  to  show  that  what 
the  parent  neglected  to  do  had  the  effect  of  shortening  the  child's 
life.  The  utmost  that  the  doctor  would  sa}-,  giving  his  evidence  under 
a  strong  responsibilit3',  in  answer  to  the  question,  ''In  3"0ur  judgment, 
if  medical  advice  and  assistance  liad  been  called  in  at  an\'  stage  of  this 
disease,  might  the  death  have  been  averted  altogether?"  was,  '•  I  can- 
not say  that  death  would  probably  have  been  averted.  I  think  it 
probable  that  life  might  have  been  prolonged.  I  can  only  say  prob- 
ably might,  because  I  did  not  see  the  case  during  life ;  had  I  done  so 
I  might  have  been  able  to  answer  the  question."  That  evidence  is 
far  too  vague  to  allow  this  conviction  to  stand  when  all  that  the  skilled 
witness  could  say  was  that  probablj'  the  life  of  the  boy  might  have 
been  prolonged  if  medical  assistance  had  been  called  in. 

Grove,  J.  —  I  am  of  the  same  opinion.  The  jur\-,  b\"  their  verdict, 
say  what  tlie  medical  witness  expressly  declined  to  say,  that  is,  that 
the  boy's  life  would  have  been  prolonged  b}-  calling  in  medical  assist- 
ance. The  prosecution  was  bound  to  give  affirmative  evidence  that 
the  deuth  was  caused  by  the  neglect  of  the  prisoner  to  call  in  medical 
assistance. 

Stephen,  J.  —  I  am  of  the  same  opinion.  This  matter  might  bo 
made  absolutely  plain  if  the  evidence  were  to  go  a  little  more  into 
detail.  Suppose  the  medical  witness  had  been  asked  whether  the  ad- 
ministration of  such-and-such  medicines  which  had  not  been  adminis- 
tered would  have  been  of  service  in  prolonging  the  boy's  life,  and  he 
had  answered  that  "  probably  they  might  have  been,  but  that  he  could 
not  undertake  to  say  so,  not  having  seen  the  case."  Would  any  one 
say  that  tlie  neglect  to  administer  such  medicines  would  make  the 
father  guilty  of  manslaughter?  It  is  probable  that  the  prisoner  was 
guilty  of  an  offence  under  the  statute  in  not  providing  medical  assist- 
ance, but  it  does  not  follow  tliat  he  was  guilty  of  manslaughter, 
which  requires  it  to  be  shown  that  the  result  of  the  neglect  was  to 
cause  death,  whereas  here  it  was  left  in  doubt ;  and  I  have  always 
understood  that  to  warrant  a  conviction  the  minds  of  the  jury  must 
be  free  from  any  reasonable  doubt. 

Matthew  and  Cave,  JJ.,  concurred. 

Conviction  quashed. 


SECT.  II.J  COMMJNWEALTH   V.   HACKETT.  329 

COMMONWEALTH   v.   HACKETT. 
Supreme  Judicial  Court  of  Massachusetts.     1861. 

[Reported  2  AIL  136.] 

Indictment  for  murder.^ 

The  defendant  contended  that  there  was  evidence  to  show  that  the 
wonnds  of  the  deceased  were  nnskilfuU}'  and  improperly  treated  by  the 
surgeons  who  attended  hira,  and  requested  the  court  to  instruct  the  jury 
as  follows  :  "  1.  The  rule  that  the  death  must  happen  within  a  year  and 
a  day  is  one  of  limitation  only,  and  does  not  change  the  burden  of 
proof,  or  release  the  government  from  the  dutj-  of  proving  affirmatively 
that  the  deceased  died  of  the  wounds  alleged  in  the  indictment.  2.  It 
is  not  enough  to  satisfy  this  burden  for  the  government  to  prove  that 
without  the  wounds  the  deceased  would  not  have  died.  3.  If  the  death 
was  caused  by  the  improper  applications  or  improper  acts  of  the 
surgeons  in  dressing  the  wounds,  the  case  of  the  government  is  not 
made  out." 

The  court  instructed  the  jury  in  conformity  with  the  first  clause  of 
the  instructions  asked  for,  but  declined  to  give  the  others,  and  in  place 
thereof  instructed  them,  substantially,  that  the  burden  of  proof  was 
upon  the  government  to  prove  beyond  a  reasonable  doubt  that  the 
deceased  died  of  the  wounds  inflicted  by  the  defendant,  but  that  this 
general  rule  required  explanation  in  its  application  to  certain  aspects 
of  the  present  case ;  that  a  person  who  has  inflicted  a  dangerous 
wound  with  a  deadly  weapon  upon  the  person  of  another  cannot  escape 
punishment  by  proving  that  the  wound  was  aggravated  by  improper 
applications  or  unskilful  treatment  by  surgeons  ;  that  if,  in  the  present 
case,  they  were  satisfied  that  the  wounds  inflicted  by  the  defendant  were 
improperly  and  unskilfully  treated  by  the  surgeons  in  attendance,  and 
that  such  treatment  hastened  or  contributed  to  the  death  of  the  de- 
ceased, the  defendant  was  not  for  this  reason  entitled  to  an  acquittal ; 
but  that  the  rule  of  law  was  that,  if  the}'  were  satisfied  beyond  a 
reasonable  doubt  that  the  defendant  inflicted  on  the  deceased  dangerous 
wounds  with  a  deadly  weapon,  and  that  these  wounds  were  unskilfully 
treated,  so  that  gangrene  and  fever  ensued,  and  the  deceased  died 
from  the  wounds  combined  with  the  maltreatment,  the  defendant  was 
guilty  of  murder  or  manslaughter  according  as  the  evidence  proved 
the  one  or  the  other;  that,  if  they  were  satisfied  not. only  that  death 
would  not  have  ensued  but  for  the  wounds,  but  also  that  the  wounds 
were,  when  inflicted,  dangerous,  the  defendant  would  be  responsible, 
although  improper  and  unskilful  treatment  might  have  contributed  to 
the  death  ;  that  the  law  does  not  permit  a  person  who  has  used  a- 
deadly  weapon,  and  with  it  inflicted  a  dangerous  wound  upon  another, 
to  attempt  to  apportion  his  own  wrongful  and  wicked  act,  and  divide 

1  Part  of  the  case,  which  discussed  the  admissibility  of  certain  evidence,  is  omitted. 
—  Ed. 


I 


330  COMMONWEALTH   V.   HACKETT.  [CHAP.  V. 

the  responsibility  of  it,  by  speculating  upon  the  question  of  the  extent 
to  which  unskilful  treatment  by  a  surgeon  has  contributed  to  the  death 
of  the  person  injured ;  but,  if  they  were  in  doubt  whether  the  wounds 
were  dangerous,  or  caused  or  contributed  to  the  death,  or  whether  the 
deceased  "might  not  have  died  from  the  unskilful  treatment  alone,  then 
the  defendant  would  be  entitled  to  an  acquittal. 
The  defendant  was  found    guilty  of    manslaughter,   and   alleged 

exceptions. 

BiGELOW,  C.  J.  .  .  .  We  have  looked  with  care  into  the  authorities 
which  bear  on  the  correctness  of  the  instructions  given  to  the  jury,  relat- 
ing to  the  unskilful  or  improper  treatment  of  the  wounds  alleged  to  have 
been  inflicted  by  the  prisoner  upon  the  body  of  the  deceased.     We  find 
them  to  be  clear  and  uniform,  from  the  earliest  to  the  latest  decisions. 
In  one  of  the  first  reported  cases  it  is  said  that  "  though  a  wound  may 
be  cured,  yet  if  the  party  dieth  thereof,  it  is  murder."     The  King  v. 
Reading,  1  Keb.  17.    The  same  principle  is  stated  in  1  Hale  P.  C  428, 
thus :  "  If  a  man  give  another  a  stroke  which  it  rnay  be  is  not  in  itself 
so  mortal  but  that  with  good  care  he  might  be  cured,  yet  if  he  die  of 
this  wound  witliin  a  year  and  a  day,  it  is  homicide  or  murder,  as  the 
case  is,  and  so  it  has  been  always  ruled."    "  If  a  man  receives  a  wound, 
which  is  not  in  itself  mortal,  but  either  for  want  of  helpful  applications, 
or  neglect  thereof,  it  turns  to  a  gangrene,  or  a  fever,  and  that  gangrene 
or  fever  be  the  immediate  cause  of  his  death,  yet,  this  is  murder  or 
manslaughter  in  him  that  gave  the  stroke  or  wound,  for  that  wound, 
though  it  were  not  the  immediate  cause  of  death,  yet,  if  it  were  the 
mediate  cause  thereof,  and  the  fever  or  gangrene  was  the  immediate 
cause  of  his  death,  yet  the  wound  was  the  cause  of  the  gangrene  or 
fever,   and  so  consequently  is   causa   causati."     In    Rew's  case,   as 
stated  in  1  East  P.  C.  c.  5,  §   113,  it  was  determined  that  ''though 
the  stroke  were  not  so  mortal  in  itself  but  that  with  good  care  and 
under  favorable  circumstances  the  party  might  have  recovered,  yet  if 
it  were  such  from  whence  danger  might  ensue,  and  the  party  neglected 
it,  or  applied  inefficacious  medicines,  whereb}*  the  wound  which  at  first 
was  not  mortal  in  itself  turned  to  a  gangrene,  or  produced  a  fever, 
whereof   he   died,    the  party  striking  shall  answer   for  it,  })eing  the 
mediate  cause  of  the  death."     J.  Kel.  26.     So,  in  a  more  recent  case, 
the  jury  were  instructed  that  if  the  defendant  wilful!}'  and  without 
justifiable  cause  inflicted  a  wound,  which  was  ultimately  the  cause  of 
death,  it  made  no  difference  whether  the  wound  was  in  its    nature 
instantly  mortal,  or  whether  it  became  the  cause  of  death  by  reason 
of  the  deceased  not  having  adopted  the  best  mode  of  treatment.     The 
real  question  is,  was  the  wound  the  cause  of  death.    Regina  v.  Holland, 
2  M.  «&  Rob.  351.    From  these  and  other  authorities,  the  well  estab- 
lished I'ule  of  the  common  law  would  seem  to  be,  that  if  the  wound  was 
a  dangerous  wound,  that  is,  calculated  to  endanger  or  destroy  life,  and 
death  ensued  therefrom,  it  is  sufficient  proof  of  the  offence  of  murder 
or  manslaughter ;  and  that  the  person  who  inflicted  it  is  responsible, 


SECT.  II.]  COMMONWEALTH   V.   HACKETT.  331 

though  it  may  appear  that  the  deceased  might  have  recovered  if  he  had 
taken  proper  care  of  himself,  or  submitted  to  a  surgical  operation,  or 
that  unskilful  or  improper  treatment  aggravated  the  wound  and  con- 
tributed to  the  death,  or  that  death  was  immediately  caused  by  a 
surgical  operation  rendered  necessary  b}'  the  condition  of  the  wound. 
1  Russell  on  Crimes  (7th  Amer.  ed.),  505  ;  Roscoe's  Crim.  Ev.  (3d  ed.) 
703,  706  ;  3  Greenl.  Ev.§  139  ;  Commonwealth  v.  Green,  1  Ashm.  289. 
Regina  v.  Haines,  2  Car.  &  Kirw.  368 ;  State  v.  Baker,  1  Jones  Law 
R.  (N.  C.)  267;  Commonwealth  v.  M'Pike,  3  Cush.  184.  The  princi- 
ple on  which  this  rule  is  founded  is  one  of  universal  application,  and 
lies  at  the  foundation  of  all  our  criminal  jurisprudence.  It  is,  that 
every  person  is  to  be  held  to  contemplate  and  to  be  responsible  for  the 
natural  consequences  of  his  own  acts.  If  a  person  inflicts  a  wound 
with  a  deadly  weapon  in  such  manner  as  to  put  life  in  jeopardy,  and 
death  follows  as  a  consequence  of  this  felonious  and  wicked  act,  it 
does  not  alter  its  nature  or  diminish  its  criminality  to  prove  that  other 
causes  cooperated  in  producing  the  fatal  result.  Indeed  it  may  be 
said  that  neglect  of  the  wound  or  its  unskilful  and  improper  treatment, 
which  were  of  themselves  consequences  of  the  criminal  act,  which 
might  naturally  follow  in  any  case,  must  in  law  be  deemed  to  have 
been  among  those  which  were  in  contemplation  of  the  guilty  party,  and 
for  which  he  is  to  be  held  responsible.  But  however  this  may  be,  it  is 
certain  that  the  rule  of  law,  as  stated  in  the  authorities  above  cited,  has 
its  foundation  in  a  wise  and  sound  policy.  A  different  doctrine  would 
tend  to  give  immunity  to  crime,  and  to  take  away  from  human  life 
a  salutary  and  essential  safeguard.  Amid  the  conflicting  theories  of 
medical  men,  and  the  uncertainties  attendant  on  the  treatment  of 
bodily  ailments  and  injuries,  it  would  be  easy  in  many  cases  of  homi- 
cide to  raise  a  doubt  as  to  the  immediate  cause  of  death,  and  thereb}^ 
to  open  a  wide  door  by  which  persons  guilty  of  the  highest  crime  might 
escape  conviction  and  punishment. 

Tlie  instructions  to  the  jury  at  the  trial  of  this  case  were  in  strict 
conformity  with  the  rule  of  law  as  it  has  always  been  understood  and 
administered.  Indeed  the  learned  counsel  does  not  attempt  to  show 
that  it  has  ever  been  held  otherwise.  His  argument  on  this  point  is 
confined  to  the  signification  which  he  attributes  to  the  word  maltreat- 
ment. This  he  assumes  to  be  either  wilful  ill  treatment,  involving  bad 
faith,  of  the  wound  of  the  deceased,  or  such  gross  carelessness  in  its 
management  by  the  surgeons  as  would  amount  to  criminalit}'.  But 
such  is  not  its  true  meaning.  Maltreatment  may  result  either  from 
ignorance,  neglect,  or  wilfulness.  It  is  synonymous  with  bad  treatment, 
and  does  not  imply,  necessarily,  that  the  conduct  of  the  surgeons,  in 
their  treatment  of  the  wounds  of  the  deceased,  was  either  wilfully  or 
grossly  careless.  Nor  was  it  used  in  any  such  narrow  or  restricted 
sense  in  the  instructions  given  to  the  jury.  On  the  contrary,  in  the 
connection  in  which  it  stands,  it  signifies  only  improper  or  unskilful 
treatment,  and  was  intended  to  apply  to  the  evidence  as  it  was 
developed  at  the  trial.  Exceptions  overruled. 


332  EEGINA   V.    HAINES.  [CHAP.  V. 

If  a.- 

SECTION   III.     Contributing  Acts. 
REGINA  V.  HAINES. 

WOUCESTEKSHIKE  ASSIZES.  1847. 
[Reported  2  Carrington  ^  Kirwan,  368.] 
Manslaughter. —The  first  count  of  the  indictment  slated  that  the 
prisoner,  in  and  upon  one  James  Shakespeare  did  make  an  assault ; 
and  that  it  was  the  duty  of  the  prisoner  to  ventilate  and  cause  to  be 
ventilated  a  certain  coal  mine,  and  to  cause  it  to  be  kept  free  from 
noxious  gases,  and  that  the  prisoner  feloniously  omitted  to  cause  the 
mine  to  be  kept  ventilated,  and  that  the  noxious  gases  accumulated 
and  exploded,  whereby  the  said  J.  S.,  who  was  lawfully  in  the  said 
mine,  was  killed. 

It  appeared  that  a  mine,  called  Round  Green  Colliery,  situate  at 
Hales  Owen,  was  the  property  of  George  Parker,  Esq.,  and  that  the 
prisoner  was  a  sort  of  manager  of  it,  and  called  the  ground  bailiff ; 
that  another  person  was  under  him,  called  the  butty,  he  being  a  sort 
of  foreman,  and  that  the  deceased,  who  was  called  the  doggy,  was  a 
kind  of  second  foreman  under  the  butty. 

It  further  appeared,  that,  at  about  half-past  six  o'clock  on  the  morn- 
ing of  the  17th  of  November,  1846,  a  number  of  men  were  working  in 
a  large  chamber  in  the  colliery,  when  there  was  an  explosion  of  fire- 
damp, by  which  nineteen  persons,  including  the  deceased  James 
Shakespeare,  were  killed  ;  and  it  was  imputed,  on  the  part  of  the 
prosecution,  that  this  explosion  would  have  been  prevented  if  the 
prisoner  had  caused  an  air-heading  to  have  been  put  up,  as  it  was  his 
duty  to  have  done.  But  it  was  sought  to  be  shown  by  the  cross-ex- 
amination of  the  witnesses  for  the  prosecution,  that  it  was  the  duty  of 
the  butty  (who  was  one  of  the  persons  killed  by  the  explosion)  to  have 
reported  to  the  prisoner  as  ground  bailiff  that  an  air-heading  was 
required  ;  and  that,  as  far  as  appeared,  he  had  not  done  so. 

Allen,  Serjt.,  for  the  prisoner,  submitted,  first,  that  the  prisoner  was 
not  guilty  of  any  negligence  at  all,  as  it  was  only  his  duty  to  cause  air- 
headings  to  be  put  up  on  the  requisition  of  the  butty  ;  and,  secondly, 
that  a  person  who  was  guilty  only  of  breach  of  duty  by  omission, 
could  not  be  found  guilty  of  manslaughter ;  for  that,  in  order  to  con- 
stitute that  offence,  there  must  be  some  wrongful  or  improper  act  done 
by  the  prisoner,  except  in  those  cases  where  there  was  a  liability 
known  to  the  law,  such  as  providing  an  infant  with  food,  or  the  like. 
He  cited  the  case  of  Regina  v.  Allen. 

Maule,  J.  (in  summing  up).  The  prisoner  is  charged  with  man- 
slaughter, and  it  is  imputed  that,  in  consequence  of  his  omission  to 
do  his  duty,  a  person  named  Shakespeare  lost  his  life.  It  appears 
that  the  prisoner  acted  as  ground  bailiff  of  a  mine,  and  that,  as  such, 
his  duty  was  to  regulate  the  ventilation,  and  direct  where  air  headings 
should  be  placed ;  and  the  questions  for  you  to  consider  are,  whether 


SECT.  III.]  '  EEGINA   V.    DAVIS.  333 

it  was  the  dut}'  of  the  prisoner  to  have  directed  an  air-heading  to  be 
made  in  this  mine  ;  and  whether,  by  his  omitting  to  do  so,  he  was 
guilty  of  a  want  of  reasonable  and  ordinary  precaution.  If  you  are 
satisfied  that  it  was  the  ordinary  and  plain  duty  of  the  prisoner  to 
have  caused  an  air-heading  to  be  made  in  this  mine,  and  that  a  man 
using  reasonable  diligence  would  have  had  it  done,  and  that,  by  the 
omission,  the  death  of  the  deceased  occurred,  you  ought  to  find  the 
prisoner  guilty  of  manslaughter.  It  has  been  contended  that  some 
other  persons  were,  on  this  occasion,  also  guilty  of  neglect.  Still, 
assuming  that  to  be  so,  their  neglect  will  not  excuse  the  prisoner ;  for, 
if  a  person's  death  be  occasioned  by  the  neglect  of  several,  they  are 
all  guilty  of  manslaughter ;  and  it  is  no  defence  for  one  who  was  neg- 
ligent to  say  that  another  was  negligent  also,  and  thus,  as  it  were,  try 
to  divide  the  negligence  among  them. 

Verdict,  Not  guilty. 

Huddleston  and  Hooper,  for  the  prosecution. 

Allen,  Serjt.j  and  Whit?nore,  for  the  prisoner. 


1 


REGINA  V.  DAVIS. 
Hertfordshire  Assizes.    1883. 

[Reported  15  Cox  C.  C.  174.] 

The  prisoners,  George  Davis  and  Charles  "Wagstaflfe,  were  indicted 
for  the  manslaughter  of  James  Butterworth,  at  Chipping  Barnet. 

Fulton  and  Beard  were  counsel  for  the  prosecution. 

Sims  was  counsel  for  Davie,  and  Montagu  Williams  and  F'.  Turner 
for  WagstafTe. 

From  the  evidence  it  appeared  that  about  10.30  o'clock  on  the  eve- 
ning of  the  5th  day  of  September,  1882,  the  deceased  man  Butterworth 
with  some  friends  were  passing  the  shop  of  Davis,  a  greengrocer,  in 
High  Street,  Barnet.  He  went  into  the  shop  and  asked  Mrs.  Davis  to 
serve  him  with  an  apple.  Mrs.  Davis  for  some  reason  refused,  and  he 
thereupon  used  disgusting  language  to  her. 

A  few  minutes  afterwards  her  husband,  the  prisoner  Davis,  came  up  ; 
abusive  words  then  followed,  and  a  fight  ensued  between  Davis  and 
Butterworth,  and  the  latter  was  knocked  over  some  baskets  outside  the 
shop.  Then  Marshall,  one  of  Butterworth's  friends,  interfered,  who, 
being  struck  by  the  defendant  AVagstaffe  (a  friend  of  Davis),  ran  away, 
followed  by  Wagstaffe.  WagstafTe  then  returned  just  as  Butterworth 
was  getting  up  from  the  ground.  Wagstaffe  at  once  knocked  Butter- 
worth down  again,  and  Butterworth  then  called  out  that ' '  he  has  broken 
my  jaw." 


334  KEGINA   V.   DAVIS.  [CIIAP.  T. 

On  examination  it  was  found  that  Butterworth's  jaw  was  broken  in 
two  places,  and  the  following  day  he  went  to  St.  Bartholomew's  Hospi- 
tal, and  the  surgeon  in  charge  decided  that  it  would  be  necessary  to 
wire  his  jaw,  and  the  assistant  chloroformist  was  sent  for,  and  the 
chloroform  properly  applied  ;  but  death,  unfortunately,  took  place  under 

the  operation. 

The  jyost-inortem  examination  disclosed  a  serious  injury  to  the  trachea, 
as  well  as  tubercular  disease  of  both  lungs,  the  injury  to  the  trachea 
being  the  result  of  a  blow  received  during  the  fight.^ 

The  prisoner's  counsel  proposed  to  show  by  evidence  that  the  opinion 
formed  by  the  medical  men  was  grounded  upon  erroneous  premises,  and 
that  no  operation  was  necessary  at  all,  or  at  least  that  an  easier  and 
much  less  dangerous  operation  might  and  ought  to  have  been  adopted, 
and  contended  that  he  might  therefore  cross-examine  the  medical  wit- 
nesses for  the  prosecution  as  to  the  grounds  of  their  opinion  ;  and  he 
submitted  that  a  person  was  not  criminally  responsible  where  the  death 
is  caused  by  consequences  which  are  not  physically  the  consequences 
of  the  wound,  but  can  only  be  connected  with  the  first  wound  by  moral 
reasoning;  as  where  that  which  occasioned  death  was  the  operation 
which  supervened  upon  the  wound,  because  the  medical  men  thought  it 
necessary. 

Williams.  I  propose  to  call  medical  evidence  that  the  death  was 
caused  by  the  administration  of  the  chloroform. 

His  Lordship  [Mathew,  J.].  It  is  not  disputed  that  if  the  chloroform 
had  not  been  administered  the  man  would  not  have  died. 

His  Lordship  then  consulted  Mr.  Justice  Field,  and  said  :  "  I  have 
no  doubt  at  all  upon  the  matter,  nor  has  my  brother  Field,  whom  I 
have  consulted ;  and  we  think,  whatever  may  have  been  the  case  in 
1846,  the  law  is  now  too  clear  to  reserve  a  case  for  the  consideration 
of  the  judges,  and  that  if  the  jury  are  satisfied  that  the  injury  to  the 
jaw  was  inflicted  by  Wagstaffe,  and  that  Davis  aided  and  abetted  him, 
then  they  must  find  them  both  guilty ;  and,  on  the  other  hand,  if  they 
think  there  is  no  sufficient  evidence  of  concert,  still  they  must  find  them 
both  guilty  if  they  think  Wagstaffe  broke  the  jaw,  and  Davis  inflicted 
the  injury  to  the  trachea.  We  both  think  that  the  chloroform  having 
been  properly  administered  by  a  regular  medical  practitioner,  the  fact 
that  death  primarily  resulted  from  its  use  cannot  affect  the  criminal 
responsibility  of  the  accused  persons.  Of  course,  if  the  jury  think  there 
was  a  meUe.,  and  that  there  is  no  reliable  evidence  of  concert,  and  they 
cannot  say  which  of  the  two  prisoners  inflicted  either  the  injury  to  the 
jaw  or  the  injury  to  the  trachea,  then  they  ma}'  if  they  please  acquit 
them  both." 

The  learned  counsel  for  the  prisoners  then  addressed  the  jur}'. 

His  Lordship  (in  summing  up  the  case  to  the  jury).  It  might  appear 
that  the  death  was  not  due  to  an}'  act  of  either  prisoner,  but  to  some- 

1  The  statement  of  facts  and  arguments  of  counsel  have  Leen  condensed. 


SECT.  III.]  REGINA    V.    DAVIS.  335 

thing  of  which  nt  first  sight  the}-  were  not  guilty  ;  and  that  their  moral 
guilt  reall}-  went  no  farther  than  the  guilt  of  a  man  who  committed  an 
assault.  The  prosecution  did  not  say  that  there  was  anything  more 
than  a  street  fight ;  the  injuries  were  serious,  but  perhaps  no  more  so 
than  where  it  happened  that  no  death  ensued,  and  the  man  who  had 
broken  the  peace  was  liable.  However,  the  case  was  to  be  dealt  with 
according  to  the  strict  rule  of  law,  which  was  that,  if,  although  there 
might  be  no  intent  to  do  more  than  assault,  still  an  injury  was  inflicted 
by  one  man  on  another  which  compelled  the  injured  man  to  take  medi- 
cal advice,  and  death  ensued  from  an  operation  advised  by  the  medical 
man,  for  that  death  the  assailant  was  in  the  eye  of  the  law  responsible. 
And  if  the  jurj^  were  satisfied  that  both  or  either  of  the  men  were 
responsible  for  the  injury  to  the  deceased,  and  that  Butterworth  took 
the  proper  course  of  consulting  competent  medical  men  ;  that  they 
recommended  an  operation  for  the  purpose  of  which  chloroform  was 
administered,  and  he  died  from  that  chloroform,  death  must  be  ti'aced 
back  to  the  act  of  the  man  by  whom  the  original  injury  was  done  to 
Butterworth.  They  would  deal  with  the  evidence  on  that  principle,  and 
whatever  the  consequences  might  be  they  would  have  to  pronounce  their 
verdict  on  that  footing.  [His  Lordship  then  went  through  and  com- 
mented upon  the  evidence,  /ind  proceeded :]  The  first  question  was. 
Was  it  Wagstatfe  who  injuied  the  man's  jaw?  If  Wagstaffe  struck  the 
blow  that  injured  the  man's  jaw,  or  whether  it  was  done  when,  as  some 
of  the  witnesses  said,  Wagstafl'e  kicked  him,  then  it  was  their  duty 
to  say  Wagstaffe  was  guilty.  There  was  evidence  that  the  blow  that 
injured  the  jaw  injured  the  trachea.  That  injury  to  the  jaw  caused 
resorting  to  the  hospital ;  competent  medical  men  decided  to  perform 
an  operation  ;  that  rendered  chloroform  necessary  ;  and  if  under  chloro- 
form the  man  died,  the  rule  of  law  was  that  the  death  could  be  traced 
back  to  the  man  by  whom  the  injury  was  done.  For  it  would  never  do 
to  have  a  serious  injury  by  one  man  on  another,  and  have  the  issue 
raised  that  death  was  due  to  want  of  skill  on  the  part  of  the  medical 
men.  People  who  inflicted  injuries  must  deal  with  the  law.  If  the  jury 
thought  there  was  a  melee,  and  that  the  injur}'  was  not  clearly  brought 
home  to  Wagstaffe,  tlie\-  were  at  liberty  to  say  the  Crown  had  not 
brought  home  to  him  the  death  of  the  man.  If  they  were  satisfied 
Davis  had  nothing  to  do  with  the  injury,  and  he  thought  there  could 
be  no  doubt  about  that,  and  if  the}'  believed  it  was  brought  home  to 
Wagstaffe,  it  would  be  their  duty  to  acquit  Davis  and  say  AYagstaffe 
was  guilty. 
The  jury  acquitted  the  prisoners.  Not  guilty. 


336  LIVINGSTON   V.   COMMONWEALTH.  [CHAP.  V. 

LIVINGSTON  V.  COMMONWEALTH. 
Court  of  Appeals  of  Virginia.     1857. 

l_Reported  U  Grnttan  592.] 

At  the  October  term  1856  of  the  Circuit  court  of  the  cif}'  of  Richmond, 
Georo-e  Livingston  was  indicted  for  the  murder  of  Elizabeth  Duesberry. 
The  indictment  was  in  the  usual  form  of  a  common  law  indictment  for 
murder,  and  contained  but  one  count.  To  this  indictment  the  prisoner 
demurred  ;  but  his  demurrer  was  overruled.  He  was  tried  at  the  same 
term,  and  found  guilty  of  murder  in  the  second  degree ;  but  on  the 
motion  of  the  prisoner,  the  court  set  aside  the  verdict  and  granted  him 
a  new  trial.  In  April  1857  the  prisoner  was  again  tried  and  found 
guiltv  of  voluntary  manslaughter ;  and  the  term  of  his  imprisonment 
was  fixed  at  one  year.  Upon  this  trial  the  clerk  charged  the  jury  in 
the  same  terms  as  on  the  first  trial.  Upon  the  verdict  the  court  ren- 
dered judgment  against  the  prisoner ;  and  he  applied  to  this  court  for 
a  writ  of  error ;  which  was  allowed. 

On  the  trial  a  number  of  questions  were  saved  ;  but  it  is  only  neces- 
sary to  state  those  which  were  acted  on  by  this  court.  It  appears  that 
the  deceased  was  the  mistress  of  the  prisoner,  and  that  he  fi-equently 
beat  her.  On  the  Saturday  previous  to  her  death  he  gave  her  a  beating, 
which  was  testified  to  by  two  of  the  inmates  of  the  house  where  she 
lived.  These  witnesses  testified  that  on  the  same  evening,  and  about 
two  hours  after  the  beating,  she  complained  of  a  violent  pain  in  her 
side.  This  testimony  the  prisoner  moved  the  court  to  exclude;  but 
the  court  overruled  the  motion  ;  and  the  prisoner  excepted.  This  is 
his  first  exception. 

Dr.  Waring,  a  practising  physician  in  Richmond,  was  sent  for  to  see 
the  deceased,  and  attended  her  until  her  death  on  the  next  Thursdav. 
He  stated,  in  giving  in  his  evidence,  that  he  heard  nothing,  either  from 
the  deceased  or  the  witnesses,  of  bruises  or  pain  anywhere  except  in 
the  lower  part  of  the  abdomen,  in  the  region  of  th6  bladder.  That  he 
treated  the  deceased  to  allay  inflammation  and  promote  action  on  the 
bowels.  He  made  a  post-mortem  examination  ;  and  after  detailing 
the  appearances,  said  he  saw  sufficient  cause  of  death,  without  referring 
it  to  the  beating.  The  witness  having  said,  in  answer  to  a  question  b}- 
the  attorney  for  the  commonwealth,  that  he  heard  the  testimon}-  of  all 
tlie  witnesses  who  had  been  examined,  the  attorney  put  to  him  the 
following  question  :  Do  3'ou  not  think  that  the  violence  which  she  re- 
ceived b}-  the  beating  which  you  have  heard  described  accelerated  the 
death  of  the  deceased?  This  question  was  objected  to  b}-  the  counsel 
for  the  prisoner ;  but  the  objection  was  overruled,  and  be  excepted. 
This  is  his  second  exception.^ 

1  Ouly  30  much  of  the  case  as  relates  to  this  exception  is  given.—  Ed. 


SECT.  III.]  LIVINGSTON   V.   COMMONWEALTH.  337 

Daniel,  J.  It  seems  to  me,  however,  that  the  court  below  erred  in 
receiving  a  portion  of  the  testimon}'  set  out  in  the  fifth  bill  of  excep- 
tions ;  and  more  particularly  that  portion  sought  and  elicited  by  the 
ninth  question  propounded  by  the  prosecution  to  the  witness  Waring. 
I  know  of  no  authority  which  would  hold  a  party  criminally  responsible 
in  a  case  such  as  that  which  it  was  the  aim  and  tendency  of  this  testi- 
mon}' to  establish. 

It  is  true  that  if  a  man  be  sick  of  a  mortal  disease,  and  receives 
a  wound  which,  by  irritating  or  provoking  the  disease  to  operate  more 
violently,  hastens  his  death,  the  party  inflicting  the  wound  may  be  held 
accountable  for  the  death.  In  such  a  case,  it  is  said,  the  deceased  has 
not  died  ex  visitatione  dei,  for  the  wound  has  hastened  the  death,  and 
the  offender  cannot  apportion  his  wrong.     1  Hale,  428. 

So  again,  it  is  said  by  the  same  authority,  if  a  man  receives  a  wound 
not  mortal,  and  through  neglect  or  failure  to  use  the  proper  application, 
it  turns  to  a  gangrene  or  fever  which  causes  the  death,  then  the  wound, 
being  the  cause  of  tlie  gangrene  or  fever,  is  regarded  as  the  causa 
camatl,  and  the  party  inflicting  the  wound  may  be  held  responsible  for 
the  death. 

On  the  other  hand,  however,  if  the  wound  be  not  mortal,  but  with 
ill  applications  the  party  dies,  and  it  clearly  appears  that  the  medicine 
and  not  the  wound  was  the  cause  of  death,  this  is  not  homicide. 

It  will  be  seen  that  there  is  a  marked  diff"erence  between  the  first 
two  cases  thus  instanced  by  Lord  Hale,  and  the  case  pointed  to  by  the 
testimony  in  question.  In  neither  of  the  former  is  any  independent 
cause  interposed  between  the  wound  and  the  death.  In  the  first  of  the 
two  the  death  would  not  have  occurred  at  the  time  it  did  but  for  the 
wound.  Though  the  sick  man  was  laboring  under  a  disease,  which  if 
left  to  take  its  natural  course,  would  result  in  death  at  no  distant 
period,  yet  the  death  in  respect  of  time  is  plainly  referable  to  the 
wound.  So,  in  the  second,  though  the  gangrene  is  the  proximate  cause 
of  the  death,  yet  the  gangrene  is  a  consequence  of  the  wound;  and  so 
the  death  is,  by  a  regular  course  and  natural  order,  in  the  sequence  of 
events,  traced  up  to  the  wound  as  its  originating  cause.  But  in  the 
case  sought  to  be  made  out  by  the  testimony  objected  to,  a  disease  is 
supposed  to  have  supervened  between  a  blow  not  mortal  and  the  death : 
a  disease  not  caused  by  the  blow,  but  coming  by  the  visitation  of 
Providence. 

In  such  a  case,  the  exemption  of  the  party  inflicting  the  blow  from 
criminal  accountability,  is,  it  seems  to  me,  even  more  obvious  than  in 
the  third  of  the  instances  cited  from  Hale.  For  then  it  might  be  said 
the  "  ill  application  "  of  which  the  party  died  would  not  have  been 
resorted  to  but  for  the  wound  inflicted  by  the  wrong-doer ;  and  if  the 
connection  there,  between  the  wound  and  the  death,  is  too  remote  to 
be  made  the  foundation  of  criminal  responsibility,  a  fortiori,  must 
such  be  the  rule  when  the  disease,  but  for  the  supervention  of  which 

22 


338  STATE  V.    SCATES.  [CHAP.  V. 

the  death  would  not  have  occurred,  is,  in  its  origin,  independent  of  the 
wound  or  blow,  and  wholly  out  of  the  course  of  its  consequences.  In 
such  a  state  of  things,  the  blow  and  the  death  have  no  necessary  or 
natural  connection  with  each  other  as  cause  and  effect.  The  blow  is 
neither  the  proximate  cause  of  the  death,  nor  is  it,  though  made  by  ex- 
traneous circumstances  to  accelerate  it,  linked  with  it  in  the  regular 
chain  of  causes  and  consequences.  A  new  and  wholly  independent  in- 
strumentality is  interposed  in  the  shape  of  the  disease  ;  and  in  contem- 
plation of  law,  the  death  stroke  is  inflicted  by  the  hand  of  Providence, 
and  not  by  the  hand  of  violence. 


STATE   V.   SCATES. 

Supreme  Court  of  North  Carolina.     1858. 

[Reported  5  Jones  420.] 

Dr.  Hill  saw  the  deceased  [child]  about  twenty  hours  after  it  was 
burnt.  He  dissected  the  burnt  parts,  and  found  the  injuries  very  exten- 
sive, the  arms,  back,  and  thighs  were  roasted,  —  crisped  like  a  piece  of 
leather.  He  stated  that  there  was  a  wound  in  the  forehead,  as  if  from  a 
blow  ;  he  was  fully  satisfied  the  burning  in  itself  was  fatal,  and  must 
have  produced  death,  but  he  "  doubted  as  to  the  immediate  cause  of  deatli 
—  thought  it  was  produced  by  the  blow."  He  explained  on  cross- 
examination  that  he  thought  the  burning  the  primary  cause  of  the  death, 
but  that  it  was  probably  hastened  by  the  wound  on  the  head.^ 

The  Court  charged  the  jury  that  ...  as  to  the  cause  of  the  death,  it 
was  for  them  to  say  whether  it  had  been  produced  by  the  burning,  or 
other  means,  and  that  if  produoed  by  the  burning,  they  should  be  satis- 
fied that  the  burning  was  the  act  of  the  prisoner ;  "  and  even  should 
they  share  in  the  doubt  expressed  by  the  doctor,  that  the  blow  had 
caused  its  immediate  death,  yet  if  satisfied  that  the  burning  was  the 
primary  cause  of  the  death,  and  the  blow  only  hastened  it,  it  would  be 
their  dut^-  to  convict."  —  Defendant  again  excepted. 

Verdict  "  guilty."     Judgment  and  appeal  by  the  defendant. 

Battle,  J.  .  .  .  Upon  the  other  point  in  the  case,  we  are  decidedly  of 
opinion  that  the  prisoner  is  entitled  to  a  new  trial.  As  to  the  cause  of  the 
death  of  the  deceased,  his  Honor  charged  the  jury  that  if  they  "  should 
share  in  the  doubt  expressed  by  the  doctor,  that  the  blow  had  caused 
the  immediate  death,  yet,  if  satisfied  that  the  burning  was  the  primary 
cause  of  the  death,  and  the  blow  only  hastened  it,  it  would  be  their 
duty  to  convict.**     This  instruction  was  given  upon   the  supposition 

1  Part  of  the  case,  turning  on  the  admissibility  of  a  confession,  is  omitted.  —  Ed. 


SECT.  III.]  STATE   V.    SCATES.  339 

that  the  blow  was  inflicted  by  another  person,  and  the  proposition 
could  be  true  only  when  the  testimony  connected  the  acts  of  such  per- 
son with  the  prisoner,  so  as  to  make  them  both  guilty,  and  we  at  first 
thought  such  was  the  proper  construction  to  be  put  upon  the  language 
used  by  his  Honor ;  but,  upon  reflection,  we  are  satisfied  that  a  broader 
proposition  was  laid  down,  to  wit:  that  if  the  prisoner  inflicted  a  mortal 
wound,  of  which  the  deceased  must  surely  die,  and  then  another  person, 
having  no  connection  with  him,  struck  the  child  a  blow,  which  merely 
hastened  its  death,  the  prisoner  would  still  be  guilty.  The  testimony 
presented  a  view  of  the  case  to  which  this  proposition  was  appHcablc, 
and  it  becomes  our  duty  to  decide  whether  it  can  be  sustained  upon 
an}"  recognized  principles  of  law. 

Murder  is  the  killing,  with  malice  prepense,  a  reasonable  being 
within  the  peace  of  the  State.  The  act  of  killing,  and  the  guilty  intent, 
must  concur  to  constitute  the  offence.  An  attempt,  only,  to  kill  with 
the  most  diabolical  intent,  may  be  moral,  but  cannot  be  legal,  murder. 
If  one  man  inflicts  a  mortal  wound,  of  which  the  victim  is  languishing, 
and  then  a  second  kills  the  deceased  by  an  independent  act,  we  cannot 
imagine  how  the  first  can  be  said  to  have  killed  him,  without  involving 
the  absurdity  of  saying  that  the  deceased  was  killed  twice.  In  such  a 
case,  the  two  persons  could  not  be  indicted  as  joint  murderers,  because 
there  was  no  understanding  or  connection  between  them.  It  is  certain 
that  the  second  person  could  be  convicted  of  murder,  if  he  killed  with 
malice  aforethought ;  and  to  convict  the  first  would  be  assuming  that  he 
had  also  killed  the  same  person  at  another  time.  Such  a  proposition 
cannot  be  sustained. 

The  prisoner  must  have  a  new  trial.  This  renders  it  unnecessary  for 
us  to  consider  the  effect  of  the  alleged  erroneous  entry  of  the  verdict. 

Per  Curiam.  Judgment  reversed. 


340  PEOPLE   V.   AH  FAT,  [CHAP.  V. 

PEOPLE   V.   AH  FAT.  '  J 

Supreme  Court  of  California.    1874. 
[Reported  48  Cal.  61.] 

The  defendant  was  indicted  jointly  with  Ah  Wee  and  Ah  Moy  for 
the  murder  of  Ah  Quong.  There  was  testimony  tending  to  show  that 
the  deceased  was  injured  not  only  by  a  pistol  shot,  but  also  by  a  blow 
o-iven  by  a  hatchet.  The  defendant  asked  the  court  to  instruct  the  jury 
that  if  they  believed  "that  before  Ah  Quong  the  deceased,  was  cut 
with  a  hatchet,  he  had  been  mortally  wounded  by  a  pistol  shot  not  fired 
by  the  defendant,"  then  they  should  find  him  not  guilty.  The  defend- 
ant also  asked  the  Court  to  instruct  that  "  if  the  jury  have  a  reasonable 
doubt  as  to  the  cause  of  the  death  of  the  deceased,  the  defendant  is 
entitled  to  the  benefit  of  such  doubt,  and  they  will  acquit  the  defendant 
if  his  death  was  caused  by  a  pistol  shot,  not  administered  by  defend- 
ant, nor  by  any  one  to  whose  act  he  was  only  an  accessory."  These 
were  instructions  thirteen  and  fourteen,  and  were  refused  by  the  Court.  ^ 

The  defendant  was  convicted  of  murder  in  the  second  degree  and 
sentenced  to  imprisonment  for  life,  and  appealed. 

NiLES,  J.  .  .  .  The  thirteenth  instruction  asked  by  the  counsel  for 
the  defendant  was  properly  refused.  The  jury  would  have  been 
informed  substantially  that  a  defendant  is  not  guilty  of  murder  in  the 
killing  of  a  person  who  has  already  been  mortally  wounded  by  another 
—  a  doctrine  which  cannot  be  seriously  contended  for.  Moreover, 
both  this  instruction  and  the  fourteenth,  asked  by  the  defendant,  were 
radically  defective,  because  they  ignored  the  possible  guilt  of  the 
defeutlaut  as  a  present  aider  and  abetter  of  the  killing.'' 

*  Onlv  so  much  of  the  ca?e  as  relates  to  these  exceptions  is  given.  —  Ed. 

2  "  If  the  defendant  fired  the  first  shot  in  necessary  self-defence,  and  then  afterwards, 
when  Keruoodle  had  abandoned  the  contest,  and  was  Heeing,  he  again  fired  upon  iiim, 
inflicting  another  wound,  when  the  circumstances  were  not  such  .is  to  make  a  reason- 
able man  in  his  situation  believe  that  he  was  then  in  immediate  danger  of  great  bodily 
injury,  he  would  be  guilty  either  of  some  degree  of  homicide,  or  of  an  unlawful 
assault,  depending  upon  the  question  whether  or  not  the  wound  inflicted  by  the  last 
shot  either  caused,  contributed  to,  or  accelerated  his  death.  In  other  words,  if  the  last 
shot  was  not  fired  in  necessary  self-defence,  and  the  wound  inflicted  by  it  either  caused 
his  death,  or  contributed  to  or  hastened  it,  the  defendant  would  be  guilty  of  some  de- 
gree of  homicide,  even  though  the  first  shot  was  fired  in  self-defence,  and  though,  at 
the  time  the  last  shot  was  fired,  the  deceased  was  already  so  severely  wounded  that 
his  death  would  have  followed  in  a  very  short  time.  On  the  other  hand,  if  the  first 
shot  was  fired  in  self-defence,  and  the  last  shot  neither  caused  his  death,  nor  contrib- 
uted to,  or  hastened  it,  then  he  could  not  properly  be  convicted  of  any  degree  of 
homicide,  but  might  be  convicted  of  an  assault."  Riddick,  J.,  in  Rogers  v.  State, 
60  Ark.  76.  — Ed. 


SECT,  III.]  PEOPLE   V.   COOK.  341 

n  ^  ■ 

PEOPLE  V.  COOK. 

Supreme  Court  of  Michigan.    1878. 

[Reported  39  Mich.  236.] 

Marston,  J.^  .  .  .  The  ninth  request  was  not  given.  This  request 
was  based  upon  a  theorj'  that  where  a  mortal  wound  has  been  given,  but 
the  death  is  actually  produced  b}-  morphine  administered  by  the  hand 
of  another,  there  must  be  an  acquittal.  The  State  v.  Scates,  5  Jones 
(N.  C),  420,  was  relied  upon  as  an  authority  in  support  of  this  prop- 
osition. In  that  case  the  jur}'  was  charged  that  if  one  person  inflicts  a 
mortal  wound,  and  before  the  assailed  person  dies,  another  person  kills 
him  by  an  independent  act,  the  former  is  guilty  of  murder,  and  this  was 
held  error. 

This  case  does  not,  however,  come  within  the  principle  of  that  case. 
Here  a  mortal  wound  was  given.  Physicians  were  called  in  who  pre- 
scribed for  and  treated  the  wounded  man.  Morphine  was  administered, 
and,  it  is  claimed,  in  such  unreasonably  large  quantities  that  it  caused 
death.  It  was  not  claimed  that  these  physicians  were  deficient  in 
medical  skill,  or  that  morphine  in  proper  quantities,  and  at  proper 
times,  should  not  have  been  administered,  or  that  the  deceased  could, 
under  any  treatment,  or  in  the  absence  of  all  treatment,  have  survived. 
Admitting  the  correctness  of  the  authority  relied  upon,  what  applica- 
tion can  such  a  rule  have  to  cases  like  the  present?  If  death  was 
actually  produced  by  morphine,  can  it  be  said  in  view  of  the  facts 
"that  another  person  killed  the  deceased  by  an  independent  act?" 
Here  morphine  was  administered  as  a  medicine  by  competent  and 
skilful  physicians ;  it  was  a  proper  and  appropriate  medicine  to  be 
given.  Was  it  the  independent  act  of  the  physicians  who  prescribed, 
or  of  the  nurses  who  administered  the  morphine?  Was  it  the  mortal 
wound  likely  to  cause  death  at  any  moment,  or  an  undue  quantity  of 
medicine  unskilfully  but  honestly  given  to  alleviate  suffering,  which 
aetuall}'  caused  death?  Were  the  last  powders,  which  constituted  the 
overdose,  given  during  the  dying  man's  last  moments,  or  so  recently 
before  death  that  they  could  not  have  caused  it  or  materially  con- 
tributed thereto?  How,  under  the  conflicting  theories  and  uncertainties 
which  would  inevitably  arise  in  such  a  case,  could  it  be  said  which  was 
the  real  cause?  Could  it  be  made  to  appear  with  clearness  and  cer- 
tainty that  not  the  wound,  but  the  medicines  administered  were  the  sole 
cause  of  the  death?  There  are  authorities  which  hold  that  the  burthen 
of  so  proving  would  rest  upon  the  accused,  in  cases  where  the  wound 
was  not  a  mortal  one.  The  position  which  counsel  seeks  to  establish 
amounts  to  this :  that  if  a  competent  physician  and  surgeon  in  the 
treatment  of  a  mortal  wound  directly  causes  death,  although  hastened 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  causation  is  given.  —  Ed. 


I 


342 


BUSH   V.   COMMONWEALTH.  [CHAP.  V. 


bv  never  so  short  a  period,  the  assailant  is  excused,  even  although 
death  would  inevitably  have  resulted  from  the  wound  under  any  or  in 
the  absence  of  all  treatment.  Such  is  not  the  law.  Neglect  or  mis- 
treatment, and  bevond  such  this  case  does  not  go,  will  not  excuse, 
except  in  cases  where  doubt  exists  as  to  the  character  of  the  wound. 
Where  death  results  in  a  case  like  the  present,  it  can  in  no  proper  or 
lecral  sense  be  said  to  be  the  independent  act  of  a  third  person.  In  a 
ca°se  where  the  wound  is  not  mortal,  the  injured  person  may  recover, 
and  thus  no  homicide  have  been  committed.  If,  however,  death  do 
result,  the  accused  will  be  held  responsible,  unless  it  was  occasioned, 
not  bv  the  wound,  but  by  grossly  erroneous  medical  treatment.  But 
where"  the  wound  is  a  mortal  one,  there  is  no  chance  for  the  injured 
person  to  recover,  and  therefore  the  reason  which  permits  the  showing 
of  death  from  medical  treatment  does  not  exist.  State  v.  Corbett,  1 
Jones  (Law),  267;  State  v.  Morphy,  33  la.  270:  11  Amer.  122,  note 
and  cases  cited ;  Roscoe's  Crim.  Ev.  717. 


BUSH  V.  COMMONWEALTH. 

Court  of  Appeals'  of  Kentucky.     1880. 

[Reported  18  Ky.  268.] 

HiNES,  J.^  .  .  .  The  following  instruction  is  also  objected  to,  to  wit : 
"  If  the  jurv  believe  from  the  evidence,  beyond  a  reasonable  doubt,  that 
the  defendant,  John  Bush,  in  Fayette  county,  and  before  the  finding  of 
the  indictment,  wilfully  shot  Annie  Vanmeter  with  a  pistol,  ana  that 
she  died  from  the  effects  of  the  wound  then  inflicted  upon  her,  whether 
said  wound  was  the  sole  cause  or  was  a  contributory  agency  in  pro- 
ducing death,  when  such  shooting  was  not  necessary,  and  not  reason- 
ably believed  by  the  defendant  to  be  necessary  for  his  own  protection 
from  immediate  death  or  great  bodily  harm  then  threatening  him.  the 
jury  should  find  the  defendant  guilty  :  guilty  of  murder  if  the  killing 
were  also  done  with  malice  aforethought,  or  guilty  of  manslaughter  if  the 
killing  were  done  in  sudden  heat  and  passion,  and  without  malice." 

It  is  proper  in  this  connection  to  state  that  the  evidence  was  such  as 
to  justify  the  jury  in  finding  that  the  wound  inflicted  by  the  shot  was 
neither  necessarily  nor  probably  mortal,  and  that  the  death  ensued,  not 
from  the  wound,  but  from  scarlet  fever,  negligently  communicated  by 
the  attending  physician. 

As  said  in  Commonwealth  v.  Hackett  (2  Allen,  141),  the  rule  of  the 
common  law  would  seem  to  be,  that  if  the  wound  was  a  dangerous 
wound,  that  is,  calculated  to  endanger  or  destroy  life,  and  death  ensued 
therefrom,  it  is  suflicient  proof  of  murder  or  manslaughter;  and  that 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  causation  is  given.  —  Ed. 


SECT.  III.]  BUSH   V,    COMMONWEALTH.  343 

the  person  who  inflicted  it  is  responsible,  though  it  may  appear  that 
the  deceased  miglit  have  recovered  if  he  had  taken  proper  care  of  him- 
self, or  submitted  to  a  surgical  operation,  or  that  unskilful  or  improper 
treatment  aggravated  the  wound  and  contributed  to  the  death,  or  that 
death  was  immediately  caused  by  a  surgical  operation  rendered  neces- 
sary by  the  condition  of  the  wound.  The  principle  on  which  this  rule 
is  founded  is  that  every  one  is  held  to  contemplate  and  to  be  responsi- 
ble for  the  natural  consequences  of  his  own  acts.  But  if  the  wound  is 
not  dangerous  in  itself  and  death  results  from  improper  treatment,  or 
from  disease  subsequently  contracted,  not  superinduced  by  or  resulting 
from  the  wound,  the  accused  is  not  guilty.  (1  Hale's  P.  C.  428 ;  Par- 
sons V.  State,  21  Ala.  301.)  When  the  disease  is  a  consequence  of  the 
wound,  although  the  proximate  cause  of  the  death,  the  person  inflicting 
the  wound  is  guilty,  because  the  death  can  be  traced  as  a  result  natu- 
rally flowing  from  the  wound  and  coming  in  the  natural  order  of  things  ; 
but  when  there  is  a  supervening  cause,  not  naturally  intervening  by 
reason  of  the  wound  and  not  produced  by  any  necessity  created  by  the 
wound,  the  death  is  by  the  visitation  of  Providence  and  not  from  the 
act  of  the  party  inflicting  the  wound.  In  the  case  under  consideration, 
the  fever  was  not  the  natural  consequence  of  the  wound,  nor  was  it 
produced  by  any  necessity  created  by  the  infliction  of  the  wound.  It  did 
not  render  it  necessary  to  have  the  wound  treated  by  a  physician  just 
recovering  from  the  scarlet  fever,  even  if  it  be  conceded  tliat  medical 
treatment  was  necessary  at  all.  If  the  death  was  not  connected  with 
the  wound  in  the  regular  chain  of  causes  and  consequences,  there 
ought  not  to  be  any  responsibility.  If  a  new  and  wholly  independent 
instrumentality  interposed  and  produced  death,  it  cannot  be  said  that 
the  wound  was  the  natural  or  proximate  cause  of  the  death.  (14 
Grattan,  601,  Livingston  v.  Commonwealth.)  This  view  of  the  law 
was  not  so  presented  to  the  jury  as  to  give  the  appellant  its  full  benefit. 
It  should  have  been  clearl}'  and  definitely  presented  to  the  jury  that  if 
thej'  believed  from  the  evidence  that  death  would  not  have  resulted 
from  the  wound  but  for  the  intervention  of  the  disease,  they  should  not 
find  the  accused  guilty  of  murder  or  manslaughter,  but  that  they  might 
find  him  guilty  of  wilfully  and  maliciously  shooting  and  wounding  under 
section  2,  article  6,  chapter  29,  General  Statutes  ;  or  of  shooting  and 
wounding  in  sudden  affraj',  or  in  sudden  heat  and  passion,  without 
malice,  under  section  1,  article  17,  chapter  29,  General  Statutes. 


344  STATE   V.   WOOD.  [CHAP.  V. 

STATE  V.   WOOD. 

Supreme  Court  of  Vermont.     1881. 

[Reported  53  Vt.  560.] 

Veazet  J.^  .  .  .  We  think  the  exception  to  the  charge  of  the 
court  to  the  juiy  in  response  to  the  sixth  request  must  be  sustained. 
Tiie  evidence  on  the  part  of  the  State  showed  that  Lurnan  A.  died 
from  the  effects  of  the  wound  inflicted  by  Alma,  and  not  from  that 
inflicted  by  Wood ;  and  their  evidence  tended  to  show  that  there  was 
no  concert  between  them,  but  that  each  acted  independently. 

The  court  instructed  the  jury  in  substance  that  although  Luman  A. 
died  of  the  wound  inflicted  by  Alma  and  not  from  that  inflicted  by 
Wood,  and  although  there  was  no  concert  between  them,  and  each  acted 
independently,  and  the}'  were  therefore  only  responsible  for  their  own 
acts  respectively,  still  if  the  wound  inflicted  by  Wood  was  mortal,  and 
would  in  course  of  time  have  killed  Luman  A.,  if  he  had  not  previously 
died  from  the  wound  inflicted  by  Alma,  and  although  he  did  not  die 
of  the  wound  by  Wood,  yet  the  latter  could  be  convicted  of  murder. 

The  court  was  in  error  in  the  assumption  tliat  a  man  can  be  con- 
victed of  murder  although  his  act  does  not  cause  the  death.  The 
question  does  not  turn  upon  the  moral  aspect  of  the  case.  The  intent 
to  murder  may  be  ncA-er  so  plain,  yet  if  something  intervenes  to  pre- 
vent the  consummation  of  the  intent,  if  death  does  not  follow  from  the 
act  of  the  accused,  he  is  not  in  law  a  murderer.  All  of  the  definitions 
of  murder  found  in  the  books  involve  the  idea  and  fact  of  a  killing. 
This  must  have  reference,  when  a  man  is  on  trial,  to  a  killing  by  him. 
If  one  inflicts  a  mortal  wound,  but  before  death  ensues,  another  kills 
the  same  person  by  an  independent  act,  without  concert  with,  or  pro- 
curement of,  the  first  man,  liow  can  he  be  said  to  have  done  the  killing? 
The  second  person  could  be  convicted  of  murder,  if  he  killed  with 
malice  aforethought,  and  to  convict  the  first  man  would  be  assuming 
that  he  killed  the  same  person  at  another  time.  See  State  v.  Scates, 
5  Jones  Law  (N.  C),  420. 

Upon  the  supposition  contained  in  the  request  and  charge,  and  upon 
the  showing  made  by  the  State  that  Luman  A.  died  from  the  shot 
given  by  Alma  and  not  by  that  given  by  AVood,  the  latter  could  not  be 
convicted  of  any  crime  under  this  indictment.  The  statute,  s.  12,  ch. 
120,  Gen.  Sts.,  providing  that  a  person  put  on  trial  for  murder  may  be 
acquitted  of  that,  and  found  guilty  of  manslaughter,  would  not  apply  to 
Wood's  case,  because  upon  the  supposition  stated,  there  was  no  death 
from  this  act.  The  evidence  on  the  part  of  the  State,  as  assumed  in 
the  supposition,  tends  to  show  that  Wood  is  guilty  of  an  assault  with 
intent  to  kill,  being  armed  with  a  dangerous  weapon.  The  statute  does 
not  provide  that  a  person  may  be  found  guilty  of  this  crime  under  an 
indictment  for  murder. 

^  Ouly  so  much  of  the  opinion  as  discusses  the  question  of  causation  is  given.  —  Ed. 


SECT.  III.]  PEOPLE   V.   LEWIS.  (345j 

PEOPLE  V.  LEWIS. 

Supreme  Court  of  Califorxia.     1899. 

[Reported  124  Cal.  551.] 

Temple,  J.^  .  .  .  Defendant  and  deceased  were  brothers-in-law,  and 
not  altogether  friendly,  although  the}-  were  on  speaking  and  visiting 
terms.  On  the  morning  of  the  homicide  the  deceased  visited  the  resi- 
dence of  the  defendant,  was  received  in  a  friendly  manner,  but  after  a 
while  an  altercation  arose,  as  a  result  of  which  defendant  shot  deceased 
in  the  abdomen,  inflicting  a  wound  that  was  necessarily  mortal.  Farrell 
fell  to  the  ground,  stunned  for  an  instant,  but  soon  got  up  and  went 
into  the  house,  saying:  '•  Shoot  me  again;  I  shall  die  anyway."  His 
strength  soon  failed  him,  and  he  was  put  to  bed.  Soon  afterward, 
about  how  long  does  not  appear,  but  within  a  very  few  minutes,  when 
no  other  person  was  present  except  a  lad  about  nine  years  of  age, 
nephew  of  the  deceased  and  son  of  the  defendant,  the  deceased  pro- 
cured a  knife  and  cut  his  throat,  inflicting  a  ghastly  wound  from  the 
efl'ect  of  which,  according  to  the  medical  evidence,  he  must  necessarily 
have  died  in  five  minutes.  The  wound  inflicted  by  the  defendant  sev- 
ered the  mesenteric  artery,  and  medical  witnesses  testified  that  under 
the  circumstances  it  was  necessarily  mortal,  and  death  would  ensue 
within  one  hour  from  the  effects  of  the  wound  alone.  Indeed,  the  evi- 
dence was  that  usually  the  eflTect  of  such  a  wound  would  be  to  cause 
death  in  less  time  than  that,  but  possibly  the  omentum  may  have  filled 
the  wound,  and  thus,  by  preventing  the  flow  of  the  blood  from  the 
body,  have  stayed  its  certain  effect  for  a  short  period.  Internal  hemor- 
rhage was  still  occurring,  and,  with  other  effects  of  the  gunshot  wound, 
produced  intense  pain.  The  medical  witnesses  thought  that  death  was 
accelerated  by  the  knife  wound.  Perhaps  some  of  them  considered  it 
the  immediate  cause  of  death. 

Now,  it  is  contended  that  this  is  a  case  where  one  languishing  from 
a  mortal  wound  is  killed  by  an  intervening  cause,  and,  therefore,  de- 
ceased was  not  killed  by  Lewis.  To  constitute  manslaughter,  the 
defendant  must  have  killed  some  one,  and  if,  though  mortally  wounded 
by  the  defendant,  Farrell  actually  died  from  an  independent  intervening 
cause,  Lewis,  at  the  most,  could  only  be  guilty  of  a  felonious  attempt. 
He  was  as  eflectually  prevented  from  killing  as  he  would  have  been  if 
some  obstacle  had  turned  aside  the  bullet  from  its  course  and  left 
Farrell  unwounded.  And  they  contend  that  the  intervening  act  was 
the  cause  of  death,  if  it  shortened  the  life  of  Farrell  for  any  period 
whatever. 

The  attorney  general  does  not  controvert  the  general  proposition 
here  contended  for,  but  argues  that  the  wound  inflicted  by  the  defend- 

1  Part  of  the  opinion  is  omitted.  —  £o. 


346  PEOPLE   V.   LEWIS.  [CHAP.  V. 

ant  Wcas  the  direct  canse  of  the  throat  cutting,  and,  therefore,  defendant 
is  criminally  responsible  for  the  death.  He  illus-trates  his  position  by 
snpposing  a  case  of  one  dangerously  wounded,  and  whose  wounds  had 
been  bandaged  by  a  surgeon.  He  says,  suppose  through  the  fever  and 
pain  consequent  upon  the  wound  the  patient  becomes  frenzied  and  tears 
away  the  bandage,  and  thus  accelerates  his  own  death ;  would  not  the 
defendant  be  responsible  for  a  homicide?  Undoubtedly  he  would  be, 
for  in  the  ease  supposed  the  deceased  died  from  the  wound,  aggra- 
vated, it  is  true,  by  the  restlessness  of  the  deceased,  but  still  the  wound 
intiicted  by  the  defendant  produced  death.  Whether  such  is  the  case 
here  is  the  question. 

The  attorney  general  seems  to  admit  a  fact  which  I  do  not  concede, 
that  the  gunshot  wound  was  not,  when  Farrell  died,  then  itself  directly 
contributory  to  the  death.  I  think  the  jury  were  warranted  in  finding 
that  it  was.  But  if  the  deceased  did  die  from  the  effect  of  the  knife 
wound  alone,  no  doubt  tlie  defendant  would  be  responsible,  if  it  was 
made  to  appear,  and  the  jury  could  have  found  from  the  evidence,  that 
the  knife  wound  was  caused  by  the  wound  inflicted  b}'  the  defendant 
in  the  natural  course  of  events.  If  the  relation  was  causal,  and  the 
wounded  condition  of  the  deceased  was  not  merelv  the  occasion  upon 
which  another  cause  intervened,  not  produced  by  the  first  wound  or 
related  to  it  in  other  than  a  causal  way,  then  defendant  is  guilty  of  a 
homicide.  But,  if  the  wounded  condition  only  afforded  an  opportunity 
for  another  unconnected  person  to  kill,  defendant  would  not  be  guilty 
of  a  homicide,  even  though  he  had  inflicted  a  mortal  wound.  In  such 
case,  I  think,  it  would  be  true  that  the  defendant  was  thus  prevented 
from  killing. 

The  case,  considered  under  this  view,  is  further  complicated  from  the 
fact  that  it  is  impossible  to  determine  whether  deceased  was  induced  to 
cut  his  throat  through  pain  produced  by  the  wound.  May  it  not  have 
been  from  remorse,  or  from  a  desire  to  shield  his  brother-in-law?  In 
either  case,  the  causal  relation  between  the  knife  wound  and  the  gun- 
shot wound  would  seem  to  be  the  same.  In  either  case,  if  defendant  had 
not  shot  the  deceased,  the  knife  wound  would  not  have  been  inflicted. 

Suppose  one  assaults  and  wounds  another,  intending  to  take  life,  but 
the  wound,  though  painful,  is  not  even  dangerous,  and  the  wounded 
man  knows  that  it  is  not  mortal,  and  yet  takes  his  own  life  to  escape 
pain,  would  it  not  be  suicide  only?  Yet  the  wound  inflicted  by  the 
assailant  would  have  the  same  relation  to  death  which  the  original 
wound  in  this  case  has  to  the  knife  wound.  The  wound  induced  the 
suicide,  but  the  wound  was  not,  in  the  usual  course  of  things,  the  cause 
of  the  suicide. 

Though  no  case  altogether  like  this  has  been  found,  yet,  as  was  to 
have  been  expected,  the  general  subject  has  often  been  considered.  In 
1  Hale's  Pleas  of  the  Crown,  428,  the  law  is  stated.  So  far  as  mate- 
rial here,  his  views  may  be  thus  summarized  :  1.  If  one  gives  another 
a  dangerous  wound  which  might  by  very  skilful  treatment  be  cured, 


S-ECT.  III.]  .  PEOPLE    V.    LEWIS.  347 

and  is  not,  it  is  a  case  of  homicide.  2.  If  one  inflicts  a  dangerous 
wound,  and  tlie  man  dies  from  the  treatment,  "  if  it  can  clearly  appear 
tliat  the  medicine  and  not  the  wound  was  the  cause  of  the  death,  it 
seems  it  is  not  homicide,  but  then  it  must  appear  clearly  and  certainly 
to  be  so."  3.  If  one  receives  a  wound,  not  in  itself  mortal,  and  fever 
or  gangrene  sets  in  because  of  improper  treatment  or  unruly'  conduct  of 
the  patient,  and  death  ensues,  it  is  homicide,  "for  that  wound,  though 
it  was  not  the  immediate  cause  of  his  death,  yet  it  was  the  mediate 
cause  thereof,  and  the  fever  or  gangrene  was  the  immediate  cause  of 
his  death,  yet  the  wound  was  the  cause  of  the  gangrene  or  fever,  and 
so,  consequently,  is  causa  causally  4.  One  who  hastens  the  death  of 
a  person  languishing  with  a  mortal  disease  is  guilty  of  a  homicide,  for 
the  death  is  not  merely  b}-  a  visitation  of  Providence,  but  the  hurt  has- 
tens it,  and  the  wrongdoer  cannot  thus  apportion  the  responsibilit}-, 
etc.  It  would  make  no  difference,  I  presume,  if  the  person  killed 
was  languishing  from  a  mortal  wound,  rather  than  from  an  ordinary 
disease. 

In  State  v.  Scates,  5  Jones,  420,  a  child  was  found  dead,  badl}' 
burned,  and  with  a  wound  from  a  blow  on  the  head.  The  burning  was 
admitted  b}'  defendant,  but  the  blow  was  not,  and  it  was  not  proven 
who  inflicted  it.  The  medical  witness  thought  the  burning  was  the 
primary  cause  of  death,  but  the  blow  ma}-  have  hastened  it.  The  jury 
was  told  that  if  it  was  doubtful  which  was  the  immediate  cause  of  death, 
the}'  must  acquit,  but  if  they  found  that  the  burning  was  the  primary 
cause  of  deatli,  and  the  blow  onl}'  hastened  it,  they  could  convict. 

The  case  was  revei'sed,  the  appellate  court  holding  that  the  blow 
might  have  been  the  independent  act  of  another,  and,  if  it  hastened  the 
death,  it,  and  not  the  burning,  was  the  cause  of  death. 

In  Bush  V.  Commonwealth,  78  Ky.  268,  the  deceased  received  a 
wound  not  necessarily  mortal,  and,  in  consequence,  was  taken  to  a 
hospital,  where  she  took  scarlet  fever  from  a  nurse  and  died  of  the 
fever.  The  court  said:  "When  the  disease  is  a  consequence  of  the 
wound,  although  the  proximate  cause  of  the  death,  the  person  inflicting 
the  wound  is  guilty,  because  the  death  can  be  traced  as  a  result  natu- 
rally flowing  from  the  wound  and  coming  in  the  natural  order  of  things  ; 
but  when  there  is  a  supervening  cause,  not  naturally  intervening  b}' 
reason  of  the  wound,  the  death  is  by  visitation  of  Providence,  and  not 
from  the  act  of  the  party  inflicting  the  wound.  ...  If  the  death  was 
not  connected  with  the  wound  in  the  regular  chain  of  causes  and  con- 
sequences, there  ought  not  to  be  au}-  responsibility." 

Tlie  last  case,  in  m}-  opinion,  so  far  as  it  goes,  correctly  states  the 
law.  The  facts  of  this  case  do  not  bring  it  strictlj'  within  any  of  the 
propositions  found  in  Hale's  Pleas  of  the  Crown.  The  second  and  third 
propositions  both  predicate  a  wound  not  necessarily  mortal.  What  the 
law  would  have  been  in  the  second  case  had  the  wound  been  mortal, 
and  the  applications  had  hastened  the  death,  is  not  stated.  It  seems 
to  me,  however,  the  case  of  a  person  already  languishing  from  a  mortal 


348  PEOPLE    V.   LEWIS.  [CHAP.  V. 

wound  is  precisely  that  of  one  suffering  from  a  mortal  disease.  Cer- 
tainly the  wilful  and  unlawful  killing  of  such  a  person  would  be  a  fel- 
on v,  and  it  cannot  be  true  that  the  first  offender  and  the  last  can  each 
be  guilty  of  murdering  the  same  man,  — if  they  had  no  connection  with 
each  other,  and  both  wounds  were  not  actively  operating  to  produce 
death  when  it  occurred. 

But  why  is  it  that  one  who  inflicts  a  wound  not  mortal  is  guilty  of  a 
homicide,  if  through  misconduct  of  the  patient  or  unskilful  treatment 
gangrene  or  fever  sets  in,  producing  a  fatal  termination,  —  when,  if  it 
can  be  clearly  made  to  appear  that  the  medicine  and  not  the  wound 
was  the  cause  of  the  death,  he  is  not  guilty  of  a  homicide?  In  each 
case  if  the  wound  had  not  been,  the  treatment  would  not  have  been, 
and  the  man  would  not  then  have  died.  In  each  case  the  wound  occa- 
sioned the  treatment  which  caused  or  contributed  to  the  death.  The 
reason,  I  think,  is  found  in  the  words  advisedl}'  used  in  the  last  sen- 
tence. In  the  one  case  the  treatment  caused  the  death,  and  in  the 
other  it  merely  contributed  to  it.  In  one  case  the  treatment  aggravated 
the  wound,  but  the  wound  thus  aggravated  produced  death.  In  the 
other  the  wound,  through  the  occasion  of  the  treatment,  did  not  con- 
tribute to  the  death,  which  occurred  without  an}'  present  contribution 
to  the  natural  effect  of  the  medicine  from  the  wound.  Take,  for  in- 
stance, the  giving  of  a  dose  of  morphine,  by  mistake,  sufficient  to  end 
life  at  once.  In  such  case  it  is  as  obvious  that  the  treatment  produced 
death  as  it  would  have  been  had  the  physician  cut  off  his  patient's  head. 
But  see  People  v.  Cook,  39  Mich.  236  ;  33  Am.  Rep.  380.  In  this  case 
it  appears  that  defendant  has  inflicted  a  dangerous  wound,  but  it  was 
contended  by  the  defence  that  death  was  caused  by  an  overdose  of 
morphine.  Defendant  asked  an  instruction  as  follows :  "If  the  jury 
believe  that  the  injur}-  inflicted  by  the  prisoner  would  have  been  fatal, 
but  if  death  was  actually  produced  by  morphine  poisoning,  they  must 
acquit."  The  instruction  was  refused,  but  the  jury  were  told  that  if  the 
wound  was  not  in  itself  mortal,  and  death  was  caused  solely  by  the 
morphine,  they  must  acquit.  The  action  of  the  trial  court  was  sus- 
tained, on  the  ground  that  a  mortal  wound  had  been  given  which  neces- 
sitated medical  treatment;  that  the  physicians  were  competent  and 
acted  in  good  faith ;  and  that  it  was  not  made  clearly  to  appear  that 
the  morphine  solely  produced  death,  and  that  the  wound  did  not  at 
all  contribute  to  the  death  at  that  time.  Under  the  authorities  this 
was  equivalent  to  a  finding  that  the  wound  did  not  contribute  to  the 
death. 

This  case  differs  from  that  in  this,  that  here  the  intervening  cause, 
which  it  is  alleged  hastened  death,  was  not  medical  treatment,  designed 
to  be  helpful,  and  which  the  deceased  was  compelled  to  procure  because 
of  the  wound,  but  was  an  act  intended  to  produce  death,  and  did  not 
result  from  the  first  wound  in  the  natural  course  of  events.  But  we 
have  reached  the  conclusion  by  a  course  of  argument  unnecessarily 
prolix,  except  from  a  desire  to  consider  fully  the  earnest  and  able  ar- 


SECT.  III.]  GAY   V.    STATE.  349 

gument  of  the  defendant,  that  the  test  is — or  at  least  one  test  — 
whether,  when  the  death  occurred,  the  wound  inflicted  by  the  defend- 
ant did  contribute  to  the  event.  If  it  did,  although  other  independent 
causes  also  contributed,  the  causal  relation  between  the  unlawful  acts 
of  the  defendant  and  the  death  has  been  made  out.  Here,  when  the 
throat  was  cut,  Farrell  was  not  merely  languishing  from  a  mortal 
wound.  He  was  actually  dying,  —  and  after  the  throat  was  cut  he 
continued  to  languish  from  both  wounds.  Drop  by  drop  the  life  cur- 
rent went  out  from  both  wounds,  and  at  the  very  insiant  of  death  the 
gunshot  wound  was  contributing  to  the  event.  If  the  throat  cutting 
had  been  by  a  third  person,  unconnected  with  the  defendant,  he  might 
be  guilt}' ;  for,  although  a  man  cannot  be  killed  twice,  two  persons, 
acting  independently,  may  contribute  to  his  death,  and  each  be  guilty 
of  a  homicide.  A  person  dying  is  still  in  life,  and  may  be  killed  ;  but 
if  he  is  dying  from  a  wound  given  by  another,  both  may  properly  be 
said  to  have  contributed  to  his  death. 


GAY   V.    STATE. 

Supreme  Court  of  Tennessee.     1891. 

[Reported  90  Tenn.  «45.] 

Lea,  J.  The  plaintiff  in  error  was  indicted  and  convicted  of  a  nui- 
sance in  keeping  and  maintaining  a  hog-pen  in  a  filthy  condition. 
There  were  several  witnesses  who  proved  it  was  a  nuisance.  There 
were  several  who  proved  that  the  pen  was  kept  remarkably  clean,  and 
was  no  nuisance ;  and  several  proved  that,  if  there  was  a  nuisance,  it 
was  caused  by  a  number  of  hog-pens  in  the  neighborhood. 

His  Honor,  among  other  things,  charged  the  jur}' :  "  If  the  jury  find 
that  the  smell  created  by  the  defendant's  pen  was  not  sufficient  within 
itself  to  constitute  a  nuisance,  yet  it  contributed  with  other  pens  in  the 
neighborhood  to  forming  a  nuisance,  the  defendant  would  be  guilty." 

This  was  error.  The  defendant  can  only  be  held  liable  for  the  con- 
sequences which  his  act  produced.  The  nuisance  complained  of  must 
be  the  natural  and  direct  cause  of  his  own  act. 


350  COMMONWEALTH   V.   CAMPBELL.  [CHAP.  V. 


i^    -    lu 


A  C 
COMMONWEALTH   v.   CAMPBELL. 

Supreme  Judicial  Court  of  Massachusetts.     1863. 

[Reported  7  All.  541.] 

Indictment  for  murder,  by  shooting  William  Currier  on  the  14th  of 
July,  1863.  The  trial  took  place  in  December,  1863,  before  Bigelow, 
C.  J.,  and  Metcalf,  Merrick,  and  Hoar,  JJ.  Foster,  A.  G.,  appeared 
for  the  Commonwealth,  and  J.  G.  Abbott  and  B.  F.  Russell,  for  the 

prisoner. 

The  homicide  was  committed  near  the  armory  in  Cooper  Street,  in 
Boston,  at  about  seven  o'clock  in  the  evening,  during  a  riot  which 
grew  out  of  the  enforcement  of  a  draft  of  men  for  the  army ;  and  the 
evidence  offered  by  the  government  tended  to  show  that  the  prisoner 
was  there  participating  in  the  riot,  with  a  large  number  of  other 
persons.^  .  .    . 

It  appeared  that  a  military  force  was  called  out  to  suppress  the  riot 
in  Cooper  Street,  and  was  stationed  in  the  armory,  and  that  the  mob 
were  fired  upon  by  the  soldiers,  and  the  soldiers  by  the  mob.  After  the 
evidence  on  both  sides  was  closed,  the  attorney  general  requested,  for 
the  convenience  of  counsel,  a  decision  upon  the  following  prayer  for 
instructions:  "That  whether  Currier  was  killed  by  a  shot  from  within 
or  without  the  armory,  all  the  parties  unlawfully  engaged  in  the  trans- 
actions which  resulted  in  the  homicide  were  at  common  law  guilty,  at 
least  of  manslaughter." 

Bigelow,  C.  J.  The  instruction  asked  for  by  the  attorney  general, 
as  we  understand  it,  is  substantially  this :  If  the  defendant  was  a  par- 
ticipator in  the  riotous  assembl}-,  and,  during  the  attack  made  by  it  on 
the  armory,  a  homicide  took  place,  the  defendant  is  in  law  guilty  of 
manslaughter,  although  the  evidence  may  fail  to  show  whether  the  shot 
which  killed  the  deceased  was  fired  by  the  rioters  with  whom  the 
prisoner  was  acting  in  concert,  or  by  the  soldiers  who  were  within  the 
armor}-,  and  engaged  in  resisting  the  attack  made  upon  the  building 
by  the  rioters  outside.  This  seems  to  us  to  present  a  novel  question. 
No  authority  has  been  cited  which  directh'  supports  the  position  as- 
sumed by  the  attorney'  general,  and  so  far  as  we  know  there  is  none  to 
be  found.  This  consideration,  though  b}'  no  means  decisive,  is  entitled 
to  some  weight,  because  the  law  of  homicide,  in  its  application  to 
almost  every  variety  and  combination  of  circumstances,  especiall}'  to 
the  taking  of  life  by  persons  engaged  in  a  tumult  or  riot  or  other  un- 
lawful enterprise  or  design,  is  perhaps  more  fully  and  clearly  settled 
than  any  other  branch  of  the  law.  But  we  are  bound  to  examine  the 
question  further,  and  ascertain,  if  we  can,  whether  the  doctrine  in 
question  has  any  just  foundation  in  the  recognized  principles  of  law  by 
which  criminal  responsibility  for  the  acts  of  others  is  regulated  and 
governed. 

1  Part  of  the  case  discussing  a  question  of  evidence  is  omitted.  —  Ed. 


SECT.  III.]  COMMONWEALTH   V.   CAMPBELL.  351 

There  can  be  no  doubt  of  the  general  rule  of  law,  that  a  person  en- 
gaged in  the  commission  of  an  unlawful  act  is  legally  responsible  for 
all  the  consequences  which  may  naturally  or  necessaril}'  flow  from  it, 
and  that,  if  he  combines  and  confederates  with  others  to  accomplish 
an  illegal  purpose,  he  is  liable  crimlnaliter  for  the  acts  of  each  and  all 
who  participate  with  him  in  the  execution  of  the  unlawful  design.     As 
they  all  act  in  concert  for  a  common  object,  each  is  the  agent  of  all  the 
others,  and  the  acts  done  are  therefore  the  acts  of  each  and  all.     This 
doctrine,  as  applied  to  cases  of  homicide,  is  fully  stated  in  1  Hale  F.  C. 
441,  in  a  quotation  from  Dalton  in  these  words:   "If  divers  persons 
come  in  one  compan}'  to  do  an}'  unlawful  thing,  as  to  kill,  rob,  or  beat 
a  man,  or  to  commit  a  riot,  or  to  do  any  other  trespass,  and  one 
of  them  in  doing  thereof  kill  a  man,  this  shall  be  adjudged  murder  in 
them  all  that  are  present  of  that  part}'  abetting  him  and  consenting 
to' the  act  or  read}'  to  aid  him,  although  the}'  did  but  look  on."     So  in 
1  East  P.  C.  257,  it  is  laid  down  that  "  where  divers  persons  resolve 
generally  to  resist  all  opposers  in  the  commission  of  any  breach  of  the 
peace,  and  to  execute  it  witli  violence,  or  in  such  a  manner  as  natu- 
rally tends  to  raise  tumults  and  affrays  ;  as  by  committing  a  violent 
disseisin  with  great  numbers,  or  going  to  beat  a  man,  or  rob  a  park,  or 
standing  in  opposition  to  the  sheriff's  posse,  they  must  at  their  peril 
abide  the  event  of  their  actions ; "  and  if  in  doing   any  of  these  or 
similar  acts  any  person  interfering  with  them  is  killed,  all  who  took 
part  in  the  fact  or  abetted  thereto  are  guilty  of  murder.    These  citations 
to  which  many  others  of  a  similar  tenor  might  be  added,  show  that  the 
rule  of  criminal  responsibility  for  the  acts  of  others  is  subject  to  the 
reasonable  limitation  that  the  particular  act  of  one  of  a  party  for  which 
his  associates  and  confederates  are  to  be  held  liable  must  be  shown  to 
have  been  done  for  the  furtherance  or  in  prosecution  of  the  common 
object  and  design  for  which  they  combined  together.     Without  such 
limitation,  a  person  might  be  held  responsible  for  acts  which  were  not 
the  natural  or  necessary  consequences  of  the  enterprise  or  undertaking 
in  which  he  was  engaged,  and  which  he  could  not  either  in  fact  or  in 
law  be  deemed  to  have  contemplated  or  intended.     No  person  can  be 
held  guilty  of  homicide  unless  the  act  is  either  actually  or  construc- 
tively his,  and  it  cannot  be  his  act  in  either  sense  unless  committed  by 
his  own  hand  or  by  some  one  acting  in  concert  with  him  or  in  further- 
ance of  a  common  object  or  purpose.     Certainly  that  cannot  be  said 
to  be  an  act  of  a  party  in  any  just  sense,  or  on  any  sound  legal  princi- 
ple, which  is  not  only  not  done  by  him,   or  by  any  one  with  whom 
he  is  associated  or  connected  in  a  common  enterprise,  or  in  attempting 
to  accomplish  the  same  end,  but  is  committed  by  a  person  who  is  his 
direct  and  immediate  adversary,  and  who  is,  at  the  moment  when  the 
alleged  criminal  act  is  done,  actually  engaged  in  opposing  and  resist- 
ing him  and  his  confederates  and  abettors  in  the  accomplishment  of 
the  unlawful  object  for  which  they  are  united.     Suppose,  for  example, 
a  burglar  attempts  to   break  into  a   dwelling-house,  and   the  owner 


L 


352 


COMMONWEALTH   V.   CAMPBELL. 


[chap.  V. 


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or  occupant,  while  striving  to  resist  and  prevent  the  unlawful  entrance, 
I)}'  misadventure  kills  his  own  servant.  Can  the  burglar  in  such  ease 
be  deemed  guilty  of  criminal  homicide  ?  Certainly  not.  The  act  was 
not  done  by  him,  or  with  his  knowledge  or  consent ;  nor  was  it  a  neces- 
sary or  natural  consequence  of  the  commission  of  the  oflfence  in  which 
he  was  eno-aced.  He  could  not  therefore  have  contemplated  or  in- 
tended it.  Another  illustration  will  perhaps  be  more  apposite  to  the 
case  before  us.  Suppose,  during  the  progress  of  the  riot  in  which  it  is 
alleged  the  prisoner  was  engaged,  and  while  the  soldiers  and  others  in 
possession  of  the  armory  were  in  the  act  of  repelling  the  attack  of  the 
mob  in  the  street  by  firing  upon  it  with  a  cannon  which  was  used  on 
the  occasion,  that  it  had  burst  by  reason  of  some  secret  defect,  and 
killed  several  of  those  who  were  in  its  immediate  vicinity ;  or  that 
a  soldier  while  handling  his  musket  had  by  accident  inflicted  a  mortal 
wound  on  himself ;  it  would  hardly  be  contended  that  in  either  of  these 
cases  the  whole  body  of  rioters  could  be  held  legally  responsible  for 
criminal  homicide,  by  reason  of  the  lives  that  were  thus  destroyed. 
And  3'et  there  is  no  real  distinction  between  the  cases  supposed  and 
that  of  the  prisoner  at  the  bar,  if  the  rule  insisted  on  by  the  attorney 
general  is  a  sound  one.  The  taking  of  human  life,  under  the  circum- 
stances supposed,  in  a  certain  sense  was  the  result  of  the  unlawful  acts 
of  the  mob  —  that  is,  it  would  not  have  occurred  but  for  the  riot  which 
furnished  the  cause  and  occasion  of  the  use  of  the  musket  or  cannon. 

Indeed,  it  seems  to  us  that  in  every  aspect  the  doctrine  contended 
for,  if  followed  to  its  legitimate  and  logical  conclusion,  would  lead  to 
extraordinary  consequences.  It  would  render  everybody  who  partici- 
pated in  a  transaction,  whether  acting  in  concert  or  in  opposition, 
whether  united  in  a  common  design  or  arrayed  on  opposite  sides  in 
a  contest  or  affray  in  which  each  contending  party  was  striving  to 
defeat  the  purposes  of  the  other,  if  all  acted  without  legal  justifica- 
tion, responsible  for  every  criminal  act  which  was  done  b}'  any  person 
during  the  progress  of  the  affair  in  which  the}'  were  all  engaged.  Nor, 
in  applying  the  principle  in  question  to  a  case  like  the  one  before  us, 
can  we  see  any  good  reason  why  the  soldiers  who  defended  the  armory 
and  resisted  the  mob,  if  it  should  turn  out  that  they  acted  without 
sufficient  legal  authority  to  justify  their  acts,  might  not  be  held  guilty 
of  manslaughter  for  homicides  committed  by'  the  rioters,  if  the  latter 
are  to  be  held  responsible  for  deaths  caused  by-  the  acts  of  the  soldiers  ? 
But  the  rules  of  law  do  not  give  any  countenance  to  such  a  doctrine. 
The  real  distinction  is  between  acts  which  a  man  does  either  actually 
or  constructively',  by  himself  or  his  agents  or  confederates,  and  those 
which  were  done  by  others  acting  not  in  concert  with  him  or  to  effect 
a  common  object,  but  without  his  knowledge  or  assent,  either  express 
or  implied.  For  the  former  the  law  holds  him  strictly  responsible,  and 
for  all  their  necessary  and  natural  consequences,  which  he  is  rightfully 
deemed  to  have  contemplated  and  intended.  For  the  latter  he  is  not 
liable,  because  they  are  not  done  by  himself  or  by  those  with  whom  he 


SECT.  III.]  COMMONWEALTH    V.    CAMPBELL.  353 

is  associated,  and  no  design  to  commit  them  or  intent  to  bring  about 
the  results  wliich  flow  from  them  can  be  reasonably  imputed  to  him. 
So  the  rule  of  law  was  manifestly  understood  by  the  framers  of  the 
clause  contained  in  Rev.  Sts.  c.  129,  §  6,  reenacted  in  Gen.  Sts.  c.  164, 
§  6,  which  provides  that  if  any  officer,  magistrate,  or  other  person,  act- 
ing in  the  suppression  of  an  unlawful  assembl}',  tumult,  or  riot  is  killed 
or  wounded,  all  persons  taking  part  in  such  violation  of  law  shall  be 
answerable  therefor.  This  was  clearly  not  intended  as  a  limitation  of 
the  liability  at  common  law,  but  only  as  declaratory  of  the  rule  as 
it  then  existed  and  was  understood. 

The  case  of  the  Philadelpliia  rioters,  cited  b}'  the  attorney'  general 
from  the  Appendix  to  Wharton's  Law  of  Homicide,  477,  is  obscurely 
and  imperfectly  reported.  If  it  can  be  supported  at  all  as  a  true  expo- 
sition of  the  law,  it  can  only  be  upon  the  ground  that  both  parties  or 
sides  had  a  common  object  in  view,  namely,  a  breach  of  the  peace,  and 
that  both  went  out  b}-  an  agreement  or  mutual  understanding  to  en- 
gage in  an  affray  or  riot.  If  such  was  the  fact,  then,  as  in  the  case 
of  a  duel,  although  to  accomplish  the  common  purpose  they  took  oppo- 
site sides,  still  they  might  all  well  have  been  deemed  to  have  con- 
federated together  in  an  unlawful  enterprise,  and  thus  to  have  become 
responsible,  on  the  principle  already  stated,  for  a  criminal  act  done  in 
pursuance  of  the  common  design  b}'  an}'  one  of  tlieir  confederates, 
with  whichever  side  he  may  have  acted  in  the  affray. 

It  may  properly  be  added  that  we  can  see  no  foundation  in  any 
aspect  of  the  case  for  the  distinction  suggested  b}-  the  attorney  general 
as  to  the  degree  of  homicide  of  which  the  defendant  would  be  guilty, 
in  the  event  that  the  jury  should  find  that  the  deceased  was  killed 
by  a  shot  fired  b}'  the  soldiers  in  the  armory,  and  not  b}'  the  mob.  If 
the  doctrine  contended  for  is  correct,  there  can  be  no  valid  reason  foi 
holding  the  defendant  guilt}'  of  manslaughter  onl}-.  If  he,  as  one 
of  tlie  riotous  conspirators,  is  liable  at  all  for  acts  done  by  the  soldiers 
and  others  cooperating  with  them,  his  guilt  must  be  the  same  in  degree 
as  if  a  homicide  was  committed  by  one  of  the  rioters  with  whom  he 
was  acting  in  concert.  If  it  was  his  act  at  all,  then  it  was  committed 
by  him  or  his  confederates  while  engaged  in  an  unlawful  enterprise, 
and,  according  to  well-settled  principles,  it  would  be  murder,  and  not 
manslaughter.  But,  for  the  reason  already  given,  it  cannot  be  regarded 
as  an  act  for  which  he  is  in  law  responsible.  If  the  homicide  was  the 
result  of  a  shot  fired  by  the  soldiers  or  other  persons  in  the  armor}', 
acting  together  in  defence  against  the  riotous  assembly,  the  defendant 
cannot  be  held  guilty  of  either  murder  or  manslaughter.  The  jury  will 
accordingly  be  instructed  that,  unless  they  are  satisfied  beyond  a 
reasonable  doubt  that  the  deceased  was  killed  by  means  of  a  gun  or 
other  deadly  weapon  in  the  hands  of  the  prisoner,  or  of  one  of  the 
rioters  with  whom  he  was  associated  and  acting,  he  is  entitled  to  an 
acquittal.  The  jury  acquitted  the  prisoner.^ 

1  Ace.  Butler  v.  People,  125  111.  641,  18  N.  E.  338 ;  Com.  v.  Moore  (Ky),  88  S.  W. 
1085.       Ed.  23 


I 


354  KEATON   V.   STATE.  [CHAP.  V. 


KEATOX  V.    STATE. 

CouBT  OF  Criminal  Appeals  of  Texas.    1900. 

[Reported  41  Texas,  Cr.  /?.  621.J 

Brooks,  J.»  .  .  .  The  court,  among  other  things,  charged  the  jury 
as  follows:  "  Unless  you  further  believe  from  the  evidence,  beyond  a 
reasonable  doubt,  that  defendant  Pearce  Keaton  entered  into  a  con- 
spiracy with  Bud  Newman,  Jeff  Taylor,  and  Bill  Taylor,  or  either  of 
them,  to  commit  the  offence  of  robbery,  —  that  is,  to  rob  the  express 
company  on  the  Gulf,  Colorado  &  Santa  Fe  Railway  Company's  road  at 
Coleman  Junction,  —  and  agreed  among  themselves  as  to  the  part  each 
was  to  perform  in  the  said  enterprise  of  robbery,  and  that  in  pursuance 
of  said  agreement  and  conspiracy  defendant,  with  the  said  parties 
named,  or  either  one  of  them,  did  go  to  Coleman  Junction,  and  that  said 
Coleman  Junction  was  and  is  in  Coleman  County,  Texas,  and  did  then 
and  there,  in  pursuance  of  said  conspiracy,  attempt  to  commit  and  per- 
petrate the  crime  of  robbery,  and  for  the  purpose  of  accomplishing  said 
robbery,  and  for  the  purpose  of  aiding  and  assisting  in  its  perpetration, 
tlie  defendant  either  alone  or  acting  together  with  said  Newman  and 
Jeff  and  Bill  Taylor,  or  either  one  of  them,  with  force  and  arms,  and 
against  the  consent  of  Lee  Johnson,  and  upon  express  malice,  wilfully 
compelled  the  said  Lee  Johnson  to  leave  a  place  of  safety,  if  an}-,  and 
with  force  and  arms  knowingly  compelled  said  Lee  Johnson  to  go, 
against  his  will,  to  a  place  where,  in  case  of  resistance  and  perpetra- 
tion of  said  offence  of  robbery,  it  was  reasonably  apparent  to  defend- 
ant and  those  acting  with  him  that  said  Lee  Johnson  would  naturally 
and  necessarily  be  exposed  to  death,  and  likely  lose  his  life  ;  and  3-ou 
further  believe  that,  knowing  these  natural,  probable,  and  necessar}- 
consequences,  if  an}',  defendant  or  any  other  person,  if  an}',  acting  with 
him,  so  compelled  said  Lee  Johnson  to  be  in  such  position,  and  that  the 
placing  of  said  Lee  Johnson  in  such  position,  if  any,  was  in  pursuance 
of  said  conspiracy  to  rob,  if  any,  and  in  furtherance  and  in  aid  thereof, 
and  that  while  in  said  position  R.  E.  Buchanan,  in  resistance  to  the 
perpetration  of  said  attempted  robbery,  «if  any,  did  innocently  shoot 
and  kill  said  Lee  Johnson  on  or  about  the  9th  day  of  June,  1898,  in 
Coleman  County,  Texas,  not  intending  to  do  so,  but  actually  intending 
to  kill  the  parties  attempting  to  perpetrate  said  robbery,  if  any,  and 
that  said  killing  was  caused  and  directly  brought  about  by  the  acts  of 
defendant,  or  those  acting  with  him,  if  any,  in  so  compelling  said  Lee 
Johnson  to  be  and  remain  in  said  position,  —  then  you  are  instructed 
the  defendant  would  be  guilty  of  murder  in  the  first  degree,  and  you 
will  so  find  in  your  verdict,  and  assess  the  punishment,  as  hereinbefore 
instructed.  If  you  do  not  so  believe,  you  will  acquit."  We  think  the 
above-copied  charge  very  clearly  presents  the  law  applicable  to  the 
facts.     Article  77,  Penal  Code,  provides  :  "  If  any  one,  by  employing  a 

1  Onlv  so  much  ot  the  case  as  discusses  the  Question  of  causation  is  riven.— Ed. 


SECT.  III.]  KEATON   V.   STATE.  355 

child  or  other  person  who  cannot  be  punished  to  commit  an  offence, 
or  by  an}-  means  such  as  laying  poison  where  it  maj-  be  taken,  a^d 
with  intent  that  it  shall  be  taken,  or  by  preparing  any  other 
means  by  which  a  person  ma}'  injure  himself,  and  with  intent  that 
such  person  shall  thereby  be  injured,  or  by  any  other  indirect  means 
cause  another  to  receive  an  injury  to  his  person  or  property,  the 
offender  by  the  use  of  such  indirect  means  becomes  a  principal." 
In  Blain  v.  State,  30  Texas  Criminal  Appeals,  702,  Judge  Hurt, 
delivering  the  opinion  of  the  Court,  said:  "Again,  if  a  person 
instigates  or  agrees  with  another  to  commit  a  crime,  and  the  person 
so  instigated  commits  a  crime  different  from,  but  one  likel}'  to  be 
caused  by  or  become  the  reasonable  result  of,  the  crime  intended, 
the  instigator  is  an  accessor}-  before  the  fact,  and,  if  present  at  its  com- 
mission, is  a  principal  thereto."  Again,  in  Reddick  v.  Commonwealth 
(Kentucky),  33  Southwestern  Reporter,  417,  the  court  approved  the 
following  charge:  "  If  the  jury  believe  from  the  evidence,  to  the  ex- 
clusion of  all  reasonable  doubt,  that  accused  wilfully,  maliciously,  and 
feloniously  set  fire  to  and  burned  the  Miller  Hotel,  then  being  oc- 
cupied by  Mrs.  Masters  as  a  residence,  and  that  by  reason  of  that 
burning  she  lost  her  life,  then  the  jury  should  find  accused  guilty  of 
murder,  although  accused  may  not  have  intended  or  calculated  the 
death  of  Mrs.  Masters  as  the  result  of  such  burning."  Commenting 
upon  the  charge,  the  court  say:  "The  instruction,  we  take  it,  em- 
braces a  great  principle  of  law,  and  that  the  same  is  so  uniformly  held 
and  acted  upon  in  all  criminal  prosecutions  as  to  need  no  special 
citation  of  authorities."  Now,  applying  the  principle  laid  down  in  the 
foregoing  authorities  to  the  question  before  us,  we  find  that  appellant, 
together  with  several  others,  went  to  the  scene  of  the  homicide  for  the 
purpose  of  robbing  the  train  ;  that  they  forced  deceased  to  go  with 
them,  after  stopping  the  train,  down  to  the  door  of  the  express  car, 
having  been  previously  warned  by  the  engineer  that  some  one  would 
probably  commence  shooting  at  them  from  the  rear  end  of  the  car, 
where  the  passenger  coaches  were.  Defendant,  in  his  own  statement 
as  quoted  above,  admits  knowledge  of  this,  and  that  the  same  was  com- 
municated to  him  prior  to  the  time  Johnson  was  taken  to  the  express 
car.  Then  certainly  he  would  be  responsible  for  the  reasonable,  nat- 
ural, and  probable  result  of  his  act,  to  wit,  placing  deceased  in  a  place 
of  danger,  where  he  would  probably  lose  his  life.  Therefore  we  think 
the  court's  charge  as  above  copied  was  a  clear  and  proper  presentation 
of  the  law  applicable  to  the  facts  upon  the  trial  of  this  case.  Taylor  v. 
State,  ante,  p.  564. 

We  have  carefully  reviewed  all  of  appellant's  various  assignments, 
and  do  not  think  any  of  them  are  well  taken,  but  will  say,  in  passing, 
we  do  not  think  the  court  erred  in  refusing  to  charge  on  circumstantial 
evidence,  as  strenuously  contended  by  appellant.  There  appearing  no 
error  in  the  record,  the  judgment  is  affirmed. 

Affirmed. 


k 


356  BEGIN  A  V.    TOLSON.  [CHAP.  VI. 


CHAPTER   TI. 
RESPONSIBILITY :    CULPABILITY. 


SECTION   I. 

What  Crimes  Require  a   Guilty  Mind. 

EEGINA   V.   TOLSON. 
Crown  Case  Reserved.     1889. 

[Reported  23  Queen's  Bench  Division,  168.] 

Wills,  J.  In  this  case  the  prisoner  was  convicted  of  bigamy.  She 
married  a  second  time  within  seven  years  of  the  time  when  she  last 
knew  of  her  husband  being  alive,  but  upon  information  of  his  death, 
which  the  jury  found  that  she  upon  reasonable  grounds  believed  to  be 
true.     A  few  moutlis  after  the  second  marriage  he  reappeared. 

The  statute  upon  which  the  indictment  was  framed  is  the  2-4  &  25 
Vict.  c.  100,  s.  57,  which  is  in  these  words:  "  Whoever,  being  mar- 
ried, shall  marry  any  other  person  during  the  life  of  the  former  husband 
or  wife  shall  be  guilty  of  felony,  punishable  with  penal  servitude  for 
not  more  than  seven  years,  or  imprisonment  with  or  without  hard 
labor  for  not  more  than  two  years,"  with  a  proviso  that  "  nothing  in 
this  Act  shall  extend  to  any  person  marrying  a  second  time  whose 
husband  or  wife  shall  have  been  continually  absent  from  such  person 
for  the  space  of  seven  years  last  past,  and  shall  not  have  been  known 
by  such  person  to  be  living  within  that  time." 

There  is  no  doubt  that  under  the  circumstances  the  prisoner  falls 
within  the  very  words  of  ttie  statute.  She,  being  married,  married 
another  person  during  the  life  of  her  former  husband,  and,  when  she 
did  so,  he  had  not  been  continually  absent  from  her  for  the  space  of 
seven  years  last  past. 

It  is,  however,  undoubtedly  a  principle  of  English  criminal  law,  that 
ordinarily  speaking  a  crime  is  not  committed  if  the  mind  of  the  person 
doing  an  act  in  question  be  innocent.  "  It  is  a  principle  of  natural 
justice  and  of  our  law,"  says  Lord  Kenj^on,  C.  J.,  "  that  actus  non 
facit  reuiii,  nisi  mens  sit  rea.     The  intent  and  act  must  both  concur  to 


SECT.  I.]  ■   REGINA  V.    TOLSON.  357 

constitute  the  crime."  Fowler  v.  Padget,  7  T.  R.  509,  514.  The 
guilty  intent  is  not  necessarily  that  of  intending  the  very  act  or  thing 
done  and  prohibited  by  common  or  statute  law,  but  it  must  at  least  be 
the  intention  to  do  something  wrong.  That  intention  may  belong  to 
one  or  other  of  two  classes.  It  may  be  to  do  a  thing  wrong  in  itself 
and  apart  from  positive  law,  or  it  may  be  to  do  a  thing  merely  prohi- 
bited by  statute  or  by  common  law,  or  both  elements  of  intention  may 
co-exist  with  respect  to  the  same  deed.  There  are  many  things  prohi- 
bited by  no  statute  —  fornication  or  seduction  for  instance  —  which 
nevertheless  no  one  would  hesitate  to  call  wrong ;  and  the  intention  to 
do  an  act  wrong  in  this  sense  at  the  least-must  as  a  general  rule  exist 
before  the  act  done  can  be  considered  a  crime.  Knowingly  and  inten- 
tionally to  brealc  a  statute  must,  I  think,  from  the  judicial  point  of 
view,  always  be  morally  wrong  in  the  absence  of  special  circumstances 
applicable  to  the  particular  instance  and  excusing  the  breach  of  the 
law,  as,  for  instance,  if  a  municipal  regulation  be  brolceu  to  save  life 
or  to  put  out  a  fire.  But  to  make  it  morally  right  some  such  special 
matter  of  excuse  must  exist,  inasmuch  as  the  administration  of  jus- 
tice and,  indeed,  the  foundations  of  civil  society  rest  upon  the  prin- 
ciple that  obedience  to  the  law,  whether  it  be  a  law  approved  of  or 
disapproved  of  by  the  individual,  is  the  first  duty  of  a  citizen. 

Although  prhna  facie  and  as  a  general  rule  there  must  be  a  mind  at 
fault  before  there  can  be  a  crime,  it  is  not  an  inflexible  rule,  and  a 
statute  may  relate  to  such  a  subject-matter  and  may  be  so  framed  as 
to  make  an  act  criminal  whether  there  has  been  any  intention  to  break 
the  law  or  otherwise  to  do  wrong  or  not.  There  is  a  large  body  of 
municipal  law  in  the  present  day,  which  is  so  conceived.  By-laws  are 
constantly  made  regulating  the  width  of  thoroughfares,  the  height  of 
buildings,  the  thickness  of  walls,  and  a  variety  of  other  matters  neces- 
sary for  the  general  welfare,  health,  or  convenience,  and  such  by-laws 
are  enforced  by  the  sanction  of  penalties,  and  the  breach  of  tliem  con- 
stitutes an  offence  and  is  a  criminal  matter.  In  such  cases  it  would, 
generally  speaking,  be  no  answer  to  proceedings  for  infringement  of 
the  by-law  that  the  person  committing  it  had  bona  fide  made  an  acci- 
dental miscalculation  or  an  erroneous  measurement.  The  Acts  are 
properly  construed  as  imposing  the  penalty  when  the  act  is  done,  no 
matter  how  innocently,  and  in  such  a  case  the  substance  of  the  en- 
actment is  that  a  man  shall  take  care  that  the  statutory  direction  is 
obeyed,  and  that  if  he  fails  to  do  so  he  does  it  at  his  peril. 

Whether  an  enactment  is  to  be  construed  in  this  sense  or  with  the 
qualification  ordinarily  imported  into  the  construction  of  criminal  stat- 
utes, that  there  must  be  a  guilty  mind,  must,  I  think,  depend  upon 
the  subject-matter  of  the  enactment,  and  the  various  circumstances 
that  may  make  the  one  construction  or  the  other  reasonable  or  unrea- 
sonable. There  is  no  difference,  for  instance,  in  the  kind  of  language 
used  by  Acts  of  Parliament  which  made  the  unauthorized  possession 
of  Government  stores  a  crime,  and  the  language  used  in  by-laws  which 


358  REGINA   V.    TOLSON.  [CHAP.  Yl. 

say  that  if  a  man  builds  a  house  or  a  wall  so  as  to  encroach  upon  a 
space  protected  by  the  by-law  from  building  he  shall  be  liable  to  a 
penalty.  Yet  in  Reg.  v.  Sleep,  L.  &  C  44  ;  30  L.  J.  M.  C.  170,  it 
was  held  that  a  person  in  possession  of  Government  stores  with  the 
broad  arrow  could  not  be  convicted  when  there  was  not  sufficient  evi- 
dence to  show  that  he  knew  they  were  so  marked,  while  the  mere 
infriugement  of  a  building  by-law  would  entail  liability  to  the  penalty. 
There  is  no  difference  between  the  language  by  which  it  is  said  that  a 
man  shall  sweep  the  snow  from  the  pavement  in  front  of  his  house 
before  a  given  hour  in  the  morning,  and  if  he  fail  to  do  so,  shall  pay 
a  penalty,  and  that  by  which  it  is  said  that  a  man  sending  vitiiol  by 
railway  shall  mark  the  nature  of  the  goods  on  the  package  on  pain  of 
forfeiting  a  sum  of  mouey ;  and  yet  1  suppose  that  in  the  first  case 
the  penalty  would  attach  if  the  thing  were  not  done,  while  in  the  other 
case  it  has  been  held  in  Heme  v.  Garton,  2  E.  &  E.  66,  that  where  the 
sender  had  made  reasonable  inquiry  and  was  tricked  into  the  belief 
that  the  goods  were  of  an  innocent  character,  he  could  not  be  con- 
victed, although  he  had  in  fact  sent  the  vitiiol  not  properly  marked. 
There  is  no  difference  between  the  language  by  which  it  is  enacted 
that  "  whosoever  shall  unlawfully  and  wilfully  kill  any  pigeon  under 
such  circumstances  as  shall  not  amount  to  a  larceny  at  common  law  " 
shall  be  liable  to  a  penalty,  and  the  language  by  which  it  is  enacted 
that  "  if  any  person  shall  commit  any  trespass  by  entering  any  land 
in  the  daytime  in  pursuit  of  game  "  he  shall  be  liable  to  a  i)enalty  ;  and 
yet  in  the  first  case  it  has  been  held  that  his  state  of  mind  is  material: 
Taylor  v.  Newman,  4  B.  «fe  S.  89  ;  in  the  second  that  it  is  immaterial : 
Watkins  v.  Major,  L.  R.  10  C.  P.  662.  So,  again,  there  is  no  differ- 
ence in  language  between  the  enactments  I  have  referred  to  in  which 
the  absence  of  a  guilty  mind  was  held  to  be  a  defence,  and  that  of  the 
statute  which  says  that  "  any  person  who  shall  receive  two  or  more 
lunatics  "  into  any  unlicensed  house  shall  be  guilty  of  a  misdemeanor, 
under  which  tlie  contrary  has  been  held :  Reg.  v.  Bishop,  5  Q.  B.  D. 
259.  A  statute  provided  that  any  clerk  to  justices  who  should,  under 
color  and  pretence  of  anything  done  by  the  justice  or  the  clerk,  receive 
a  fee  greater  than  that  provided  for  by  a  certain  table,  should  for 
every  such  offence  forfeit  £20.  It  was  held  that  where  a  clerk  to 
justices  bona  fide  and  reasonably  but  erroneously  believed  that  there 
were  two  sureties  bound  in  a  recognizance  besides  the  principal,  and 
accordingly  took  a  fee  as  for  three  recognizances  when  he  was  only 
entitled  to  charge  for  two,  no  action  would  lie  for  the  penalty.  "  Actus" 
says  Lord  Campbell,  "  non  facit  re^im,  nisi  mens  sit  rea.  Here  the 
defendant  very  reasonably  believing  that  there  were  two  sureties  bound, 
beside  the  principal,  has  not,  by  making  a  charge  in  pursuance  of  his 
belief,  incurred  the  forfeiture.  The  language  of  the  statute  is  '  for 
every  such  offence.'  If,  therefore,  the  table  allowed  him  to  charge  for 
three  recognizances  where  there  are  a  principal  and  two  sureties,  he 
has  not  committed  an  offence  under  the  act."  Bowman  v.  Blyth,  7  E. 
&  B.  26,  43. 


SECT.  I.]  REGINA  V.   TOLSON.  359 

If  identical  language  may  thus  be  legitimately  construed  in  two 
opposite  senses,  and  is  sometimes  held  to  miply  that  there  is  and  some- 
times that  there  is  not  an  offence  when  the  guilty  mind  is  absent,  it  is 
obvious  that  assistance  must  be  sought  aliunde,  and  that  all  circum- 
stances must  be  taken  into  consideration  which  tend  to  show  that  the 
one  construction  or  the  other  is  reasonable,  and  among  such  circum- 
stances it  is  impossible  to  discard  the  consequences.  This  is  a  con- 
sideration entitled  to  little  weight  if  the  words  be  incapable  of  more 
than  one  construction  ;  but  1  have,  I  think,  abundantly  shown  that 
there  is  nothing  in  the  mere  form  of  words  used  in  the  enactment  now 
under  consideration  to  prevent  the  application  of  what  is  certainly  the 
normal  rule  of  construction  in  the  case  of  a  statute  constituting  an 
offence  entailing  severe  and  degrading  punishment.  If  the  words  are 
not  conclusive  in  themselves,  the  reasonableness  or  otherwise  of  the 
construction  contended  for  has  always  been  recognized  as  a  matter 
fairly  to  be  taken  into  account.  In  a  case  in  which  a  woman  was 
indicted  under  9  &  10  Wm.  Ill,,  c.  41,  s.  2,  for  having  in  her  posses- 
sion without  a  certificate  from  the  proper  authority  Government  stores 
marked  in  the  manner  described  in  the  Act,  it  was  argued  that  by  the 
Act  the  possession  of  the  certificate  was  made  the  sole  excuse,  and 
that  as  she  had  no  certificate  she  must  be  convicted.  Foster,  J.,  said, 
however,  that  though  the  words  of  the  statute  seemed  to  exclude  any 
other  excuse,  yet  the  circumstances  must  be  taken  into  consideration, 
otherwise  a  law  calculated  for  wise  purposes  might  be  made  a  hand- 
maid to  oppression  ;  and  directed  the  jury  that  if  they  thought  the 
defendant  came  into  possession  of  the  stores  without  any  fraud  or 
misbehavior  on  her  part  they  ought  to  acquit  her.  Foster's  Crown 
Law,  3d  ed.  App.  pp.  439,  440.  This  ruling  was  adopted  by  Lord 
Kenyon  in  Rex  v.  Banks,  1  Esp.  144,  who  considered  it  beyond  ques- 
tion that  the  defendant  might  excuse  himself  by  showing  that  he  came 
innocently  into  such  possession,  and  treated  the  unqualified  words  of 
the  statute  as  merely  shifting  the  burden  of  proof  and  making  it  neces- 
sary for  the  defendant  to  show  matter  of  excuse,  and  to  negative  the 
guilty  mind,  instead  of  its  being  necessary  for  the  crown  to  show  the 
existence  of  the  guilty  mind.  Prima  facie  the  statute  was  satisfied 
when  the  case  was  brought  within  its  terms,  and  it  then  lay  upon  the 
defendant  to  prove  that  the  violation  of  the  law  which  had  taken 
place  had  been  committed  accidentally  or  innocently  so  far  as  he  was 
concerned.  Suppose  a  man  had  taken  up  by  mistake  one  of  two 
baskets  exactly  alike  and  of  similar  weight,  one  of  which  contained 
innocent  articles  belonging  to  himself  and  the  other  marked  "  Govern- 
ment Stores,"  and  was  caught  with  the  wrong  basket  in  his  hand.  He 
would  by  his  own  act  have  brought  himself  within  the  very  words  of 
the  statute.  Who  would  think  of  convicting  him?  And  yet  what 
defence  could  there  be  except  that  his  mind  was  innocent,  and  that  he 
had  not  intended  to  do  the  thing  forbidden  by  the  statute?  In  Fowler 
V.  Padget,  7  T.  R,  509,  the  question  was  whether  it  was  an  act  of 

19 


360 


KEGINA   V.   TOLSON.  [CHAP.  YI. 


bankruptcy  for  a  man  to  depart  from  his  dwelling-house,  whereby  his 
creditors  were  defeated  and  delayed,  although  he  had  no  intention  of 
defeatino'  and  delaying  them.  The  statute  which  constituted  the  act 
of  bankruptcy  was  1  Jac.  I.  c.  15,  which  makes  it  an  act  of  bankruptcy 
(among  other  things)  for  a  man  to  depart  his  dwellmg-house  "to  the 
intent  or  whereby  his  creditors  may  be  defeated  and  delayed."  The 
court  of  King's  Bench,  consisting  of  Lord  Kenyon,  C.  J.,  and  Ashurst 
and  Grose,  J  J.,  held  that  there  was  no  act  of  bankruptcy.  "  Bank- 
ruptcy," said  Lord  Kenyon,  "  is  considered  as  a  crime,  and  the  bank- 
rupt in  the  old  laws  is  called  an  offender  ;  but,"  he  adds  in  the  passage 
already  cited,  "  it  is  a  principle  of  natural  justice  and  of  our  law  that 
actus  non  facit  reum  nisi  mens  sit  rea;"  and  the  court  went  so  far 
as  to  read  "  and"  in  the  statute  in  place  of  "  or,"  which  is  the  word 
used  in  the  Act,  in  order  to  avoid  the  consequences  which  appeared  to 
them  unjust  and  unreasonable.  In  Rex  v.  Banks,  1  Esp.  144,  above 
cited,  Lord  Kenyon  referred  to  Foster,  J.'s,  ruling  in  this  case  as  that 
of  "  one  of  the  best  Crown  lawyers  that  ever  sat  in  Westminster  Hall." 
These  decisions  of  Foster,  J.,  and  Lord  Kenyon  have  been  repeatedly 
acted  upon.  See  Reg.  v.  Willmett,  3  Cox  C.  C.  281  ;  Reg.  v.  Cohen, 
8  Cox  C.  C.  41  ;  Reg.  v.  Sleep  (in  the  Court  for  C.  C.  R.),  L.  &  C. 
44  ;  30  L.  J.  N.  C.  170  ;  Reg  v.  O'Brien,  15  L.  T.  (N.  S.)  419. 

Now  in  the  present  instance  one  consequence  of  holding  that  the 
offence  is  complete  if  the  husband  or  wife  is  de  facto  alive  at  the  time 
of  the  second  marriage,  although  the  defendant  had  at  the  time  of  the 
second  marriage  every  reason  to  believe  the  contrary,  would  be  that 
though  the  evidence  of  death  should  be  sufficient  to  induce  the  Court 
of  Probate  to  grant  probate  of  the  will  or  administration  of  the  goods 
of  the  man  supposed  to  be  dead,  or  to  prevail  with  the  jury  upon  au 
action  by  the  heir  to  recover  possession  of  his  real  property,  the  wife 
of  the  person  supposed  to  be  dead  who  had  married  six  years  and 
eleven  months  after  the  last  time  she  had  known  him  to  be  alive  would 
be  guilty  of  felony  in  case  he  should  turn  up  twenty  years  afterwards. 
It  would  be  scarcely  less  unreasonable  to  enact  that  those  who  had  in 
the  meantime  distributed  his  personal  estate  should  be  guilty  of  lar- 
ceny. It  seems  to  me  to  be  a  case  to  which  it  would  not  be  improper 
to  apply  the  language  of  Lord  Kenyon  when  dealing  with  a  statute 
which  literally  interpreted  led  to  what  he  considered  an  equally  pre- 
posterous result :  "  I  would  adopt  any  construction  of  the  statute  that 
the  words  will  bear  in  order  to  avoid  such  monstrous  consequences." 
Fowler  v.  Padget,  7  T.  R.  509,  514. 

Again,  the  nature  and  extent  of  the  penalty  attached  to  the  offence 
may  reasonably  be  considered.  There  is  nothing  that  need  shock  any 
mind  in  the  payment  of  a  small  pecuniary  penalty  by  a  person  who 
has  unwittingly  done  something  detrimental  to  the  public  interest.  To 
subject  him,  when  what  he  has  done  has  been  nothing  but  what  any 
well-disposed  man  would  have  been  very  likely  to  do  under  the  cir- 
cumstances, to  the  forfeiture  of    all  his  goods  and  chattels,   which 


SECT.  1.]  -  KEG  IN  A    V.    TOLSON.  361 

would  have  been  one  consequence  of  a  conviction  at  the  date  of  the 
Act  of  24  &  25  Vict.,  to  the  loss  of  civil  rights,  to  imprisonment  with 
hard  labor,  or  even  to  penal  servitude,  is  a  very  different  matter  ;  and 
such  a  fate  seems  properly  reserved  for  those  who  have  transgressed 
morally,  as  well  as  unintentionally  done  something  prohibited  by  law. 
I  am  well  aware  that  the  mischiefs  which  may  result  from  bigamous 
marriages,  however  innocently  contracted,  are  great ;  but  I  cannot 
think  that  the  appropriate  way  of  preventing  them  is  to  expose  to  the 
danger  of  a  cruel  injustice  persons  whose  only  error  may  be  that  of 
acting  upon  the  same  evidence  as  has  appeared  perfectly  satisfactory 
to  a  Court  of  Probate,  a  tribunal  emphatically  difficult  to  satisfy  in 
such  matters,  and  certain  only  to  act  upon  what  appears  to  be  the  most 
cogent  evidence  of  death.  It  is,  as  it  seems  to  me,  undesirable  in  the 
highest  degree  without  necessity  to  multiply  instances  in  which  people 
shall  be  liable  to  conviction  upon  very  grave  charges,  when  the  cir- 
cumstances are  such  that  no  judge  in  the  kingdom  would  think  of 
pronouncing  more  than  a  nominal  sentence. 

It  is  said,  however,  in  respect  of  the  offence  now  uuder  discussion, 
that  the  proviso  in  24  &  25  Vict.  c.  100,  s.  57,  that  "  nothing  in  the  sec- 
tion shall  extend  to  any  person  marrying  a  second  time  whose  husband 
or  wife  shall  have  been  continually  absent  from  such  person  for  seven 
years  last  past,  and  shall  not  have  been  known  by  such  person  to  be 
living  within  that  time,"  points  out  the  sole  excuse  of  which  the  Act 
allows.  I  cannot  see  what  necessity  there  is  for  drawing  any  such 
inference.  It  seems  to  me  that  it  merely  specifies  one  particular  case, 
and  indicates  what  in  that  case  shall  be  sufficient  to  exempt  the  party, 
without  any  further  inquiry,  from  criminal  liability  ;  and  I  think  it  is  an 
argument  of  considerable  weight  in  this  connection,  that  under  9  &  10 
Wm.  III.  c.  41,  s.  2,  where  a  similar  contention  was  founded  upon  the 
specification  of  one  particular  circumstance  under  which  the  possession 
of  Government  stores  should  be  justified,  successive  judges  and  courts 
have  refused  to  accede  to  the  reasoning,  and  have  treated  it,  to  use 
the  words  of  Lord  Kenyon,  as  a  matter  that  "  could  not  bear  a  ques- 
tion," that  the  defendant  might  show  in  other  ways  that  his  posses- 
sion was  without  fraud  or  misbehavior  on  his  part.  Rex  v.  Banks, 
1  Esp.  144,  147. 

Upon  the  point  in  question  there  are  conflicting  decisions.^  There 
is  nothing,  therefore,  in  the  state  of  the  authorities  directly  bearing 
upon  the  question  to  prevent  one  from  deciding  it  upon  the  grounds  of 
principle.  It  is  suggested,  however,  that  the  important  decision  of  the 
court  of  fifteen  judges  in  Reg.  v.  Prince,  L.  R.  2  C.  C.  154,  is  an 
authority  in  favor  of  a  conviction  in  this  case.  I  do  not  think  so.  In 
Reg.  V.  Prince  the  prisoner  was  indicted  under  24  &  25  Vict.  c.  100, 

1  The  learned  judge  here  examined  the  following  conflicting  decisions:  Reg.  v 
Turner,  9  Cox  C.  C.  145;  Reg.  v.  Horton,  11  Co.:  C.  C.  670;  Reg.  v.  Gibbons,  12 
Cox  C.  C.  237;  Reg.  v.  Bennett,  14  Cox  C.  C.  45;  Reg.  v.  Moore,  13  Cox  C.  C. 
544.  —  Ed. 


362 


REGINA   V.    TOLSON.  [CHAP.  VI. 


s.  55,  for  "  unlawfully  taking  an  unmarried  girl,  then  being  under  the 
ao-e  of  sixteen  years,  out  of  the  possession  and  against  the  will  of  her 
father."  The  jury  found  that  the  prisoner  bona  fide  believed  upon 
reasonable  grounds  that  she  was  eighteen.  The  court  (dissentiente 
Brett,  J.,)  uplield  the  conviction.  Two  judgments  were  delivered  by 
a  majority  of  the  court,  in  each  of  which  several  judges  concurred, 
whilst  three  of  them,  Denman,  J.,  Pollock,  B.,  and  Quain,  J.,  concurred 
in  both.  The  first  of  the  two,  being  the  judgment  of  nine  judges, 
upheld  the  conviction  upon  the  ground  that,  looking  to  the  subject- 
matter  of  the  enactment,  to  the  group  of  sections  amongst  which  it  is 
found,  and  to  the  history  of  legislation  on  the  subject,  the  intention 
of  the  legislature  was  that  if  a  man  took  an  unmarried  girl  under  sis- 
teen  out  of  the  possession  of  her  father  against  his  will,  he  must  take 
his  chance  of  whether  any  belief  he  might  have  about  her  age  was 
rio-ht  or  wrong,  and  if  he  made  a  mistake  upon  this  point  so  much 
the  worse  for  him,  —  he  must  bear  the  consequences.  The  second 
of  the  two  judgments,  being  that  of  seven  judges,  gives  a  number  of 
other  reasons  for  arriving  at  the  same  conclusion,  some  of  them 
founded  upon  the  policy  of  the  legislature  as  illustrated  by  other  asso- 
ciated sections  of  the  same  Act.  This  judgment  contains  an  emphatic 
recognition  of  the  doctrine  of  the  "  guilty  mind,"  as  an  element,  in  gen- 
eral, of  a  criminal  act,  and  supports  the  conviction  upon  the  ground 
that  the  defendant,  who  believed  the  girl  to  be  eighteen  and  not  six- 
teen, even  then,  in  taking  her  out  of  the  possession  of  the  father  against 
his  will  was  doing  an  act  wrong  in  itself.  "This  opinion,"  says  the 
judgment,  "  gives  full  scope  to  the  doctrine  of  the  mens  rea."  ^ 

The  case  of  Reg.  v.  Prince,  therefore,  is  a  direct  and  cogent  author- 
ity for  saying  that  the  intention  of  the  legislature  cannot  be  decided 
upon  simple  prohibitory  words,  without  reference  to  other  considera- 
tions. The  considerations  relied  upon  in  that  case  are  wanting  in  the 
present  case,  whilst,  as  it  seems  to  me,  those  which  point  to  the  appli- 
cation of  the  principle  underlying  a  vast  area  of  criminal  enactment, 
that  there  can  be  no  crime  without  a  tainted  mind,  preponderate  greatly 
over  any  that  point  to  its  exclusion. 

1  "To  my  mind,  it  is  contrary  to  the  whole  established  law  of  England  (unless  the 
legislation  on  the  subject  has  clearly  enacted  it),  to  say  that  a  person  can  be  guilty  of  a 
crime  in  England  without  a  wrongful  intent,  —  without  an  attempt  to  do  that  which 
the  law  has  forbidden.  I  am  aware  that  in  a  particular  case,  and  under  a  particular 
criminal  statute,  fifteen  judges  to  one  held  that  a  person  whom  the  jury  found  to  have 
no  intent  to  do  what  was  forbidden,  and  whom  the  jury  found  to  have  been  deceived, 
and  to  have  understood  the  facts  to  he  such  that  he  might  with  impunity  have  done  a 
certain  thing,  was  by  the  terms  of  that  Act  of  Parliament  guilty  of  a  crime,  and  could 
be  imprisoned.  I  say  still,  as  I  said  then,  that  I  cannot  subscribe  to  the  propriety  of 
that  decision.  I  bow  to  it,  but  I  cannot  subscribe  to  it;  but  the  majority  of  the  judges 
forming  the  court  so  held  because  they  said  that  the  enactment  was  absolutely  clear." 
Brett,  M.  R.,  in  Attorney  General  v."  Bradlaugh,  14  Q.  B.  D.  667,  689. 

"  Actus  noil  facit  reiim,  nisi  mens  sit  rea  is  the  foundation  of  all  criminal  justice." 
CocKBURN,  C.  J.,  in  Reg.  v.  Sleep,  8  Cox  C.  C.  472,  477.  —  Ed. 


SECT.  I.J  REGINA   V.    TOLSON.  363 

In  my  opinion,  therefore,  tliis  conviction  ought  to  be  quashed.* 
Stephen,  J.  I  am  of  opinion  that  the  conviction  shoukl  be  quashed. 
My  view  of  the  subject  is  based  upon  a  particular  application  of  the 
doctrine  usually,  though  I  think  not  happily,  described  by  the  phrase 
"no?i  est  reus,  nisi  7nens  sit  rea."  Though  this  phrase  is  in  common 
use,  I  think  it  most  unfortunate,  and  not  only  likely  to  mislead,  but 
actually  misleading,  on  the  following  grounds :  It  naturally  suggests 
that,  apart  from  all  particular  definitions  of  crimes,  such  a  thing  exists 
as  a  7nens  rea,  or  "  guilty  mind,"  which  is  always  expressly  or  by 
implication  involved  in  every  definition.  This  is  obviously  not  the  case, 
for  the  mental  elements  of  different  crimes  differ  widely.  3Iens  rea 
means,  in  the  case  of  murder,  malice  aforethought  -,  in  the  case  of  theft^ 
an  intention  to  steal ;  in  the  case  of  rape,  an  intention  to  have  forcible 
connection  with  a  woman  without  her  consent;  and  in  the  case  of 
receiving  stolen  goods,  knowledge  that  the  goods  were  stolen.  In  some 
cases  it  denotes  mere  inattention.  For  instance,  in  the  case  of  man- 
slaughter by  negligence,  it  may  mean  forgetting  to  notice  a  signal.  It 
appears  confusing  to  call  so  many  dissimilar  states  of  mind  by  one 
name.  It  seems  contradictory  indeed  to  describe  a  mere  absence  of 
mind  as  a  ''mens  rea,"  or  "guilty  mind."  The  expression,  again,  is 
likely  to  and  often  does  mislead.  To  an  unlegal  mind  it  suggests  that 
by  the  law  of  P^ngland  no  act  is  a  crime  which  is  done  from  laudable 
motives  ;  in  other  words,  that  immorality  is  essential  to  crime.  It  will, 
I  think,  be  found  that  much  of  the  discussion  of  the  law  of  libel  in 
Shipley's  Case,  4  Doug.  73  ;  21  St.  Tr.  847,  proceeds  upon  a  more  or 
less  distinct  belief  to  this  effect.  It  is  a  topic  frequently  insisted  upon 
in  reference  to  political  offences,  and  it  was  urged  in  a  recent  notorious 
case  of  abduction,  in  which  it  was  contended  that  motives  said  to  be 
laudable  were  an  excuse  for  the  abduction  of  a  child  from  its  parents. 
Like  most  legal  Latin  maxims,  the  maxim  on  7nens  rea  appears  to  me 
to  be  too  short  and  antithetical  to  be  of  much  practical  value.  It  is, 
indeed,  more  like  the  title  of  a  treatise  than  a  practical  rule.  I  have 
tried  to  ascertain  its  origin,  but  have  not  succeeded  in  doing  so.  It  is 
not  one  of  the  ^'■reguloi  juris''  in  the  digests.  The  earliest  case  of  its 
use  which  I  have  found  is  in  the  "  Leges  Henrici  Primi,"  v.  28,  in 
which  it  is  said:  ^'Si  quis  per  coactionem  abjurare  cogatur  quod  per 
multos  annos  quiete  tenuerit  non  in  jurarite  set  cogente  perjurium  erit. 
Reum  non  facit  nisi  mens  rea."  In  Broom's  Maxims  the  earliest 
authority  cited  for  its  use  is  3d  Institute,  ch.  i.  fol.  10.  In  this  place 
it  is  contained  in  a  marginal  note,  which  says  that  when  it  was  found 
that  some  of  Sir  John  Oldcastle's  adherents  took  part  in  an  insurrection 
'■'■pro  timore  mortis  et  quod  recesserunt  quam  cito  potuerunt,"  the  judges 
held  that  this  was  to  be  adjudged  no  treason,  because  it  was  for  fear 
of  death.    Coke  adds:  ^'■Et  actus  non  facit  reum  nisi  mens  sit  rea." 

1  Concurring  opinions  of  Cave  and  Hawkins,  JJ.,  and  Lord  Coleridge,  C.  J.,  are 
omitted.  Charles,  Day,  A.  L.  Smith,  and  Grantham,  JJ.,  concurred.  Part  of  the 
opinion  of  Stephen,  J.,  is  omitted.  —  Ed. 


364  EEGINA   V.   TOLSON.  [cHAP.  VI. 

This  is  only  Coke's  own  remark,  and  not  part  of  tlie  judgment.  Now 
Coke's  scraps  of  Latin  in  tiiis  and  tlie  following  chapters  are  some- 
times contradictory.  Notwithstanding  the  passage  just  quoted,  he 
says  in  the  margin  of  his  remarks  on  opinions  delivered  in  Parliament 
by  Thyrning  and  others  in  the  21  R.  2  :  '•'•Melius  est  omnia  mala  2Xiti 
quam  malo  consentire"  (22-23),  which  would  show  that  Sir  J.  Oldcas- 
tle's  associates  had  a  mens  rea,  or  guilty  mind,  though  they  were 
threatened  with  death,  and  thus  contradicts  the  passage  first  quoted. 

It  is  singular  that  in  each  of  these  instances  the  maxim  should  be 
used  in  connection  with  the  law  relating  to  coercion. 

The  principle  involved  appears  to  me,  when  fully  considered,  to 
amount  to  no  more  than  this  :  The  full  definition  of  every  crime  con- 
tains, expressl}'  or  by  implication,  a  proposition  as  to  a  state  of  mind. 
Therefore,  if  the  mental  element  of  any  conduct  alleged  to  be  a  crime 
is  pi'oved  to  have  been  absent  in  any  given  case,  the  crime  so  defined 
is  not  committed  ;  or,  again,  if  a  crime  is  fullj'  defined,  nothing  amounts 
to  that  crime  which  does  not  satisfy  that  definition.  Crimes  are  in  the 
present  day  much  more  accurately  defined  b}-  statute  or  otherwise  than 
they  formerly  were.  The  mental  element  of  most  crimes  is  marked 
by  one  of  the  words  "  maliciously,"  ''  fraudulently,"  "  negligently,"  or 
"  knowingly,"  but  it  is  the  general  —  I  might,  I  think,  say,  the  inva- 
riable —  practice  of  the  legislature  to  leave  unexpressed  some  of  the 
mental  elements  of  crime.  In  all  cases  whatever,  competent  age, 
sanity,  and  some  degree  of  freedom  from  some  kinds  of  coercion  are 
assumed  to  be  essential  to  criminality,  but  I  do  not  believe  they  are 
ever  introduced  into  any  statute  by  which  any  particular  crime  is 
defined. 

The  meanings  of  the  words  "malice,"  "negligence,"  and  "fraud," 
in  relation  to  particular  crimes  has  been  ascertained  by  numerous  cases. 
Malice  means  one  thing  in  relation  to  murder,  another  in  relation  to 
the  Malicious  Mischief  Act,  and  a  third  in  relation  to  libel,  and  so  of 
fraud  and  negligence. 

With  regard  to  knowledge  of  fact,  the  law,  perhaps,  is  not  quite  so 
clear,  but  it  may,  I  think,  be  maintained  that  in  every  case  knowledge 
of  fact  is  to  some  extent  an  element  of  criminalit}'  as  much  as  compe- 
tent age  and  sanity.  To  take  an  extreme  illustration,  can  any  one 
doubt  that  a  man  who,  though  he  might  be  perfectly  sane,  committed 
what  would  otherwise  be  a  crime  in  a  state  of  somnambulism,  would 
be  entitled  to  be  acquitted?  And  why  is  this?  Simply  because  he 
would  not  know  what  he  was  doing.  A  multitude  of  illustrations  of 
the  same  sort  might  be  given.  I  will  mention  one  or  two  glaring  ones. 
Levet's  Case,  1  Hale,  474,  decides  that  a  man  who,  making  a  thrust 
with  a  sword  at  a  place  where,  upon  reasonable  grounds,  he  supposed 
a  burglar  to  be,  killed  a  person  who  was  not  a  burglar,  was  held  not 
to  be  a  felon,  though  he  might  be  (it  was  not  decided  that  he  was) 
guilty  of  killing  per  infortunium,  or  possibly,  se  defendenrlo,  which 
then  involved  certain  forfeitures.     In  other  words,  he  was  in  the  same 


SECT.  I.]  EEGINA  V.    TOLSOX.  365 

situation  as  far  as  regarded  the  homicide  as  if  he  had  killed  a  burglar. 
In  the  decision  of  the  judges  in  McNaghteu's  Case,  10  CI.  &  F.  200, 
it  is  stated  that  if,  under  an  insane  delusion,  one  man  killed  another, 
and  if  the  delusion  was  such  that  it  would,  if  true,  justify  or  excuse 
the  killing,  the  homicide  would  be  justified  or  excused.  This  could 
hardly  be  if  the  same  were  not  law  as  to  a  sane  mistake.  A  bona  fide 
claim  of  right  excuses  larceny,  and  many  of  the  offences  against  the 
Malicious  Mischief  Act.  Apart,  indeed,  from  the  present  case,  I  think 
it  may  be  laid  down  as  a  general  rule  that  an  alleged  offender  is  deemed 
to  have  acted  under  that  state  of  facts  which  he  in  good  faith  and  on 
reasonable  grounds  believed  to  exist  when  he  did  tlie  act  alleged  to  be 
an  offence. 

I  am  unable  to  suggest  any  real  exception  to  this  rule,  nor  has  one 
ever  been  suggested  to  me.  A  very  learned  person  suggested  to  me 
the  following  case  :  A  constable,  reasonably  believing  a  man  to  have 
committed  murder,  is  justified  in  killing  him  to  prevent  his  escape,  but 
if  he  had  not  been  a  constable  he  would  not  have  been  so  justified,  but 
would  have  been  guilty  of  manslaughter.  This  is  quite  true,  but  the 
mistake  in  the  second  case  would  be  not  only  a  mistake  of  fact,  but  a 
mistake  of  law  on  the  part  of  the  homicide  in  supposing  that  he,  a 
private  person,  was  justified  in  using  as  much  violence  as  a  public  offi- 
cer, whose  duty  is  to  arrest,  if  possible,  a  person  reasonably  suspected 
of  murder.  The  supposed  homicide  would  be  in  the  same  position  as 
if  his  mistake  of  fact  had  been  true ;  that  is,  he  would  be  guilty,  not 
of  murder,  but  of  manslaughter.  I  think,  therefore,  that  the  cases 
reserved  fall  under  the  general  rule  as  to  mistakes  of  fact,  and  that 
the  conviction  ought  to  be  quashed. 

I  will  now  proceed  to  deal  with  the  arguments  which  are  supposed 
to  lead  to  the  opposite  result. 

It  is  said,  first,  that  the  words  of  24  &  25  Vict,  c  100,  s.  57,  are 
absolute,  and  that  the  exceptions  which  that  section  contains  are  the 
only  ones  which  are  intended  to  be  admitted  ;  and  this,  it  is  said,  is 
confirmed  by  the  express  proviso  in  the  section,  —  an  indication  which 
is  thought  to  negative  any  tacit  exception.  It  is  also  supposed  that 
the  case  of  Reg.  v.  Prince,  L.  R.  2  C.  C.  154,  decided  on  s.  55,  con- 
firms this  view.  I  will  begin  by  saying  how  far  I  agree  with  these 
views.  First,  I  agree  that  the  case  turns  exclusively  upon  the  con- 
struction of  s.  57  of  24  &  25  Vict.  c.  100.  Much  was  said  to  us  in 
argument  on  the  old  statute,  1  Jac.  I.  c.  11.  T  cannot  see  what  this 
has  to  do  with  the  matter.  Of  course,  it  would  be  competent  to  the 
legislature  to  define  a  crime  in  such  a  way  as  to  make  the  existence  of 
any  state  of  mind  immaterial.  The  question  is  solely  whether  it  has 
actually  done  so  in  this  case. 

In  the  first  place  I  will  observe  upon  the  absolute  character  of  the 
section.  It  appears  to  me  to  resemble  most  of  the  enactments  con- 
tained in  the  Consolidation  Acts  of  1861,  in  passing  over  the  general 
mental  elements  of  crime  which  are  presupposed  in  every  case.    Age, 


366  KEGINA    V.   TOLSON.  [CHAP.  VI. 

sanity,  and  more  or  less  freedom  from  compulsion,  are  alwaj-s  pre- 
sumed, and  I  think  it  would  be  impossible  to  quote  an}'  statute  which 
in  any  case  specifies  these  elements  of  criminality  in  the  definition  of 
any  crime.  It  will  be  found  that  either  by  using  the  words  "  wilfully 
and  maliciously,"  or  by  specifying  some  special  intent  as  an  element 
of  particular  crimes,  knowledge  of  fact  is  implicitly  made  part  of  the 
statutory  definition  of  most  modern  definitions  of  crimes  ;  but  there  are 
some  cases  in  M'hich  this  cannot  be  said.  Such  are:  s.  55,  on  which 
Reg.  V.  Prince,  L.  R.  2  C.  C.  154,  was  decided ;  s.  56,  which  punishes 
the  stealing  of  "any  child  under  the  age  of  fourteen  years  ;"  s.  49,  as 
to  procuring  the  defilement  of  any  "  woman  or  girl  under  tlie  age  of 
twenty-one,"  —  in  each  of  which  the  same  question  might  arise  as  in 
Reg.  V.  Prince,  L.  R.  2  C.  C.  154  ;  to  these  I  may  add  some  of  the  pro- 
visions of  the  Criminal  Law  Amendment  Act  of  1885.  Reasonable 
belief  that  a  girl  is  sixteen  or  upwards  is  a  defence  to  the  charge  of 
an  offence  under  ss.  5,  6,  and  7,  but  this  is  not  provided  for  as  to  an 
offence  against  s.  4,  which  is  meant  to  protect  girls  under  thirteen. 

It  seems  to  me  that  as  to  the  construction  of  all  these  sections  the 
case  of  Reg.  v.  Prince  is  a  direct  authority.  It  was  the  case  of  a  man 
who  abducted  a  girl  under  sixteen,  believing  on  good  grounds  that 
she  was  above  that  age.  Lord  Esher,  then  Brett,  J.,  was  against 
the  conviction.  His  judgment  establishes  at  much  length,  and,  as  it 
appears  to  me,  unanswerably,  the  principle  above  explained,  which  he 
states  as  follows :  ''That  a  mistake  of  facts  on  reasonable  grounds,  to 
the  extent  that,  if  the  facts  were  as  believed,  the  acts  of  the  prisoner 
would  make  him  guilty  of  no  offence  at  all,  is  an  excuse,  aud  that 
such  an  excuse  is  implied  in  every  criminal  charge  and  every  criminal 
enactment  in  England." 

Lord  Blackburn,  with  whom  nine  other  judges  agreed,  and  Lord 
Bramwell,  with  whom  seven  others  agreed,  do  not  appear  to  me  to 
have  dissented  from  this  principle,  speaking  generally  ;  but  they  held 
that  it  did  not  apply  fully  to  each  part  of  every  section  to  which  I  have 
referred.  Some  of  the  prohibited  acts  they  thought  the  legislature 
intended  to  be  done  at  the  peril  of  the  person  who  did  them,  but  not 
all. 

The  judgment  delivered  by  Lord  Blackburn  proceeds  upon  the  prin- 
ciple that  the  intention  of  the  legislature  in  s.  55  was  "to  punish  the 
abduction  unless  the  girl  was  of  such  an  age  as  to  make  her  consent 
an  excuse." 

Lord  Bramweirs  judgment  proceeds  upon  this  principle  :  "The  legis- 
lature has  enacted  that  if  any  one  does  this  wrong  act  he  does  it  at 
the  risk  of  her  turning  out  to  be  under  sixteen.  This  opinion  gives 
full  scope  to  the  doctrine  of  the  mens  rea.  If  the  taker  believed  he 
had  her  father's  consent,  though  wrongly,  he  would  have  no  me7is  rea; 
so  if  he  did  not  know  she  was  in  any  one's  possession  nor  in  the  care 
or  charge  of  any  one.  In  those  cases  he  would  not  know  he  was  doing 
the  act  forbidden  by  the  statute." 


SECT.  I.]  REGINA   V.   TOLSON.  367 

All  the  judges,  therefore,  in  Reg.  v.  Prince  agreed  on  the  general 
principle,  though  they  all,  except  Lord  Esher,  considered  that  the 
object  of  the  legislature  being  to  prevent  a  scandalous  and  wicked 
invasion  of  parental  rights  (whether  it  was  to  be  regarded  as  illegal 
apart  from  the  statute  or  not)  it  was  to  be  supposed  that  the}^  intended 
that  the  wrong-doer  should  act  at  his  peril. 

As  another  illustration  of  the  same  principle,  I  may  refer  to  Reg.  v. 
Bishop,  5  Q.  B.  D.  259.  Tlie  defendant  in  that  case  was  tried  before 
me  for  receiving  more  than  two  lunatics  into  a  house  not  duly  licensed, 
upon  an  indictment  on  8  and  9  Vict.  e.  100,  s.  44.  It  was  proved  that 
the  defendant  did  receive  more  than  two  persons,  whom  the  jury  found 
to  be  lunatics,  into  her  house,  believing  honestly,  and  on  reasonable 
grounds,  that  they  were  not  lunatics.  I  held  that  this  was  immaterial, 
having  regard  to  the  scope  of  the  Act,  and  the  object  for  which  it  was 
apparently  passed,  and  this  court  upheld  that  ruling.^ 

The  application  of  this  to  the  present  case  appears  to  me  to  be  as 
follows :  The  general  principle  is  clearly  in  favor  of  the  prisoner,  but 
how  does  the  intention  of  the  legislature  appear  to  have  been  against 
her?  It  could  not  be  the  object  of  parliament  to  treat  the  marriage  of 
widows  as  an  act  to  be  if  possible  prevented  as  presumably  immoral. 
The  conduct  of  the  woman  convicted  was  not  in  the  smallest  degree 
immoral ;  it  was  perfectly  natural  and  legitimate.  Assuming  the  facts 
to  be  as  she  supposed,  the  infliction  of  more  than  a  nominal  punishment 
on  her  would  have  been  a  scandal.  Why,  then,  should  the  legislature 
be  held  to  have  wished  to  subject  her  to  punishment  at  all? 

If  such  a  punishment  is  legal,  the  following  among  many  other 
cases  might  occur:  A  number  of  men  in  a  mine  are  killed,  and  their 
bodies  are  disfigured  and  mutilated,  by  an  explosion.  One  of  the  sur- 
vivors secretly  absconds,  and  it  is  supposed  that  one  of  the  disfigured 
bodies  is  his.  His  wife  sees  his  supposed  remains  buried  ;  she  marries 
again.  I  cannot  believe  that  it  can  have  been  the  intention  of  the  legis- 
lature to  make  such  a  woman  a  criminal ;  the  contracting  of  an  invalid 
marriage  is  quite  misfortune  enough.  It  appears  to  me  that  every 
argument  which  showed,  in  the  opinion  of  the  judges  in  Reg.  v.  Prince, 
L.  R.  2  C.  C.  154,  that  the  legislature  meant  seducers  and  abductors  to 
act  at  their  peril,  shows  that  the  legislature  did  not  mean  to  hamper 
what  is  not  onl}-  intended,  but  naturally  and  reasonably  supposed  b}' 
the  parties  to  be  a  valid  and  honorable  marriage,  with  a  liability  to 
seven  years'  penal  servitude. 

It  is  argued  that  the  proviso  that  a  re-marriage  after  seven  years' 
separation  shall  not  be  punishable  operates  as  a  tacit  exclusion  of  all 
other  exceptions  to  the  penal  part  of  the  section.  It  appears  to  me 
that  it  only  supplies  a  rule  of  evidence  which  is  useful  in  many  cases 

1  "  I  am  not  aware  of  any  other  way  in  which  it  is  possible  to  determine  whether 
the  word  '  knowingly '  is  or  is  not  to  he  ini})lied  in  the  definition  of  a  crime  in  which  it 
is  not  expressed."    2  Stephen  Hist.  Cr.  L.  117. 


363 


KEGINA   V.    TOLSON.  [CHAP.  VI. 


in  the  absence  of  explicit  proof  of  death.  But  it  seems  to  me  to  show, 
not  that  belief  in  the  death  of  one  married  person  excuses  the  n^arriage 
of  the  other  only  after  seven  years'  separation,  but  that  mere  separation 
for  that  period  has  the  effect  wliich  reasonable  belief  of  death  caused 
by  other  evidence  would  have  at  any  time.  It  would  to  my  mind  be 
monstrous  to  say  that  seven  years'  separation  should  have  a  greater 
effect  in  excusing  a  bigamous  marriage  than  positive  evidence  of  death, 
sufficient  for  the  purpose  of  recovering  a  policy  of  assurance  or  obtain- 
ing probate  of  a  will,  would  have,  as  in  the  case  I  have  put,  or  in  others 
which  might  be  even  stronger. 

Manisty,  J.     I  am  of  opinion  that  the  conviction  should  be  affirmed. 

The  question  is  whether  if  a  married  woman  marries  another  man 
during  the  life  of  her  former  husband,  and  within  seven  years  of  his 
leaviiig  her,  she  is  guilty  of  felony,  the  jury  having  found  as  a  fact  that 
she  had  reason  to  believe,  and  did  lionestly  believe,  that  her  former 
husband  was  dead. 

The  57th  section  of  the  24  &  25  Vict.  c.  100  is  as  express  and  as 
free  from  ambiguity  as  words  can  make  it.  The  statute  says  :  "  Who- 
soever being  married  shall  marry  any  other  person  during  the  life  of 
the  former  husband  or  wife  .  .  .  shall  be  guilty  of  felony,  and  being 
convicted  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  any  term  not  exceeding  seven  years,  and  not  less 
than  three  years,  or  to  be  imprisoned  for  any  term  not  exceeding  two 
years,  with  or  without  liard  labor."  The  statute  docs  not  even  say  if 
"the  accused  shall  feloniously  or  unlawfully  or  knowingly  commit  the 
act  he  or  she  shall  be  guilty  of  felony,  but  the  enactment  is  couched  m 
the  clearest  language  that  could  be  used  to  prohibit  the  act,  and  to 
make  it  a  felony  if  the  act  is  committed. 

If  any  doubt  could  be  entertained  on  the  point,  it  seems  to  me  the 
proviso  which  follows  the  enactment  ought  to  remove  it.  The  proviso 
is,  that  "Nothing  in  the  57tli  section  of  the  Act  shall  extend  to  any 
person  marrying  a  second  time  whose  husband  or  wife  shall  have  been 
continually  absent  from  such  person  for  the  space  of  seven  years  then 
last  past,  and  shall  not  have  been  known  by  such  person  to  be  living 
within  that  time." 

Such  being  the  plain  language  of  the  Act,  it  is,  in  my  opinion,  the 
imperative  duty  of  the  court  to  give  effect  to  it,  and  to  leave  it  to  the 
legislature  to  alter  the  law  if  it  thinks  it  ought  to  be  altered. 

Probably  if  the  law  was  altered  some  provision  would  be  made  in 
favor  of  children  of  the  second  marriage.  If  the  second  marriage  is  to 
be  deemed  to  be  legal  for  one  purpose,  surely  it  ought  to  be  deemed 
legal  as  to  the  children  who  are  the  offspring  of  it.  If  it  be  within  the 
province  of  the  court  to  consider  the  reasons  which  induced  the  legis- 
lature to  pass  the  Act  as  it  is,  it  seems  to  me  one  principal  reason  is 
on  the  surface,  namel}',  the  consequence  of  a  married  person  marrying 
again  in  the  lifetime  of  his  or  her  former  wife  or  husband,  in  which 
case  it  might,  and  in  manv  cases  would  be,  that  several  children  of  the 


SECT.  I.]  REGINA    V.   TOLSON.'  369 

second  marriage  would  be  born,  and  all  would  be  bastards.  The  pro- 
viso is  evidently  founded  upon  the  assumption  that  after  the  lapse  of 
seven  years,  and  the  former  husband  or  wife  not  being  heard  of,  it  may 
reasonably  be  inferred  that  he  or  she  is  dead,  and  thus  the  mischief  of 
a  second  marriage  in  the  lifetime  of  the  former  husband  or  wife  is  to  a 
great  extent,  if  not  altogether,  avoided. 

It  is  to  be  borne  in  mind  that  bigamy  never  was  a  crime  at  common 
law.  It  has  been  the  subject  of  several  Acts  of  rarliaiuent,  and  is  now- 
governed  by  24  &  25  Vict.  c.  100,  s.  57. 

No  doubt  in  construing  a  statute  the  intentioli  of  the  legislature  is 
what  the  court  has  to  ascertain  ;  but  the  intention  must  be  collected 
from  the  language  used  ;  and  where  that  language  is  plain  and  explicit, 
and  free  from  all  ambiguity,  as  it  is  in  the  present  case,  I  have  always 
understood  that  it  is  the  imperative  duty  of  judges  to  give  effect  to  it. 

The  cases  of  insanity,  etc.,  on  which  reliance  is  placed  stand  on  a 
totally  different  principle,  namely,  that  of  an  absence  of  mens.  Igno- 
rance of  the  law  is  no  excuse  for  the  violation  of  it ;  and  if  a  person 
choose  to  run  the  risk  of  committing  a  felony,  he  or  she  must  take  the 
consequences  if  it  turn  out  that  a  felony  has  been  committed. 

Great  stress  is  laid  by  those  who  hold  that  the  conviction  should  be 
quashed  upon  the  circumstance  that  the  crime  of  bigamy  is  by  the 
statute  declared  to  be  a  felony,  and  punishable  with  penal  servitude 
or  miprisonment,  with  or  without  hard  labor,  for  any  term  not  exceed- 
ing two  years.  If  tlie  crime  had  been  declared  to  be  a  misdemeanor 
punishable  with  fine  or  imprisonment,  sureh'  the  construction  of  the 
statute  would  have  been,  or  ought  to  have  been,  the  same.  It  may 
well  be  that  the  legislature  declared  it  to  be  a  felony  to  deter  married 
persons  from  running  the  risk  of  committing  the  crime  of  bigamy,  and 
in  order  that  a  severe  punishment  might  be  inflicted  in  cases  where 
there  were  no  mitigating  circumstances.  No  doubt  circumstances  may 
and  do  affect  tlie  sentence,  even  to  the  extent  of  the  punishment  being 
nominal,  as  it  was  in  the  present  case  ;  but  that  is  a  very  different  thing 
from  disregarding  and  contravening  the  plain  words  of  the  Act  of 
Parliament. 

The  case  is  put  by  some  of  my  learned  brothers  of  a  married  man 
leaving  his  wife  and  going  into  a  foreign  country  intending  to  settle 
there,  and,  it  may  be,  afterwards  to  send  for  his  wife  and  children,  and 
the  ship  in  which  he  goes  is  lost  in  a  storm,  with,  as  is  supposed,  all  on 
board  ;  and  after  the  lapse  of  say  a  year,  and  no  tidings  received  of  any- 
one having  been  saved,  the  underwriters  pay  the  insurance  on  the  ship, 
and  the  supposed  wadow  gets  probate  of  her  husband's  will,  and  mar- 
ries and  has  children,  and  after  tlie  lapse  of  several  years  the  husband 
appears,  it  may  be  a  few  days  Itefore  seven  years  have  expired  ;  and 
the  question  is  asked,  would  it  not  be  shocking  that  in  such  a  case  the 
wife  could  be  found  guilty  of  bigamy  ? 

My  answer  is,  that  the  Act  of  Parliament  says  in  clear  and  express 
words,  for  very  good  reasons,  as  I  have  already  pointed  out,  that  she 

24 


370 


REGINA   V.    TOLSON.  [CHAP.  VI. 


is  guilty  of  bigamy.  The  only  shocking  fact  would  be  that  some  one, 
for  some  purpose  of  his  own,  had  instituted  the  prosecution.  I  need 
not  say  that  no  public  prosecutor  would  ever  think  of  doing  so,  and  the 
judge  before  whom  the  case  came  on  for  trial  would,  as  my  brother 
Stephen  did  in  the  present  case,  pass  a  nominal  sentence  of  a  day's 
imprisonment  (which  in  effect  is  immediate  discharge),  accompanied, 
if  I  were  the  judge,  with  a  disallowance  of  the  costs  of  the  prosecution. 
It  may  be  said,  but  the  woman  is  put  to  some  trouble  and  expense  in 
appearing  before  the  magistrate  (who  would,  of  course,  take  nominal 
bail)  and  in  appearfng  to  take  her  trial.  Be  it  so,  but  such  a  case 
would  be  very  rare  indeed.  On  the  other  band,  see  what  a  door  would 
be  opened  to  collusion  and  mischief  if,  in  the  vast  number  of  cases 
where  men  in  humble  life  leave  their  wives  and  go  abroad,  it  would  be 
a  good  defence  for  a  woman  to  say  and  give  proof,  which  the  jury 
believed,  that  she  had  been  informed  by  some  person  upon  whom  she 
honestly  thought  she  had  reason  to  rely,  and  did  believe,  that  her  hus- 
band was  dead,  whereas  in  fact  she  had  been  imposed  upon,  and  her 
husband  was  alive. 

What  operates  strongly  on  my  mind  is  this,  that  if  the  legislature 
intended  to  prohibit  a  second  marriage  in  the  lifetime  of  a  former  hus- 
band or  wife,  and  to  make  it  a  crime,  subject  to  the  proviso  as  to  seven 
years,  I  do  not  believe  that  language  more  apt  or  precise  could  be  found 
to  give  effect  to  that  intention  than  the  language  contained  in  tlie  57tli 
section  of  the  Act  in  question.  In  this  view  I  am  fortified  by  several 
sections  of  the  same  Act,  where  the  words  "unlawfully"  and  "mali- 
ciously and  unlawfully"  are  used  (as  in  s.  23),  and  by  a  comparison 
of  them  with  the  section  in  question  (s.  57),  where  no  such  words  are 
to  be  found.  I  especially  rely  upon  the  5oth  section,  by  which  it  is 
enacted  that  "  whosoever  shall  unlawfully"  (a  word  not  used  in  s.  57) 
"  take  or  cause  to  be  taken  any  unmarried  girl  being  under  the  age  of 
sixteen  3'ears  out  of  the  possession  of  her  father  or  mother,  or  any 
other  person  having  the  lawful  care  or  charge  of  her,  shall  be  guilty  of 
a  misdemeanor."  Fifteen  out  of  sixteen  judges  held,  in  the  case  of 
Reg.  V.  Prince,  L.  R.  2  C.  C.  154,  that,  notwithstanding  the  use  of  the 
word  "  unlawfully,"  the  fact  of  the  prisoner  believing  and  having 
reason  to  believe  that  the  girl  was  over  sixteen  afforded  no  defence. 
This  decision  is  approved  of  upon  the  present  occasion  by  five  judges, 
making  in  all  twenty  against  the  nine  who  are  in  favor  of  quashing  the 
conviction.  To  the  twenty  I  may,  I  think,  fairly  add  Tindal,  C  J  , 
in  Reg.  v.  Robins,  1  C.  &  K.  456,  and  Willes,  J.,  in  Reg.  v.  Mycock, 
12  Cox  C.  C.  28. 

I  rely  also  ver}-  much  upon  the  5th  section  of  the  Act  passed  in  1885 
for  the  better  protection  of  women  and  girls  (48  &  49  Vict.  c.  69),  by 
which  it  was  enacted  that  "  any  person  who  unlawfully  and  carnall}' 
knows  an}'  girl  above  thirteen  and  under  sixteen  3'ears  shall  be  guilty 
of  a  misdemeanor  ;  "  but  to  that  is  added  a  proviso  that  "  it  shall  be  a 
sufficient  defence  if  it  be  made  to  appear  to  the  court  or  jury  before 


SECT.  I.]  REGINA   V.   TOLSON.  371 

whom  the  charge  shall  be  brought  that  the  person  charged  had  reason- 
able cause  to  believe,  and  did  believe,  that  the  girl  was  of  or  above 
the  age  of  sixteen."  It  is  to  be  observed  that  notwithstanding  the 
word  "  unlawfully"  appears  in  this  section  it  was  considered  necessary 
to  add  the  proviso,  without  which  it  would  have  been  no  defence  that 
the  accused  had  reasonable  cause  to  believe,  and  did  believe,  that  the 
girl  was  of  or  above  the  age  of  sixteen.  Those  who  hold  that  the  con- 
viction in  the  present  case  should  be  quashed  really  import  into  the 
57th  section  of  the  24  &  25  Vict.  c.  100,  the  proviso  which  is  in  the 
5th  section  of  the  48  &  49  Vict.  c.  69,  contrary,  as  it  seems  to  me,  to 
the  decision  in  Reg.  v.  Prince,  and  to  the  hitherto  undisputed  canons 
for  construing  a  statute. 

It  is  said  that  an  indictment  for  the  offence  of  bigamy-  commences  by 
stating  that  the  accused  feloniously  married,  etc.,  and  conseqaentlj'  the 
principle  of  mens  rea  is  applicable.  To  this  I  answer  that  it  is  to  the 
language  of  the  Act  of  Parliament,  and  not  to  that  of  the  indictment, 
the  court  has  to  look.  I  consider  the  indictment  would  be  perfectly 
good  if  it  stated  that  the  accused,  being  married,  married  again  in  the 
lifetime  of  his  or  her  wife  or  husband,  contrary  to  the  statute,  and  so 
was  guilty  of  felon}'. 

I  am  very  sorry  we  had  not  the  advantage  of  having  the  case  argued 
b}'  counsel  on  behalf  of  the  Crown.  My  reason  for  abstaining  from 
commenting  upon  the  cases  cited  by  Mr.  Henry  in  his  very  able  argu- 
ment for  the  prisoner  is  because  the  difference  of  opinion  among  some 
of  the  judges  in  those  cases  is  as  nothing  compared  with  the  solemn 
decision  of  fifteen  out  of  sixteen  judges  in  the  case  of  Reg.  v.  Prince. 
So  far  as  I  am  aware,  in  none  of  the  cases  cited  b}-  my  learned  brothers 
was  the  interest  of  third  parties,  such  as  the  fact  of  there  being  children 
of  the  second  marriage,  involved.  I  have  listened  with  attention  to 
the  judgments  which  have  been  delivered,  and  I  have  not  heard  a  single 
observation  with  reference  to  this,  to  my  mind,  important  and  essential 
point.  I  am  absolutel}'  unable  to  distinguish  Reg.  v.  Prince  from  the 
present  case,  and,  looking  to  the  names  of  the  eminent  judges  who 
constituted  the  majority-,  and  to  the  reasons  given  in  their  judgments, 
I  am  of  opinion,  upon  authority  as  well  as  principle,  that  the  conviction 
should  be  affirmed. 

The  only  observation  which  I  wish  to  make  is  (speaking  for  myself 
only)  that  I  agree  with  m^-  learned  brother  Stephen  in  thinking  that 
the  phrases  "  metis  rea  "  and  "  non  est  reus  nisi  mens  sit  rea  "  are  not 
of  much  practical  value,  and  are  not  only  "likel}'  to  mislead,"  but  are 
"  absolutely  misleading."  Whether  the}-  have  had  that  effect  in  the 
present  case  on  the  one  side  or  the  other  it  is  not  for  me  to  say. 

I  think  the  conviction  should  be  affirmed.  My  brothers  Denman, 
Pollock,  Field,  and  Huddleston  agree  with  this  judgment. 

Conviction  quashed, 


372  EEGINA  V.   STEPHENS.  [CHAP.  VI. 


REGINA  V.    STEPHENS. 
Queen's  Bench.     1866. 

{Reported  L.  R.  1  Q.  B.  702.] 

Indictment.  First  count  for  obstructing  the  navigation  of  a  public 
river  called  the  Tivy  by  casting  and  throwing,  and  causing  to  be  cast 
and  thrown,  slate  stone  and  rubbish  in  and  upon  the  soil  and  bed  of 
the  river,  and  thereby  raising  and  producing  great  mounds  projecting 
and  extending  along  the  stream  and  waterway  of  the  river. 

Second  count  that  the  defendant  was  the  owner  of  large  quantities 
of  slate  quarried  from  certain  slate  quarries  near  the  river  Tiv}',  and 
that  he  unlawfully  kept,  permitted,  and  suffered  to  be  and  remain  large 
quaniities  of  slate  sunk  in  the  river,  so  that  the  navigation  of  the  river 
was  obstructed. 

Plea,  not  guilty. 

The  indictment  was  tried  before  Blackburn,  J.,  at  the  last  spring 
assizes  for  Pembrokeshire,  W'hen  the  following  facts  were  proved :  — 
The  Tiv}'  is  a  public  navigable  river  which  flows  through  Llechryd 
Bridge,  thence  by  Kilgerran  Castle,  and  from  thence  past  the  town  of 
Cardigan  to  the  sea.  About  twenty  3ears  ago  the  Tivy  was  navigable 
to  within  a  quarter  of  a  mile  of  Llechryd  Bridge,  from  which  place  a 
considerable  traflSc  was  carried  on  in  limestone  and  culm  bj-  means  of 
lighters. 

The  defendant  is  the  owner  of  a  slate  quarry  called  the  Castle  Quarr}-, 
situate  near  the  Castle  of  Kilgerran,  which  he  has  extensivel}'  worked 
since  1842.  The  defendant  had  no  spoil  bank  at  the  quarry.  The 
rubbish  fi-om  the  quarry  was  stacked  about  five  or  six  yards  from 
the  edge  of  the  river.  Previous  to  1847,  the  defendant  erected  a  wall 
to  prevent  it  from  falling  into  the  river,  but  in  that  year  a  heavy  flood 
carried  away  the  wall,  and  with  it  large  quantities  of  the  rubbish. 
Quantities  of  additional  rubbish  were  from  time  to  time  shot  bj-  the 
defendant's  workmen  on  the  same  spot,  and  so  slid  into  the  river.  By 
these  means  the  navigation  was  obstructed,  so  that  even  small  boats 
were  prevented  from  coming  up  to  Llechryd  Bridge. 

The  defendant  being  upwards  of  eighty  3-ears  of  age  was  unable  per- 
sonally to  sui)erintend  the  working  of  the  quarr}-,  which  was  managed 
for  his  benefit  by  his  sons.  The  defendant's  counsel  was  prepared  to 
offer  evidence  that  the  workmen  at  the  quarry  had  been  prohibited  both 
by  the  defendant  and  his  sons  from  thus  depositing  the  rubbish  ;  and 
that  they  had  been  told  to  place  the  rubbish  in  the  old  excavations 
and  in  a  place  provided  for  that  purpose.  The  learned  judge  intimated 
that  the  evidence  was  immaterial ;  and  he  directed  the  jury  that  as  the 
defendant  was  the  proprietor  of  the  quarry,  the  quarrying  of  which  w^as 
carried  on  for  his  benefit,  it  was  his  duty  to  take  all  proper  precautions 


SECT.  I.]  REGINA    V.    STEPHENS.  373 

to  prevent  the  rubbish  from  falling  into  the  river,  and  that  if  a  sub- 
stantial part  of  the  rubbish  went  into  the  river  from  having  been  im- 
properly stacked  so  near  the  river  as  to  fall  into  it,  the  defendant  was 
guilty  of  having  caused  a  nuisance,  although  the  acts  might  have  been 
committed  by  his  workmen,  without  his  knowledge  and  against  his 
general  orders.     The  jury  found  a  verdict  of  guilty. 

A  rule  having  been  obtained  for  a  new  trial,  on  the  ground  that  the 
judge  misdirected  the  jury  in  telling  them  that  the  defendant  would  be 
liable  for  the  acts  of  his  workmen  in  depositing  the  rubbisli  from  the 
quarries  so  as  to  become  a  nuisance,  though  without  the  defendant's 
knowledge  and  against  his  orders, 

//  S.  Giffard,  Q.  C,  and  Poland,  showed  cause.^ 

J.  W.  Bowen  and  Hughes,  in  support  of  the  rule. 

Mellor,  J.  In  tills  case  I  am  of  opinion,  and  in  my  opinion  my 
Brother  Shee  concurs,  that  the  direction  of  my  Brother  Blackburn 
was  right.  It  is  quite  true  that  tliis  in  point  of  form  is  a  proceeding 
of  a  criminal  nature,  but  in  substance  I  think  it  is  in  the  nature  of  a 
civil  proceeding,  and  I  can  see  no  reason  why  a  different  rule  should 
prevail  with  regard  to  such  an  act  as  is  charged  in  this  indictment 
between  proceedings  which  are  civil  and  proceedings  which  are  crim- 
inal. I  think  there  may  be  nuisances  of  such  a  character  that  the  rule 
I  am  applying  here,  would  not  be  applicable  to  them,  but  here  it  is  per- 
fectly clear  that  the  only  reason  for  proceeding  criminally  is  that  the 
nuisance,  instead  of  being  merely  a  nuisance  affecting  an  individual,  or 
one  or  two  individuals,  affects  the  public  at  large,  and  no  private  indi- 
vidual, without  receiving  some  special  injury,  could  have  maintained  an 
action.  Then  if  the  contention  of  those  who  say  the  direction  is  wrong 
is  to  prevail,  the  public  would  have  great  difficulty  in  getting  redress. 
The  object  of  this  indictment  is  to  prevent  the  recurrence  of  the  nui- 
sance. The  prosecutor  cannot  proceed  by  action,  but  must  proceed  by 
indictment,  and  if  this  were  strictly  a  criminal  proceeding  the  prosecu- 
tion would  be  met  with  the  objection  that  there  was  no  mens  rea :  that 
the  indictment  charged  the  defendant  with  a  criminal  offence,  when  in 
reality  there  was  no  proof  that  the  defendant  knew  of  the  act,  or  that 
he  himself  gave  orders  to  bis  servants  to  do  the  particular  act  he  is 
charged  with  ;  still  at  the  same  time  it  is  perfectly  clear  that  the  defend- 
ant finds  the  capital,  and  carries  on  the  business  which  causes  the 
nuisance,  and  it  is  carried  on  for  his  benefit ;  although  from  age  or  in- 
firmity the  defendant  is  unable  to  go  to  the  premises,  the  business  is 
carried  on  for  him  by  his  sons,  or  at  all  events  by  his  agents.  Under 
these  circumstances  the  defendant  must  necessarily  give  to  his  servants 
or  agents  all  the  authority  that  is  incident  to  the  carrying  on  of  the  busi- 
ness. It  is  not  because  he  had  at  some  time  or  other  given  directions 
that  it  should  be  carried  on  so  as  not  to  allow  the  refuse  from  the  works 
to  fall  into  the  river,  and  desired  his  servants  to  provide  some  other 

1  Arguments  of  counsel  are  omitted. 


374  EEGINA  V.    STEPHENS.  [CHAP.  VI. 

place  for  depositing  it,  that  when  it  has  fallen  into  the  river,  and  has 
become  prejudicial  to  the  public,  he  can  say  he  is  not  liable  on  an  indict- 
ment for  a  nuisance  caused  by  the  acts  of  his  servants.  It  appears  to 
me  that  all  it  was  necessary  to  prove  is,  that  the  nuisance  was  caused 
in  the  carrying  on  of  the  works  of  the  quarry.  That  being  so  my 
Brother  Blackburn's  direction  to  the  jury  was  quite  right. 

I  at^ree  that  the  authorities  that  bear  directly  upon  the  case  are  very 
few.  °In  the  case  of  Reg  v.  Russell,  3  E.  &  B.  942,  23  L.  J.  M.  C.  173, 
the  observations  of  Lord  Campbell  might  have  been  justified  by  the  cir- 
cumstances of  that  case,  though  as  I  understand  it  the  judgment  of  the 
other  judges  did  not  proceed  on  the  same  reasons.  It  is  therefore  only 
the  opinion  of  Lord  Campbell  as  applied  to  that  case.  Whether  there 
is  or  is  not  any  distinction  between  that  case  and  the  present  may  be 
open  to  question ;  but  if  there  is  no  distinction,  I  should  be  prepared 
rather  to  have  acted  upon  the  reasons  which  influenced  the  other  judges 
than  those  which  influenced  Lord  Campbell.  Inasmuch  as  the  object 
of  the  indictment  is  not  to  punish  the  defendant,  but  really  to  prevent  the 
nuisance  from  being  continued,  I  think  that  the  evidence  which  would 
support  a  civil  action  would  be  sufficient  to  support  an  indictment. 

The  rule  must  be  discharged.  As  I  have  said,  my  Brother  Shee  eon- 
curs  with  me  in  that  opinion. 

Blackburn,  J.  I  need  only  add  that  I  see  no  reason  to  change  the 
opinion  I  formed  at  the  trial.  I  only  wish  to  guard  myself  against  it 
being  supposed  that  either  at  the  trial  or  now,  the  general  rule  that  a 
principal  is  not  criminally  answerable  for  tlie  act  of  his  agent  is  in- 
fringed. All  that  it  is  necessary  to  say  is  this,  that  where  a  person  main- 
tains works  by  his  capital,  and  employs  servants,  and  so  carries  on  the 
works  as  in  fact  to  cause  a  nuisance  to  a  private  right,  for  which  an 
action  would  lie,  if  the  same  nuisance  inflicts  an  injury  upon  a  public 
right  the  remedy  for  which  would  be  by  indictment,  the  evidence  which 
would  maintain  the  action  would  also  support  the  indictment.  That  is 
all  that  it  was  necessary  to  decide  and  all  that  is  decided. 

Bule  discharged. 


L 


SECT.  I.]  CHISHOLM    V.   DOULTON.  375 

3lo7 

CHISHOLM  V.   DOULTON. 

High  Court  of  Justice,  Queen's  Bench  Division.     1889. 

[Reported  22  Q.  D.  D.  736.] 

Case  stated  b}-  a  metropolitan  police  magistrate  under  20  &  21  Vict. 
0.43. 

Tlie  respondent,  the  owner  and  occupier  of  certain  pottery  works 
situate  in  the  metropolis,  was  summoned  by  the  appellant,  one  of  the 
chief  inspectors  of  the  metropolitan  police,  for  having  on  April  18, 
1888,  negligently  used  a  furnace  employed  in  his  pottery  works  so  that 
the  smoke  was  not  effectually  consumed  or  burnt,  contrary  to  the  pro- 
visions of  16  &  17  Vict.  c.  128,  s.  1.^ 

The  magistrate  dismissed  the  summons  subject  to  a  case,  of  which 
the  material  facts  were  as  follows :  Smoke  issued  for  the  space  of  ten 
minutes  on  the  morning  of  the  day  in  question  from  one  of  the  respon- 
dent's furnaces,  but  the  furnace  was  properly  constructed,  and  the 
smoke  arose  by  the  act  of  the  stoker  or  person  who  lighted  tlie  fire, 
who  might  by  proper  care  have  prevented  the  occurrence.  Neither  the 
respondent  nor  his  foreman  were  guilty  of  any  negligence.  The  ques- 
tion for  the  opinion  of  the  Court  was  whether  the  respondent  was 
liable  for  the  negligence  of  the  stoker. 

Field,  J.  My  mind  has  not  been  altogether  free  from  doubt  during 
the  argument,  but  I  think  upon  the  whole  that  the  true  conclusion  to 
arrive  at  upon  the  construction  of  the  Act  is  that  the  respondent  can- 
not be  convicted  upon  the  facts  found  by  the  magistrate.  The  offence 
of  which  it  is  sought  to  convict  him  is  (to  put  it  shortly)  that  of  negli- 
gently using  a  furnace  so  as  to  emit  black  smoke,  which  is  the  thing 

1  By  the  Smoke  Nuisance  (Metropolis)  Act,  1853  (16  &  17  Vict  c.  128,  s.  1),  it  is 
provided  that  "every  furnace  employed  in  any  mill,  factory,  ...  or  other  buildings 
used  for  the  purpose  of  trade  or  manufacture  within  the  metropolis,  .  .  .  shall  in  all 
cases  be  constructed  or  altered  so  as  to  consume  or  burn  the  smoke  arising  from  such 
furnace ;  and  if  any  person  shall  .  .  .  within  the  metropolis  use  any  such  furnace 
which  shall  not  be  constructed  so  as  to  consume  or  burn  its  own  smoke,  or  shall  so 
negligently  use  any  such  furnace  as  that  the  smoke  arising  therefrom  shall  not  be  effec- 
tually consumed  or  burnt,  or  shall  carry  on  any  trade  or  business  wliicli  shall  occasion 
any  noxious  or  offensive  effluvia,  or  otherwise  annoy  the  neighbourhood  or  inhabitants, 
without  using  the  best  practicable  means  for  preventing  or  counteracting  such  smoke 
or  other  annoyance,  every  person  so  offending,  being  the  owner  or  occupier  of  the 
premises,  or  being  a  foreman  or  other  person  employed  by  such  owner  or  occupier, 
shall,  upon  a  summary  conviction  for  such  offence  before  any  justice  or  justices,  forfeit 
and  pay  a  sum  of  not  more  than  five  pounds  nor  less  than  forty  shillings,  and  upon  a 
second  conviction  for  such  offence  the  sura  of  ten  pounds,  and  for  each  subsequent 
conviction  a  sum  doubled  the  amount  of  the  penalty  imposed  for  the  last  preceding 
conviction." 


I 


376  cinsiiOLM  v.  doulton,  [chap.  vt. 

that  the  legislature  was  desirous  of  preventing.  The  magistrate  has 
found  that  the  furnace  was  properly  constructed,  and  that  the  respon- 
dent had  gone  to  great  expense  in  taking  precautions  against  the  dis- 
charge of  smoke  from  his  furnaces.  He  also  found  tliat  the  respondent 
had  taken  care  to  employ  an  efficient  foreman  to  superintend  the  vari- 
ous persons  having  control  of  the  furnaces.  In  short,  the  respondent 
was  not  personally  guilty  of  any  negligence  whatever.  The  negligence 
which  caused  the  emission  of  smoke  on  tlie  particular  morning  in  ques- 
tion was  that  of  the  stoker  who  lit  the  fire.  And  the  question  is, 
whether  the  respondent  is  criminally  answerable  for  the  negligence  of 
his  servant. 

Now  tlie  general  rule  of  law  is  that  a  person  cannot  be  convicted  and 
punished  in  a  proceeding  of  a  criminal  nature  unless  it  can  be  shewn 
that  he  had  a  guilty  mind.  And  though  the  legislature  undoubtedly 
may  enact,  as  in  the  case  of  certain  of  the  offences  under  this  very  Act 
it  has  enacted,  that  persons  shall  be  criminally  responsible  for  the 
doing  of  particular  acts,  even  though  they  have  no  guilty  mind  in 
doing  them,  yet  it  is  for  the  prosecution  in  each  case  to  make  out 
clearly  that  the  legislature  has  in  fact  so  enacted. 

It  is  said  that  the  respondent  is  liable  because  he  in  fact  used  this 
furnace  for  the  purposes  of  his  trade.  I  agree  that  he  used  it,  for  I 
entertain  no  doul)t  that  if  this  were  a  civil  proceeding  for  damages  lie 
would  be  liable,  and  yet  he  could  in  such  proceeding  only  be  liable 
if  he  were  the  person  using  it.  But  the  mere  use  of  a  furnace  so  as  to 
emit  smoke  is  not  an  offence  against  the  section,  the  offence  is  the 
using  of  it  negligently.  Suppose  that  by  an  accident  which  no  care 
could  have  guarded  against  the  furnace  had  got  out  of  order,  whereby 
an  emission  of  smoke  ensued,  that  could  not  be  said  to  be  an  offence, 
for  there  would  be  no  negligence.  The  essence  of  the  offence  is  that 
it  should  be  negligent.  And  here  the  respondent  took  all  the  care  he 
could. 

Looking  at  the  cases  in  which  it  has  been  held  that  no  appeal  lies  to 
the  Court  of  Appeal  from  decisions  relating  to  public  nuisances,  I  am 
forced  to  the  conclusion  that  this  is  not  a  mere  civil  proceeding,  but 
that  the  offence  charged  against  the  respondent  is  a  criminal  offence. 
No  doubt  in  the  case  of  Reg.  v.  Stephens,  Law  Rep.  1  Q.  B.  702,  the 
learned  judges  came  to  the  conclusion  that  in  that  particular  case  the 
proceeding  was  civil.  AVhether  they  were  right  or  wrong  in  that  view 
it  is  not  necessary  for  me  to  express  any  opinion,  but  the}'  carefully 
guarded  themselves  against  being  supposed  to  infringe  on  the  general 
rule  of  law  that  a  master  is  not  criminally  responsible  for  the  acts  of 
his  servants.  That  case  must  be  taken  to  stand  upon  its  own  facts. 
The  case  here  being  a  criminal  one  I  must  apply  the  general  rule,  and 
by  that  rule  the  respondent  must  be  acquitted. 

The  conclusion  that  the  respondent  is  not  criminally  liable  for  his 
servant's  negligence  is  much  fortified  by  a  comparison  of  the  provi- 


SECT.  I.j  CHISHOLM    V.   DOULTON.  377 

sions  of  s.  1  with  those  of  s.  2.  Sect.  1  applies  to  a  stationaiy  thing, 
a  furnace  fixed  in  a  building,  and  provides  that  the  person  to  be 
punished  shall  be  the  "  person  so  offending,"  the  person,  that  is  to  sa}', 
■who  negligentl}'  uses  the  furnace  ;  whereas  s.  2  applies  to  a  thing  which 
is  transient,  a  steamer  moving  up  or  down  the  river,  and  provides  that 
the  person  to  be  punished  shall  be  not  the  "  person  so  offending,"  but 
"  the  owner  or  master  or  other  person  having  charge  of  such  vessel." 
From  a  comparison  of  the  language  of  those  two  sections  it  seems  to 
me  that  in  the  one  case  the  intention  of  the  legislature  was  to  strike  at 
the  person  guilt}'  of  the  negligence,  while  in  the  other,  owing  to  the 
difilculty  of  finding  out  who  that  person  was,  it  struck  directly  at  the 
owner  or  person  in  charge.  I  quite  admit  that  this  construction  may 
throw  difficulties  in  the  way  of  securing  convictions  under  the  former 
section,  but  I  must  construe  the  language  as  I  find  it. 

I  must  also  confess  that  the  provision  of  s.  1  as  to  the  increase  of 
the  penalties  on  repeated  convictions  raises  a  doubt  in  my  mind  as  to 
the  correctness  of  our  construction.  The  penalty  payable  on  the  first 
conviction  is  one  which,  with  the  costs,  there  would  be  great  difficulty 
in  getting  paid  by  a  mere  stoker ;  and  on  each  subsequent  conviction 
the  penalty  is  to  be  doubled,  so  that  if  the  stoker  is  the  person  respon- 
sible the  penalty-  is  to  be  recovered  from  a  person  who  is  utterly  unable 
to  pa}-  it.  This  certaiiil}'  does  seem  to  suggest  that  the  person  respon- 
sible is  the  person  to  whom  the  premises  belong,  and  who  is  capable  of 
a  series  of  offences,  the  opportunity  of  committing  which  a  stoker 
would  probably  not  be  given. 

But  although  I  feci  the  diflJiculty  I  think  it  better  to  be  bound  by  the 
general  rule  of  law  that  a  man  cannot  be  convicted  of  a  criminal 
offence  unless  he  had  a  criminal  mind.  I  am  therefore  of  opinion  that 
the  magistrate  was  right,  and  that  this  appeal  must  be  dismissed. 

Cave,  J.  I  am  of  the  same  opinion.  It  is  a  general  principle  of 
our  criminal  law  that  there  must  be  as  an  essential  ingredient  in  a 
ci'irainal  offence  some  blameworthy  condition  of  mind.  Sometimes  it 
is  negligence,  sometimes  malice,  sometimes  guilty  knowledge  —  but  as 
a  general  rule  there  must  be  something  of  that  kind  which  is  designated 
by  the  expression  7nens  rea.  Moreover,  it  is  a  principle  of  our  criminal 
law  that  the  condition  of  mind  of  the  servant  is  not  to  be  imputed  to 
the  master.  A  master  is  not  criminally  responsible  for  a  death  caused 
by  his  servant's  negligence,  and  still  less  for  an  offence  depending  on 
the  servant's  malice  ;  nor  can  a  master  be  held  liable  for  the  guilt  of  his 
servant  in  receiving  goods  knowing  them  to  have  been  stolen.  And 
this  principle  of  the  common  law  applies  also  to  statutory  offences,  with 
this  difference,  that  it  is  in  the  power  of  the  legislature,  if  it  so  pleases, 
to  enact,  and  in  some  cases  it  has  enacted,  that  a  man  may  be  con- 
victed and  punished  for  an  offence  although  there  was  no  blameworthy 
condition  of  mind  about  him  ;  but,  inasmuch  as  to  do  so  is  contrary  to 
the  general  principle  of  the  law,  it  lies  on  those  who  assert  that  the 


378  CHISHOLM   V.   DOULTON.  [CHAP.  VI. 

legislature  has  so  enacted  to  make  it  out  convincingly  by  the  language 
oAhe  statute ;  for  we  ought  not  lightly  to  presume  that  the  legislature 
inteniled  that  A.  should  be  punished  for  the  fault  of  B. 

Now  apply  those  principles  to  the  statute  in  question.  Sect.  1 
enacts  that  every  furnace  shall  be  "constructed  or  altered  so  as  to 
consume  or  burn  the  smoke  arising  from  such  furnace."  Then  comes 
the  part  of  the  section  which  affixes  penalties  for  various  acts  tending 
to  produce  the  evil  against  which  the  legislation  is  directed.  "  If  any 
person  shall  .  .  .  use  any  such  furnace  which  shall  not  be  constructed 
so  as  to  consume  or  burn  its  own  smoke."  Now  there  no  condition  of 
mind  is  required  as  an  element  in  the  offence  ;  and  we  ought  to  hold 
with  regard  to  that  offence  that  the  owner  of  the  works,  although  not 
cognisant  that  his  furnace  is  incapable  of  consuming  its  own  smoke,  is 
liable  to  be  convicted  if  it  in  fact  is  so;  for  it  is  expressly  enacted  that 
if  he  uses  a  furnace  not  properly  constructed  he  shall  be  liable  to  the 
penalty,  and  he  certainly  may  use  it  by  his  servants.  Then,  passing 
over  the  middle  clause  for  a  moment,  another  part  of  the  section  enacts 
that  if  any  person  "shall  carry  on  any  trade  or  business  which  shall 
occasion  any  noxious  or  offensive  effluvia,  or  otherwise  annoy  the 
neighbours  or  inhabitants,  without  using  the  best  practicable  means  for 
preventing  or  counteracting  such  smoke  or  other  annoyance,"  he  shall 
be  liable.  There,  again,  a  mens  red  is  not  essential  to  the  commission 
of  the  ofifence,  the  owner  of  the  premises  is  absolutely  liable  if  the 
trade  is  carried  on  in  such  a  manner.  Now  go  back  to  the  clause 
under  which  the  respondent  has  been  summoned,  "  or  shall  so  negli- 
gently use  any  such  furnace  as  that  the  smoke  arising  therefrom  shall 
not  be  effectually  consumed."  This  differs  from  the  otlier  clauses  in 
that  it  introduces  the  word  "negligently,"  a  word  which  imports  a 
blamable  condition  of  mind.  If  that  word  were  not  there,  the  owner 
would  be  responsible  for  the  use  of  the  furnace  in  such  a  way  that  the 
smoke  was  not  consumed  although  the  use  was  by  his  servants  and  not 
personally  by  himself.  But  the  legislature  has  chosen  to  make  negli- 
gence an  essential  ingredient  in  this  particular  offence.  And,  al- 
though the  decisions  under  the  Licensing  Acts  have  established  that, 
where  a  statute  has  expressly  proliibited  the  doing  of  something  with- 
out reference  to  the  condition  of  mind  of  the  party  doing  it,  it  ma}' 
under  certain  circumstances,  and  having  regard  to  the  object  of  the 
statute,  be  reasonable  to  infer  that  the  legislature  intended  that  the 
master  should  be  responsible  if  his  servant  disobeyed  the  prohibition, 
yet  so  far  as  I  know  no  statute  has  ever  yet  been  judicially  interpreted 
as  enacting  that  where  negligence  is  an  essential  ingredient  in  the 
offence  a  master  is  to  be  responsible  for  the  negligence  of  his  servant. 

Then  is  there  anything  else  in  the  section  which  points  to  a  different 
interpretation  of  the  clause  which  we  have  to  construe.  I  think  there 
is  not.  The  section  goes  on  —  "  Every  person  so  offending,  being  the 
owner  or  occupier  ol  the  premises,  or  being  a  foreman  or  other  person 


SECT.  I.]  SHERRAS    V.   DE    KUTZEN.  379 

emplo3-ed  b\'  such  owner  or  occupier,"  shall  be  liable  to  the  penalties 
provided.  That  no  doubt  clearly  imports  that  under  certain  circum- 
stances the  owner  or  occupier  ma}'  be  guilty  of  some  of  the  offences 
created  by  the  section;  but  it  creates  no  difficulty,  for  the  words  would 
be  satisfied  by  reference  to  the  first-mentioned  offence,  that  of  using 
a  furnace  not  properly  constructed,  which,  as  I  have  said,  would  clearly 
be  an  offence  in  the  owner.  And,  further,  the  owner  might  be  guilt}- 
of  the  offence  of  negligently  using  the  furnace,  provided  there  was 
personal  negligence  on  his  part,  as,  for  instance,  if  he  were  to  employ 
an  incompetent  person  to  attend  to  the  furnace,  or  neglected  to  pro- 
vide the  person  employed  with  tlie  proper  appliances  to  prevent  smoke 
arising,  or  if  he  continued  to  retain  in  his  employment  a  person  who, 
by  allowing  smoke  to  be  emitted,  shewed  that  he  was  unfit  to  liave  the 
control  of  the  furnace.  On  the  other  hand  the  words  above  referred 
to  equally  clearly  import  that  under  certain  circumstances  tlie  person 
employed  b}'  the  owner  ma}'  be  guilt}'  of  some  of  the  offences  created 
by  the  section  and  liable  to  the  penalties  thereto  attaclied.  And  this, 
to  my  mind,  at  once  disposes  of  the  diflflculty  suggested  with  regard  to 
the  magnitude  of  the  penalties,  which  it  was«said  a  stoker  would  be 
unable  to  pay,  and  which  it  was  said  consequently  pointed  to  the 
owner  as  the  sole  person  who  was  intended  to  be  held  responsible. 

I  should  be  quite  content  to  rest  my  judgment  on  a  consideration  of 
the  language  of  the  1st  section  alone.  But  the  case  for  the  respondent 
is  still  stronger  when  we  come  to  look  at  the  language  of  the  2nd 
section.  The  language  under  that  section  is  very  different.  The 
legislature  has  there  clearly  expressed  its  intention  that  in  the  event  of 
the  stoker  on  board  a  steamer  being  guilty  of  negligence  in  the  use 
of  the  furnace,  the  owner  or  person  in  charge  of  the  vessel  should  be 
responsible.  But  the  fact  that  the  legislature  where  it  intended  that 
tlie  master  should  be  responsible  for  the  negligence  of  the  servant  has 
expressed  that  intention  in  plain  language,  affords  a  strong  reason  why 
we  should  not  infer  such  an  intention  where  it  has  not  expressed  it 
clearly. 

For  these  reasons  I  think  that  the  decision  of  the  magistrate  must 
be  alfirmed.  ^    _^ «,/  Appeal  dismissed. 


SHERRAS  V.  DE  RUTZEN. 
High  Court  of  Justice,  Queen's  Bench  Division.     1895. 
[Reported  1895,  1  Q.  5.  918.] 

The  appellant  was  the  licensee  of  a  public-house,  and  was  convicted 
before  a  metropolitan  police  magistrate  under  s.  16,  sub-s.  2,  of  the 
Licensing  Act,  1872,  for  having  unlawfully  supplied  liquor  to  a  police 
constable  on  duty  without  having  the  authority  of  a  superior  officer  of 
such  constable  for  so  doing. 


330  SHLRRAS  V.    DE  KUTZEN.  [CHAP.  VI. 

It  appeared  that  the  appellant's  public-house  was  situated  nearl}- 
opposite  a  police-station,  and  was  much  frequented  by  the  police 
when  off  duty  and  that  on  July  16,  1894,  at  about  4.40,  the  police 
constable  in  question,  being  then  on  duty,  entered  the  appellant's 
house  and  was  served  with  liquor  by  the  appellant's  daughter  in  his 
presence.  Prior  to  entering  the  house  the  police  constable  had  re- 
moved his  armlet,  and  it  was  admitted  that  if  a  police  constable  is  not 
wearino-  his  armlet  that  is  an  indication  that  he  is  off  duty.  Neither 
the  appellant  nor  his  daughter  made  any  inquiry  of  the  police  con- 
stable as  to  whether  he  was  or  was  not  on  duty,  but  they  took  it  for 
granted  that  he  was  off  duty  in  consequence  of  his  armlet  being  off, 
and  served  him  with  liquor  under  that  belief.^ 

Day,  jJf  I  am  clearly  of  opinion  that  this  conviction  ought  to  be 
quashed.  This  police  constable  comes  into  the  appellant's  house 
without  his  armlet,  and~witF^every  appearance^of  bemg_off  duty.  The 
house  was  in  the  immediate  neighborhood  of  the  police  station,  and  the 
appellant  believed,  and  he  had  very  natural  grounds  for  believing,  that 
the  constable  was  off  duty.  In  that  belief  be  accordingly  served  him 
with  liquor.  As  a  matter  of  fact,  the  constable  was  on  duty  ;  but  does 
that  fact  make  the  innocent  act  of  the  appellant  an  offence?  I  do  not 
think  it  does.  He  had  no  intention  to  dp  a  wrongful  act ;  he  acted  in 
the  bona  fide  belief  that  the  constable  was  off  dutv.  It  seems  to  me 
that  the  contention  that  he  committed  an  offence  is  utterly  erroneous. 
An  argument  has  been  based  on  the  appearance  of  the  word  "  know- 
ingly "  in  sub-s.  1  of  s.  16,  and  its  omission  in  sub-s.  2.  In  my  opin- 
ion the  only  effect  of  this  is  to  shift  the  burden  of  proof.  In  cases 
under  sub-s.  1  it  is  for  the  prosecution  to  prove  the  knowledge,  while  in 
cases  under  sub-s.  2,  the  defendant  has  to  prove  that  he  did  not  know. 
That  is  the  only  inference  I  draw  from  tlie  insertion  of  the  word  "  know- 
ingly "  in  the  one  sub-section  and  its  omission  in  the  other. 

It  appears  to  me  that  it  would  be  straining  the  law  to  sa}'  that  this 
publican,  acting  as  he  did  in  the  bona  fide  bejief  that  the  constable  was 
off  duly,  and  having  reasonable  grounds  for  that  belief,  was  neverthe- 
less guilt}'  of  an  offence  against  the  section,  for  which  he  was  liable 
both  to  a  penalty  and  to  have  his  license  indorsed. 

Wright,  J.  I  am  of  the  same  opinion.  There  are  many  cases  on  the 
subject,  and  it  is  not  very  easy  to  reconcile  them.^  There  is  a  presump- 
tion that  mens  rea,  an  evil  intention,  or  a  knowledge  of  the  wrongful- 
ness of  the  act,  is  an  essential  ingredient  in  everv  offence ;  but  that 
presumption  is  liable  to  be  displaced  either  b\'  the  words  of  the  statute 
creating  the  offence  or  by  the  subject-matter  with  which  it  deals,  and 
both  must  be  considered  :  Nicrhols  i\  Hall,  Law  Rep.  8  C.  P.  322.  One 
of  the  most  remarkable  exceptions  was  in  the  case  of  bigamy.  It 
was  held  by  all  the  judges,  on  the  statute  1  Jac.  1,  c.  11,  that  a  mnn 
was  rightly  convicted   of  bigamy  who   had   married  after  an  invalid 

^  The  statement  of  facts  has  been  slightly  condensed.  The  arguments  are  omitted. 
—  Ed. 


SECT.  I.]  SHEIUIAS   V.   DE    RUTZEN.  381 

Scotch  divorce,  which  had  been  obtained  in  good  faith,  and  the  validit}' 
of  which  he  had  no  reason  to  doui)t :  LoUey's  Case,  R.  &  R.  237.  An- 
other exception,  apparent!}'  grounded  on  the  language  of  a  statute,  is 
Prince's  Case,  Law  Rep.  2  G  C.  154,  where  it  was  held  by  fifteen  judges 
against  one  that  a  man  was  guilt}'  of  abduction  of  a  girl  under  sixteen, 
although  he  believed,  in  good  faith  and  on  reasonable  grounds,  that  she 
was  over  that  age.  Apart  from  isolated  and  extreme  cases  of  this  kind, 
the  principal  classes  of  exceptions  may  perhaps  be  reduced  to  three. 
One  is  a  class  of  acts  which,  in  the  language  of  Lush,  J.,  in  Davies  v. 
Harvey,  Law  Rep.  9  Q.  B.  433,  are  not  criminal  in  any  real  sense,  but 
are  acts  which  in  the  public  interest  are  prohibited  under  a  penalty. 
Several  such  instances  are  to  be  found  in  the  decisions  on  the  Revenue 
Statutes,  e.  g.,  Attorney  General  v.  Lockwood,  9  M.  &  W.  378,  where 
the  innocent  possession  of  liquorice  by  a  beer  retailer  was  held  an 
offence.  So  under  the  Adulteration  Acts,  Reg.  v.  Woodrow,  15  M.  & 
W.  404,  as  to  the  innocent  possession  of  adulterated  tobacco ;  Fitz- 
patrick  v.  Kelly,  Law  Rep.  8  Q.  B.  337,  and  Roberts  v.  Egerton,  Law 
Rep.  9  Q.  B.  494,  as  to  the  sale  of  adulterated  food.  So  under  the 
Game  Acts,  as  to  the  innocent  possession  of  game  by  a  carrier  :  Rex  v. 
Marsh,  2  B.  &  C.  717.  So  as  to  the  liability  of  a  guardian  of  the  poor, 
whose  partner,  unknown  to  him,  supplied  goods  for  the  poor  :  Davies 
V.  Harvey,  Law  Rep.  9  Q.  B.  433.  To  the  same  head  may  be  referred 
Reg.  V.  Bishop,  5  Q.  B.  D.  259,  where  a  person  was  held  rightly  con- 
victed of  receiving  lunatics  in  an  unlicensed  house,  although  the  jury 
found  that  he  honestly  and  on  reasonable  grounds  believed  that  they 
were  not  lunatics.  Another  class  compreliends  some,  and  perhaps  all, 
public  nuisances :  Reg.  v.  Stephens,  Law  Rep.  1  Q.  B.  702,  where  the 
employer  was  held  liable  on  indictment  for  a  nuisance  caused  by  work- 
men without  his  knowledge  and  contrary  to  his  orders  ;  and  so  in  Rex 
V.  Medley,  6  C.  &  P.  292,  and  Barnes  v.  Akroyd,  Law  Rep.  7  Q.  B.474. 
Lastly,  there  may  be  cases  in  which,  although  the  proceeding  is  criminal 
in  form,  it  is  i-eally  only  a  summary  mode  of  enforcing  a  civil  right: 
see  per  Williams  and  Willes,  JJ.,  in  Morden  -v.  Porter,  7  C.  B.  (N.  S.) 
641;  29  L.  J.  (M.  C.)  213,  as  to  unintentional  trespass  in  pursuit  of 
game  ;  Lee  v.  Simpson,  3  C.  B.  871,  as  to  unconscious  dramatic  piracy; 
and  Hargreaves  u.  Diddams,  Law  Rep.  10  Q.  B.  582,  as  to  a  honajide 
belief  in  a  legally  impossible  right  to  fish.  But,  except  in  such  cases 
as  these,  there  must  in  general  be  guilty  knowledge  on  the  part  of  the 
defendant,  or  of  some  one  whom  he  has  put  in  his  place  to  act  for  him, 
generally,  or  in  the  particular  matter,  in  order  to  constitute  an  offence. 
It  is  plain  that  if  guilty  knowledge  is  not  necessary,  no  care  on  the  part 
of  the  publican  could  save  him  from  a  conviction  under  s.  16,  sub-s.  2, 
since  it  would  be  as  easy  for  the  constable  to  deny  that  he  was  on  duty 
when  asked,  or  to  produce  a  forged  permission  from  his  superior  officer, 
as  to  remove  his  armlet  before  entering  the  public-house.  I  am,  there- 
fore, of  opinion  that  this  conviction  ought  to  be  quashed. 

Conviction  quashed. 


382  BANK   OF  NEW   SOUTH   WALES  V.   PIPEE.  [CHAP.  VI. 

BANK   OF  NEW  SOUTH   WALES   v.   PIPER. 

Judicial  Committee  of  the  Privy  Council.     1897. 

[Reported  1897,  A.  C.  383.] 

The  judgment  of  their  Lordships  was  delivered  by 
Sir  Richard  Couch.  The  suit  in  this  appeal  was  brought  b}'  the 
respondent  against  the  appellants  for  falsely  and  maliciously  and  with- 
out reasonable  or  probable  cause  making  a  charge  against  him  before 
a  justice  of  the  peace,  upon  which  he  was  summoned  to  appear  at  the 
police  court  at  Cowra  in  New  South  Wales,  and  was  committed  for 
trial  at  the  court  of  quarter  sessions  at  Cowra.  Afterwards  the 
attorney  general  refused  to  prosecute.  The  defendants  pleaded  not 
guilty.  The  trial  took  place  in  March,  1895,  before  Simpson,  J.,  when 
the  jury  found  a  verdict  for  the  plaintiff  for  lOOOZ.  damages.  On  May 
7,  1895,  a  rule  nisi  for  a  new  trial  or  for  a  nonsuit  or  verdict  for  the 
defendants,  pursuant  to  leave  reserved  at  the  trial,  was  granted  by 
the  Supreme  Court.  On  May  11,  1896,  the  rule  was  discharged  by  the 
Chief  Justice  and  Owen,  J.,  Stephen,  J.,  the  tliird  judge,  dissenting. 

The  appellants  are  a  banking  company  incorporated  in  the  Colony 
of  New  South  Wales  by  Act  of  Parliament  and  Deed  of  Settlement. 
The  respondent  is  a  farmer  and  grazier  residing  near  Cowra.  By  a 
deed  of  mortgage  dated  February  29,  1892,  the  respondent  assigned  to 
the  appellants  by  way  of  mortgage  2050  sheep,  ninety-five  head  of 
cattle,  and  twelve  horses,  as  a  collateral  security  for  credit  advances 
and  accommodation  to  the  extent  of  2b0l.  in  account  current  which  the 
bank  had  agreed  to  grant  to  him.  The  mortgage  was  duly  executed 
and  registered  in  accordance  with  the  provisions  of  the  Act  11  Vict. 
No.  4.     Sect.  7  of  that  Act  is  as  follows :  — 

"  And  whereas  it  is  expedient,  with  a  view  to  increase  the  public  con- 
fidence in  the  validity  of  such  preferable  liens  on  wool  and  mortgages 
of  live  stock  to  surround  them  with  the  penal  provisions  necessary  for 
the  punishment  of  frauds  :  Be  it  enacted  that  any  grantor  of  any  sucli 
preferable  lien  on  wool  or  of  any  mortgage  of  sheep,  cattle,  or  horses 
and  of  their  increase  and  progeny  under  this  Act,  whether  such  grantor 
shall  be  principal  or  agent,  who  shall  afterwards  by  the  sale  or  delivery 
of  the  wool  under  any  such  lien,  without  the  written  consent  of  the  lieneo, 
to  any  purchaser,  pawnee,  or  other  person,  or  by  selling,  steaming, 
or  boiling  down  or  causing  to  be  sold,  steamed,  or  boiled  down  without 
such  written  consent  as  aforesaid  the  sheep  whereon  the  same  shall  be 
growing  with  a  view  to  defraud  such  lienee  of  such  wool  or  of  the  value 
thereof,  or  who  shall,  after  the  due  execution  and  registry  of  any  such 
mortgage,  without  the  written  consent  of  tlie  mortgagee  thereof,  sell  or 
dispose  of  or  steam  or  boil  down,  or  cause  to  be  sold  and  disposed  of  or 


SECT.  I.]  BANK   OF   NEW   SOUTH   WALES   V.   PIPER.  383 

to  be  steamed  or  boiled  down,  an}'  sheep,  cattle,  or  horses  or  their 
increase  or  progeny-,  or  who  shall  in  any  wa}'  or  by  any  means  whatso- 
ever or  howsoever  directly  or  indirectly  destroy,  defeat,  invalidate,  or 
impair,  or  any  other  person  or  persons  who  shall  wilfully  and  knowingly 
incite,  aid,  or  abet  any  such  grantor  directly  or  indirectly  to  defeat, 
destroy,  invalidate  or  impair  the  right  of  property  of  any  lienee  in  the 
wool  of  any  slieep  mentioned  and  described  in  any  such  registered 
agreement  as  aforesaid,  or  the  right  of  property  of  any  such  mortgagee 
as  aforesaid,  in  any  sheep,  cattle,  or  horses  or  their  increase  and  progeny 
mentioned  in  any  mortgage  duly  executed  and  registered  as  aforesaid, 
nnder  the  provisions  of  this  Act,  shall  be  severally  held  and  deemed 
guilty  of  an  indictable  fraud  and  misdemeanor  ;  and  being  thereof  duly 
convicted,  shall  be  severally  liable,  in  the  discretion  of  the  judge  or 
Court  before  whom  any  such  offender  shall  be  so  convicted,  to  fine  or 
imprisonment,  or  to  both  fine  and  imprisonment,  for  any  period  not  ex- 
ceeding three  years  with  or  without  hard  labor  at  the  discretion  of 
such  Court  or  judge." 

In  May,  1893,  whilst  the  mortgage  was  subsisting,  and  the  respon- 
dent was  indebted  thereon  to  the  appellants  in  about  240/.,  the  respon- 
dent, without  tlieir  written  consent,  sold  and  delivered  to  one  Robert 
Philip  King  645  sheep  and  a  number  of  cattle,  part  of  the  sheep  and 
cattle  included  in  the  mortgage.  On  November  3,  1893,  James 
Thomas  Evans,  the  manager  of  the  bank  at  Cowra,  swore  an  infor- 
mation under  s.  7  before  a  justice  of  the  peace  that  the  respondent 
on  or  about  May  19,  1893,  without  the  written  consent  of  the  bank, 
sold  and  disposed  of  the  sheep  and  cattle  to  King.  Upon  this  infor- 
mation the  respondent  was  brought  before  the  justice  of  the  peace  and 
committed  for  trial,  but  the  Attorney-General,  as  already  stated,  re- 
fused to  file  a  bill  against  him.     The  action  was  then  brought. 

At  the  trial  the  respondent  admitted  the  execution  and  registration 
of  the  mortgage  and  the  sale  to  King,  and  did  not  suggest  or  set  up 
that  at  the  time  of  the  sale  he  had  or  believed  himself  to  have  the 
written  consent  of  the  appellants  or  their  manager  to  the  sale ;  but  he 
swore  that  before  the  sale  he  obtained  the  verbal  consent  of  Evans  to 
it.  At  the  close  of  the  respondent's  case  the  appellants'  counsel  ap- 
plied for  a  nonsuit  on  the  ground  that  on  the  respondent's  evidence  he 
was  in  fact  guilty  of  the  offence  with  which  he  had  been  charged,  and 
that  even  if  it  were  proved  that  the  appellants  had  given  a  verbal  con- 
sent to  the  sale,  it  would  afford  no  answer  to  the  charge  ;  and  that, 
therefore,  upon  the  admitted  facts  there  was  reasonable  and  probable 
cause  for  the  information  and  charge.  The  learned  judge  declined  to 
nonsuit,  but  reserved  leave  to  the  appellants  to  move  to  enter  a  non- 
suit or  a  verdict  for  them.  Evans  was  then  examined  as  a  witness  for 
the  appellants.  He  denied  that  he  gave  the  respondent  any  authority 
orally  or  in  writing  to  make  the  sale  to  King;  but  the  jury,  in  answer 
to  the  first  question  put  to  them  by  the  learned  judge,  found  that 


384  BANK   OF   KEW   SOUTH   WALES   V.   PIPER.  [CIIAP.  VL 

Evans  did  verbally  authorize  the  sale.  That  must  therefore  be  taken 
as  the  fact.  Two  other  questions  were  submitted  to  the  jury,  one 
bein<^-  "Did  Evans  entertain  an  honest  belief  that  the  plaintiff  was 
^Tuiltv'of  the  offence  charged  in  the  information,  and,  if  so,  was  his 
belief  founded  on  such  reasonable  grounds  as  would  lead  an  ordmardy 
prudent  and  cautious  man,  placed  in  the  position  of  Mr.  Evans,  to  the 
conclusion  that  the  plaintiff  was  probably  guilty  of  the  offence.'"  and 
the  otlier:  "  Did  Evans  honestly  believe  that  the  plaintiff,  having  sold 
and  disposed  of  certain  sheep  and  cattle,  covered  by  the  mortgage  to 
the  bank,  without  written  authority,  although  he  may  have  had  verbal 
authority,  was  guilty  of  an  indictable  offence  under  11  Vict.  No.  4,  s. 
7,  and,  "if  so,  was  his  belief  founded  on  such  reasonable  grounds  as 
would  'lead  a  fairly  cautious  and  prudent  man  in  the  position  of  Mr. 
Evans  to  entertain  such  belief?"  To  both  these  questions  the  jury 
answered  "  No." 

The  decision  of  the  question  whether  there  was  reasonable  or  proba- 
ble cause  for  the  charge  depends  upon  the  construction  of  s.  7.  It  was 
for  the  judge  to  decide  that  question,  as  a  matter  of  law,  upon  the  facts 
admitted  ov  found  by  the  jury.  /It  is  to  be  observed  that  in  the  first 
part  of  s.  7,  which  relates  to  the  sale  or  delivery  of  wool  that  is  under 
a  lien,  the  words  "with  a  view  to  defraud"  are  introduced  as  an  essen- 
tial quality  of  the  offence ;  but  in  the"l)arrof  the  section  which  relates 
to  the  sale  and  disposition  of  sheep  or  cattle  that  have  been  mortgaged, 
these  words  are  omitted.  This  cannot  be  considered  to  be  an  uninten- 
tional omission  unless  it  is  shewn  to  be  so  by  the  context  of  the  sec- 
tion. Their  Lordships  do  not  see  any  ground  for  construing  the 
section  as  if  the  words  "with  a  view  to  defraud"  had  been  inserted 
in  this  part  of  it.  They  cannot  alter  the  offence  created  by  the  statute 
by  the  introduction  of  words  which  tlie  Legislature  has  omitted. 

It  was  certainly  competent  to  the  Legislature  of  New  South  Wales 
to  define  a  crime  in  such  a  way  as  to  make  the  existence  of  any  state 
of  mind  of  the  perpetrator  immaterial,  and  the  question  is  whether  in 
the  case  of  the  sale  by  the  mortgagor  it  has  not  done  so.  The  enact- 
ment in  this  part  of  s.  7,  according  to  the  ordinary  meaning  of  the 
words,  appears  to  their  Lordships  to  provide  that  the  selling  without 
a  written  consent  shall  be  punished  as  if  it  were  a  fraud.  In  their 
Lordships'  opinion  neither  the  preamble  to  the  7th  section  nor  the 
enactment  that  the  persons  offending  shall  be  held  and  deemed  guilty 
of  an  indictable  fraud  justifies  the  opinion  that  an  intent  to  defraud 
must  be  implied,  or  that  it  is  open  to  the  person  charged  to  give  evi- 
dence to  rebut  the  presumption  of  fraud.  It  is  the  intention  of  the 
Legislature  to  make  a  sale  by  the  mortgagor  without  the  written  con- 
sent of  the  mortgagee  a  criminal  offence.  It  was  strongly  urged  by 
the  respondent's  counsel  that  in  order  to  the  constitution  of  a  crime, 
whether  common  law  or  statutory,  there  must  be  mens  rea  on  the  part 
of  the  accused,  and  that  he  may  avoid  conviction  by  shewing  that  such 


SECT.  I.]  BANK   OF   NEW   SOUTH   WALES   V.    PIPEE.  385 

niens  did  not  exist.  That  is  a  proposition  which  their  Lordships  do  not 
desire  to  dispute  ;  but  the  questions  whetlier  a  particular  intent  is  made 
an  element  of  the  statutory  crime,  and  when  that  is  not  the  case, 
whether  there  was  an  absence  of  me7is  rea  in  the  accused,  are  questions 
entirel}'  different,  and  depend  upon  different  considerations.  In  cases 
when  the  statute  requires  a  motive  to  be  proved  as  an  essential  element 
of  the  crime,  the  prosecution  must  fail  if  it  is  not  proved.  On  the 
other  hand,  the  absence  of  mens  rea  really  consists  in  an  honest  and 
reasonable  belief  entertained  by  the  accused  of  the  existence  of  facts 
which,  if  true,  would  make  the  act  charged  against  him  innocent.  The 
case  of  Sherras  v.  De  Rutzen,  [1895]  1  Q.  B.  918,  where  the  convic- 
tion of  a  publican  for  the  offence  of  selling  drink  to  a  constable  on 
duty  was  set  aside  by  the  court  because  the  accused  believed,  and  had 
reasonable  grounds  for  the  belief,  that  the  constable  was  not  on  duty  at 
the  time,  is  an  illustration  of  its  absence.  The  circumstances  of  the 
present  case  are  far  from  indicating  that  there  was  no  mens  rea  on  the 
part  of  the  respondent.  He  must  be  presumed  to  have  known  the  pro- 
visions of  s.  7,  whether  he  was  actually  acquainted  with  its  terms  or 
not.  Then  he  knew  that  he  had  not  the  written  consent  of  the  mort- 
gagee; and  that  knowledge  was  sufficient  to  make  him  aware  that  he 
was  offending  against  the  provisions  of  the  Act,  or,  in  other  words, 
was  sufficient  to  constitute  what  is  known  in  law  as  mens  rea.  If  the 
offence  of  which  the  offender  is  convicted  is  a  venial  one,  the  Act  puts 
it  within  the  discretion  of  the  judge  who  tries  the  case  to  award  a 
nominal  punishment.  At  the  end  of  the  defendants'  case  the  learned 
judge  ought  to  have  ruled  that,  there  being  no  written  consent,  there 
was  reasonable  and  probable  cause  for  making  the  charge  in  the  infor- 
mation, and  he  should  have  directed  the  ]uvy  to  find  a  verdict  for  the 
defendants.  The  questions  which  were  submitted  to  the  jurj'  were  un- 
necessarv,  and  ought  not  to  have  been  submitted.  Their  Lordships 
will  therefore  humbl}-  advise  Her  Majest}"  to  discharge  the  order  of  the 
Supreme  Court,  and  to  order  the  rule  to  enter  a  verdict  for  the  defen- 
dants to  be  made  absolute  with  costs.  The  respondent  will  pay  the 
costs  of  this  appeal. 


25 


386  MYERS  V.   STATE.  [CHAP.  VI. 

^1  o 

MYERS   V.  STATE. 
Supreme  Court  of  Errors  of  Connecticut.    1816. 

[Reported  1  Connecticut,  502.] 

This  was  au  information,  brought  before  tlie  count}'  court,  on  the 
statute,^  for  suffering  and  allowing  A.  M.  and  others  to  travel  in  a 
hacknej'-coach  owned  by  the  defendant,  from  New  Haven  to  Middle- 
town,  on  the  Sabbath-da}-.^ 

The  court  charged  the  juiy  that  it  was  incumbent  on  the  defendant, 
if  he  justified  his  act  as  a  case  of  necessit}'  or  charity,  to  prove  by  evi- 
dence on  the  trial  that  a  case  of  necessity  or  charity  existed,  and  that 
the  representation  of  the  passenger  to  the  driver  did  not  in  law  amount 
to  a  justification,  unless  the  same  was  proved  to  have  been  true  when 
made. 

Swift,  C.  J.^  The  letting  of  a  carriage  on  Sunday,  on  the  ground  of 
necessity  or  charit}',  is  not  prohibited  by  the  statute.  If  then  a  man 
acts  honestly  on  such  principle,  and  really  believes  that  the  case  of 
necessity  or  charit}'  exists,  he  is  not  criminal.  It  is  true,  a  man  ma}' 
be  deceived  and  imposed  upon  by  falsehood  and  misrepresentation ; 
yet  if  he  verily  believes  that  the  case  exists,  and  acts  on  that  ground, 
it  is  as  much  a  deed  of  charity  in  him,  if  the  fact  does  not  exist,  as  if 
it  does.  It  is  a  letting  of  the  carriage  as  a  matter  of  charity.  Unless 
this  construction  be  adopted,  a  man  may  be  convicted  of  a  crime  when 
he  had  no  intent  to  violate  the  law,  and  when  his  object  was  to  perforin 
a  deed  of  charity  conformable  to  law.  This  would  oppugn  the  maxim 
that  a  criminal  intent  is  essential  to  constitute  a  crime. 

It  is  true,  on  this  construction,  attempts  may  be  made  to  evade  the 
statute  ;  but  in  all  cases  it  will  be  a  question  of  fact  to  the  jury  whether 
the  party  acted  under  a  serious  impression  of  the  truth  of  the  repre- 
sentation made  to  him.  If  there  be  any  appearance  of  collusion,  any 
management  to  elude  the  statute,  then  the  excuse  ought  not  to  avail ; 
and, by  the  exercise  of  a  proper  discretion  the  violation  of  this  law 
may  commonly  be  prevented.  But  on  a  different  construction,  all 
works  of  charity  would  be  prevented.  If  a  man  is  bound  to  prove  not 
only  that  he  believed  it  to  be  an  act  of  charity,  but  that  the  facts  existed, 
otherwise  he  should  be  liable  to  be  punished,  there  would  be  very  great 
danger  in  performing  the  charity  which  the  statute  does  not  prohibit. 

The  court,  then,  in  charging  the  jury  that  the  facts  constituting  the 
act  of  charity  must  be  proved  to  have  existed,  committed  an  error. 

^  Oct.  Sess.  1814,  c.  17.  "No  proprietor  ...  of  any  coach  .  .  .  sliall  suffer  or  allow 
any  person  or  persons  to  travel,  except  from  necessity  or  charity,  in  such  carriage, 
within  this  state,  on  the  Sabbath  or  Lord's  day." 

2  The  statement  of  facts  has  been  abridged. 

^  The  concurring  opinion  of  Gould,  J.,  is  omitted. 


SECT.  I.]  BIRNEY   V.    STATE.  387 

They  should  have  directecl  the  jiny,  if  they  found  that  the  defendant 
had  reasonable  ground  to  believe  from  the  representation  made  to  him 
that  the  case  of  charity  existed,  and  that  he  honestly  acted  under  the 
impression  of  that  belief,  they  ought  to  find  him  not  guilty. 

I  am  of  opinion  there  is  error  in  the  judgment  of  the  county  court.^ 

an  - 


BIRNEY  V.  STATE. 
Supreme  Court  of  Ohio.    1837. 

[Reported  8  Ohio,  230.] 

Judge  Wood  ^  delivered  the  opinion  of  the  court. 

The  statute  upon  which  this  indictment  is  predicated  enacts  "that 
if  any  person  shall  harbor  or  secrete  any  black  or  mulatto  person,  the 
property  of  another,  the  person  so  offending  shall,  on  conviction  thereof, 
be  fined  any  sum  not  less  than  ten  nor  more  than  lift}-  dollars."  We  are 
first  called  to  consider  wliether,  under  this  enactment,  the  indictment 
is  sufHcient. 

It  is  required  that  every  indictment  shall  have  a  precise  and  sufficient 
certainty.  The  omission  of  a  word  of  substance  is  fatal.  (2  Haw.  P.  C. 
chap.  25,  s.  4.)  Here  the  plaintifT  in  error  is  charged  with  harboring 
and  secreting  a  certain  mulatto  girl  by  the  name  of  Matilda,  the  prop- 
erty of  L.  Larkin.  There  is  no  averment  that  the  plaintiff  in  error  knew 
the  facts  alleged,  that  Matilda  was  a  slave  and  the  property  of  L.  Lar- 
kin, or  of  any  other  person  ;  and  such  is  not  the  legal  inference,  in  a 
state  whose  constitution  declares  that  all  are  born  free  and  equal,  and 
that  there  shall  be  neither  slavery  nor  involuntar}'  servitude  within  its 
limits,  except  as  a  punishment  for  the  commission  of  crimes.  On  the 
contrary,  the  presumption  is  in  favor  of  freedom.  The  scienter,  or 
knowledge  of  the  plaintiff  in  error,  of  this  material  fact  was  an  ingredi- 
ent necessary  to  constitute  his  guilt.  This  knowledge  should  have  been 
averred  in  the  indictment,  and  proved  on  the  trial ;  for  without  such 
knowledge  the  act  charged  as  a  crime  was  innocent  in  its  character. 
We  know  of  no  case  where  positive  action  is  held  criminal,  unless  the 
intention  accompanies  the  act,  either  expressly  or  necessarily  inferred 
from  the  act  itself.  ^ '■  Ignorcmtia  facti  doth  excuse,  for  such  an  igno- 
rance, many  times,  makes  the  act  itself  morally  involuntary."  1  Hale's 
P.  C.  42. 

It  is  true  that  the  statute  upon  which  the  indictment  is  founded 
omits  the  scienter,  and  the  indictment  covers  all  the  facts  enumerated 
in  that  statute.  But  this  is  not  sufficient ;  it  cannot  be  assumed 
that  an  act  which,  independent   of  positive  enactment,  involves  no 

1  See  Bradley  v.  People,  8  Col.  599.  —  Ed 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


388  COMMONWEALTH   V,    MASH.  [CHAP.  VI. 

moral  wrong,  nay,  an  act  that  in  man}'  cases  would  be  higbly  praise- 
worthy, should  be  made  grievously  criminal,  wiien  performed  in  total 
unconsciousness  of  the  facts  that  infect  it  with  crime.  This  court  has 
determined  differently.  In  the  case  of  Anderson  against  the  State,  7 
Ohio  Rep.  part  1,  255,  tlie  plaintiff  in  error  was  indicted  for  uttering 
and  publishing  forged  certificate  of  deposit,  without  averring  his  knowl- 
edge of  such  forger}'.  The  statute  under  which  the  indictment  was 
found  does  not,  in  express  terms,  make  this  knowledge  a  constituent 
of  the  crime.  Nevertheless,  the  court  held  that  the  criminality  could 
not  exist  without  the  knowledge,  and  that  an  indictment  that  did  not 
aver  it  was  defective.  That  case  runs  upon  all  fours  with  this,  and  the 
further  investigation  of  the  principles  upon  which  it  is  based  confirms 
the  court  in  the  conviction  that  it  is  correct.  Tliis  judgment  must  be 
reversed  for  this  cause,  and  it  thus  becomes  unnecessary  to  decide  upon 
the  other  points,  so  laboriously  argued  for  the  plaintiff  in  error,  and  of 
a  character  too  important  in  their  bearing  upon  the  whole  country,  to 
be  adjudicated  upon  without  necessity.^ 


COMMONWEALTH   v.  MASH. 
Supreme  Judicial  Court  of  Massachusetts,    1844. 

[Reported  7  Metcalf,  472.] 

The  defendant  was  indicted,  on  the  Rev.  Sts.  c.  130,  s.  2,  for  marry- 
ing a  second  luisband  while  her  former  husband  was  living. 

At  the  trial  in  tlie  Municipal  Court,  at  August  term,  1843,  there  was 
evidence  tending  to  prove  that  the  defendant  was  married  to  Peter 
Mash  on  the  7th  of  December,  1834,  and  that  she  afterwards  cohabited 
with  him  until  about  the  10th  of  November,  1838,  when  he  left  home 
in  the  morning,  saying  he  should  return  to  breakfast,  and  was  not  after- 
wards heard  from  by  the  defendant  till  about  the  middle  of  May,  1842, 
when  he  returned ;  that  on  the  10th  of  April,  1842,  she  was  married, 
in  Boston,  by  a  clerg3'raan  of  competent  authority  to  solemnize  mar- 
riages in  this  Commonwealth,  to  William  M.  Barrett,  with  whom  she 
cohabited  in  Boston  until  she  heard  that  said  Peter  Mash  was  still  liv- 
ing, when  she  immediately  witlidrew  from  said  Barrett,  and  had  no 
intercourse  with  him  afterwards  ;  that  she  was  of  uniformly  good  char- 
acter and  virtuous  conduct,  and  that  she  honestly  believed,  at  the  time 
of  said  second  marriage,  that  said  Peter  Mash  was  dead  ;  that  during 
his  absence,  as  aforesaid,  she  made  many  inquiries,  and  was  unable  to 
obtain  any  information  concerning  him,  or  to  ascertain  whether  he  was 
or  was  not  alive. 

1  See  U.  S.  V.  Beaty,  Hempst.  489 ;  Lee  v.  Lacey,  1  Cranch  C.  C.  263  ;  conf.  State 
V.  B.  &  S.  Steam  Co.  13  Md.  181.  —  Ed. 


SECT. I,]  COMMONWEALTH   V.   MASH.  389 

The  counsel  for  the  defendant  moved  the  court  to  instruct  the  jmy 
that  if  they  believed  all  the  facts  which  the  aforesaid  evidence  tended 
to  prove,  she  was  entitled  to  an  acquittal.  But  the  court  refused  so  to 
instruct  the  jury,  and  instructed  them  that  the  defendant's  ignorance 
that  her  said  husband,  Peter  Mash,  was  alive,  and  her  honest  belief 
that  he  was  dead,  constituted  no  legal  defence. 

The  jury  found  the  defendant  guilty,  and  she  filed  exceptions  to  the 
instruction  of  the  court. 

Ilallett,  for  the  defendant. 

S.  B.  Parker,  for  the  Commonwealth. 

Shaw,  C.  J.  The  court  are  of  opinion  that  the  instruction  to  the  jury 
was  right.  The  rule  of  law  was  certainly  strongly  expressed  by  the 
judge,  no  doubt  in  consequence  of  the  terms  in  which  tlie  motion  of  tlie 
defendant's  counsel  was  expressed.  The  rule,  as  thus  laid  down,  in 
effect  was,  that  a  woman  whose  husband  suddenly  left  her  without 
notice,  and  saying,  when  he  went  out,  that  he  should  return  immediatel}-, 
and  who  is  absent  between  three  and  four  years,  though  she  have  made 
inquiry  after  him,  and  is  ignorant  of  his  being  alive,  but  honestly  believes 
him  to  be  dead,  if  she  marries  again  is  guilty  of  polygamy.  The  cor- 
rectness of  this  instruction  must  of  course  depend  upon  the  construction 
of  the  Rev.  Sts.  c.  130,  which  regulate  this  subject.  The  second  section 
imposes  a  penalty  upon  any  person  who,  having  a  former  husband  or  wife, 
shall  marry  another  person  ;  with  some  exceptions.  The  third  section 
excepts  from  the  operation  of  the  statute  "an}-  person  whose  husband 
or  wife  shall  have  been  continually  remaining  beyond  sea,  or  shall  have 
voluntarily  withdrawn  from  the  other,  and  remained  absent  for  the 
space  of  seven  years  together,  —  the  party  marrying  again  not  knowing 
the  other  to  be  living  within  that  time." 

It  appears  to  us  that  in  a  matter  of  this  importance,  so  essential  to 
the  peace  of  families  and  the  good  order  of  society,  it  was  not  the  inten- 
tion of  the  law  to  make  the  legality  of  a  second  marriage,  while  the 
former  husband  or  wife  is  in  fact  living,  depend  upon  ignorance  of  such 
absent  party's  being  alive,  or  even  upon  an  honest  belief  of  such  per- 
son's death.  Such  belief  might  arise  after  a  very  short  absence.  But 
it  appears  to  us  that  the  legislature  intended  to  prescribe  a  more  exact 
rule,  and  to  declare,  as  law,  that  no  one  should  have  a  right,  upon  sucii 
ignorance  that  the  other  party  is  alive,  or  even  upon  such  honest  belief 
of  his  death,  to  take  the  risk  of  marrying  again,  unless  such  belief  is 
confirmed  by  an  absence  of  seven  years,  with  ignorance  of  the  absent 
party's  being  alive  within  that  time.  It  is  analogous  to  other  provis- 
ions and  rules  of  law,  by  which  a  continued  absence  of  a  person  for 
seven  years,  without  being  heard  of,  will  constitute  a  presumption  of 
his  death.     Loring  v.  Steineman,  1  Met.  204  ;  Greenl.  on  Ev.  s.  41. 

We  are  strongly  confirmed  in  this  construction  of  the  statute,  and 
that  such  was  the  deliberate  expression  of  the  legislative  will,  by  refer- 
ence to  the  report  of  the  commissioners  for  revising  the  statutes.  It 
appears,  by  their  report  upon  this  provision,  that  they  prescribed  a  much 


390  COMMONWEALTH   V.  BOYNTON.  [CHAP.VL 

more  mitigated  rule,  and  proposed  to  extend  the  exception  "to  any 
person  whose  former  husband  or  wife,  having  been  absent  one  year  or 
more  at  the  time  of  such  second  marriage,  shall  be  believed  to  be  dead." 
This  proposal  was  stricken  out  by  the  committee  appointed  to  consider 
the  report  of  the  commissioners,  and  the  legislature  adopted  their 
amendment,  and  passed  the  law  as  it  stands,  without  the  proposed 
additional  exception.  This  shows  at  least  that  the  attention  of  the 
legislature  was  called  to  the  subject,  and  that  it  was  by  design,  and  not 
through  inadvertence,  tliat  the  law  was  framed  as  it  is. 

It  was  urged  in  the  argument  that  where  there  is  no  criminal  intent, 
there  can  be  no  guilt ;  and  if  the  former  husband  was  honestly  believed 
to  be  dead,  there  could  be  no  criminal  intent.  The  proposition  stated 
is  undoubtedly  correct  in  a  general  sense  ;  but  the  conclusion  drawn 
from  it  in  this  case  by  no  means  follows.  Whatever  one  voluntarily 
does,  he  of  course  intends  to  do.  If  the  statute  has  made  it  criminal 
to  do  any  act  under  particular  circumstances,  the  party  voluntarily  doing 
that  act  is  chargeable  with  the  criminal  intent  of  doing  it.  On  this 
subject  the  law  has  deemed  it  so  important  to  prohibit  the  crime  of 
polygamy,  and  found  it  so  difficult  to  prescribe  what  shall  be  sufficient 
evidence  .of  the  death  of  an  absent  person  to  warrant  a  belief  of  the 
fact,  and  as  the  same  vague  evidence  might  create  a  belief  in  one  mind 
and  not  in  another,  the  law  has  also  deemed  it  wise  to  fix  a  definite 
period  of  seven  years'  continued  absence,  without  knowledge  of  the  con- 
trary, to  warrant  a  belief  that  the  absent  person  is  actually  dead.  One, 
therefore,  who  marries  within  that  time,  if  the  other  party  be  actually 
living,  whether  the  fact  is  believed  or  not,  is  chargeable  with  that  crimi- 
nal intent,  by  purposely  doing  that  which  the  law  expressly  prohibits. 

Exceptions  overruled} 

[The  court  did  not  pass  sentence  on  the  defendant,  but  took  a  recog- 
nizance for  her  appearance  in  court  at  a  future  day.  On  the  9th  of  July, 
1844,  the  defendant  received  a  full  pardon  from  the  governor,  which 
she  brought  into  court  on  the  15th  of  said  July,  and  pleaded  the  same 
in  bar  of  sentence.     Whereupon  the  court  ordered  her  to  be  discharged.] 


COMMONWEALTH   v.   BOYNTON. 
Supreme  Judicial  Court  of  Massachusetts.     1861. 

[Reported  2  Allen,  160.] 

Indictment  against  the  defendant  for  being  a  common  seller  of 
intoxicating  hquor.  At  the  trial  in  the  Superior  Court,  after  certain 
sales  of  beer  had  been  testified  to,  the  defendant  offered  evidence  to 
prove  that  the  article  sold  was  not  intoxicating,  and  that,  if  it  were 

1  See,  contra,  Squire  v.  State,  46  Ind.  459.  —  Ed. 


SECT  I.]  COMMONWEALTH  V.    BOYNTON.  391 

SO,  he  had  no  reason  to  suppose  that  it  was  so,  and  bought  it  for  beer 
which  was  not  intoxicating,  and  did  not  believe  it  to  be  intoxicating ; 
but  Brigham,  J.,  rejected  the  latter  part  of  the  evidence  offered,  and 
instructed  the  jury  that  if  the  defendant  sold  liquor  which  was  intoxi- 
cating, as  alleged,  he  might  be  found  guilty,  although  he  did  not  know 
or  suppose  that  it  was  so.  The  defendant  was  convicted,  and  alleged 
exceptions. 

J.  Q.  A.  Griffin  for  the  defendant. 

Foster,  Attorney-General,  for  the  Commonwealth. 

Hoar,  J.  The  court  are  of  opinion  that  the  sale  of  intoxicating 
liquors  in  violation  of  the  statute  prohibition  is  not  one  of  those  cases 
in  which  it  is  necessary  to  allege  or  prove  that  the  person  charged 
with  the  offence  knew  the  illegal  character  of  his  act ;  or  in  which  a 
want  of  such  knowledge  would  avail  him  in  defence.  |If  the  defendant 
purposely  sold  the  liquor,  which  was  in  fact  intoxicating,  he  was  bound 
at  his  peril  to  ascertain  the  na^ture  of  the  article  whicli  he  sold.j  Where 
the  act  is  express  I}-  prohibited,  without  reference  to  the  intent  or  pur- 
pose, and  the  party  committing  it  was  under  no  obligation  to  act  in 
the  premises,  unless  he  knew  that  he  could  do  so  lawfully,  if  he  violates 
the  law  he  incurs  the  penalty.  |  The  salutar}'  rule  that  every  man  is 
conclusivel}'  presumed  to  know  tlie  law  is  sometimes  productive  of 
hardship  in  particular  cases.  /  And  the  hardship  is  no  greater  where 
the  law  imposes  the  duty  to  ascertain  a  fact.  /////' 

/It  could  hardly  be  doubted  that  it  would  constitute  no  defence  to  an 
indictment  for  obstructing  a  highwa}',  if  the  defendant  could  show 
that  he  mistook  the  boundaries  of  the  way,  and  honestly  supposed 
that  he  was  placing  the  obstruction  upon  his  own  land.  The  same 
principle  was  applied  in  the  case  of  bigamy,  Commonwealth  ('.  Mash, 
7  Met.  472  ;  and  in  the  case  of  adulter^',  Commonwealth  v.  Elwell,  2 
Met.  190.^ 

Exceptions  overruled} 

1  See  ace.  Com.  v.  Farren,  9  All.  489  ;  State  v.  Smith,  10  R.  T.  258  (spiling  adul- 
terated milk);  State  v.  Stanton,  37  Conn.  421  (selling  adulterated  liquor). 

Contra,  Teague  v.  State,  25  Tex.  App.  577  (selling  diseased  meat). 

On  the  same  principle  it  has  been  held  that  one  is  guilty  (under  a  statute  forbid- 
ding it)  for  allowing  a  minor  to  remain  in  his  billiard  saloon,  though  he  did  not  know 
that  the  youth  was  a  minor.  State  v.  Probasco,  62  la.  400.  (See,  contra,  Marshall  v. 
State,  49  Ala.  21 ;  Stern  v.  State,  53  Ga.  229.)  The  same  decision  has  been  reached 
in  a  prosecution  upon  a  statute  forbidding  the  sale  of  intoxicating  liquor  to  a  minor. 
McCutcheon  v.  People,  69  111.  601;  Ulrich  v.  Com.,  6  Bush,  400  ;  In  re  Carlson's 
License,  127  Pa.  330;  State  w.  Hartfiel,  24  Wis.  60.  (^qq,  contra,  Mulreed  y.  State, 
107  lud.  62.)  So  in  the  case  of  a  sale  to  a  common  drunkard.  Barnes  v.  State,  19 
Conn.  398.     (See,  contra,  Williams  v.  State,  48  Ind.  306). 

On  the  same  ground  one  is  held  guilty  under  a  statute  forbidding  the  sale  of  oleo- 
margarine, though  he  sold  oleomargarine  in  ignorance  of  its  real  nature.  State  v. 
Newton,  50  N.  J.  534 ;  Com.  v.    Weiss,  139  Pa.  247. 

See  also  U.  S.  v.  Leathers,  6  Sawy.  17;  People  v.  Harris,  29  Cal.  678  ;  State  v. 
Welch,  21  Minn.  22.  —  Ed. 


392  STATE  V.  CHICAGO,  MILWAUKEE  &  ST.  PAUL  KY.  [CHAP.  VI. 

STATE  V.  CHICAGO,  MILWAUKEE  &  ST.  PAUL  RAILWAY. 

Supreme  Court  of  Iowa.     1903. 

[Reported  122  la.  22.] 

Ladd,  J.^  The  defendant  admitted  the  failure  of  its  train  to  stop 
within  800  feet  and  more  than  200  feet  from  the  crossing,  and  inter- 
posed the  defence  that  the  engineer  in  charge  did  all  he  could  to  stop 
it,  but  that,  owing  to  the  brakes  not  working  in  the  usual  manner,  the 
momentum  of  the  train  carried  it  over  the  crossing.  The  court  sub- 
mitted the  case  to  the  jury  on  the  theory  that  the  burden  of  proof  was 
on  the  defendant,  in  order  to  exonerate  itself  from  liability,  to  show 
by  a  preponderance  of  evidence  that  the  failure  to  stop  was  not  due  to 
any  negligence  on  the  part  of  its  employees  in  operating  the  train,  or 
of  the  company  in  not  having  proper  appliances,  or  in  keeping  those 
had  in  proper  condition,  and  that  the  compan}-  might  be  liable  even 
though  the  engineer  was  not.  Possibl}'  that  should  have  been  the  law, 
but  it  was  not  so  written  by  the  legislature.  The  statute  in  question 
reads:  "  All  trains  run  upon  any  railroad  in  this  state  which  intersects 
or  crosses  an}'  other  railroad  on  the  same  level  shall  be  brought  to  a 
full  stop  at  a  distance  of  not  less  than  two  hundred  and  not  more  than 
eight  hundred  feet  from  the  point  of  intersection  or  crossing,  before 
such  intersection- or  crossing  is  passed,  except  as  otherwise  provided  in 
this  chapter.  Any  engineer  violating  the  provisions  of  this  section 
shall  forfeit  one  hundred  dollars  for  each  offence,  to  be  recovered  in  an 
action  in  the  name  of  the  State  for  the  benefit  of  the  school  fund,  and 
the  corporation  on  whose  road  the  offence  is  committed  shall  forfeit  the 
sum  of  two  hundred  dollars  for  each  offence,  to  be  recovered  in  like 
manner."  Section  2073,  Code.  The  latter  part  of  the  statute  is  purely 
penal  in  character,  with  the  evident  object  of  punishing  the  offender, 
rather  than  afford  a  remedy  for  the  wrongful  act.  In  this  respect  it 
differs  radically  from  provisions  awarding  damages  flowing  from  cer- 
tain acts,  such  as  the  setting  out  of  fire.  Its  meaning,  then,  cannot  be 
extended  beyond  the  terms  employed.  But  one  offence  is  denounced 
by  it,  and  that  is  the  omission  of  the  engineer  to  stop  the  train  as 
required.  The  first  sentence  commands  what  shall  be  done  —  defines 
a  duty  ;  the  first  clause  of  the  second  sentence  imposes  a  penalty  on 
any  engineer  for  "each  offence"  of  omitting  such  duty;  the  second 
clause  of  the  second  sentence  adds  a  penalty  against  the  corporation 
"on  whose  road  such  offence  is  committed."  To  what  do  these  last 
words  refer?     Manifestly,  to  the  offence  of  which  the  engineer  is  guilty. 

1  Part  of  the  opiuion  only  is  given.  —  Ed. 


SECT.  I.]  STATE  V.  CHICAGO,  MILWAUKEE  &  ST.  PAUL  RY.  393 

No  other  is  mentioned  in  the  section.  The  statute  cannot  be  fairly  read 
otherwise.  The  thought  seems  to  have  been  that,  as  the  engineer  con- 
trols the  train,  the  fault  in  failing  to  stop  as  required  is  priraaril}-  his, 
and  secondaril}-  that  of  the  company-  for  which  he  acts.  There  is  no 
ground  for  holding  that  the  company'  ma}'  be  liable  independent  of  any 
fault  of  the  engineer.  The  forfeiture  of  the  corporation  is  made  to 
depend  upon  his  guilt  of  the  offence  defined,  and  upon  that  onl}-. 

As  the  statute  is  purely  penal  in  character,  it  ought  not  to  be 
construed  as  fixing  an  absolute  liabilit}-.  A  failure  to  stop  may  some- 
times occur,  notwithstanding  the  utmost  efforts  of  the  engineer.  In 
such  even  this  omission  cannot  be  regarded  as  unlawful.  The  law 
never  designs  the  infliction  of  punishment  where  there  is  no  wrong. 
The  necessity  of  intent  of  purpose  is  always  to  be  implied  in  such 
statutes.  An  actual  and  conscious  infraction  of  dut}-  is  contemplated. 
The  maxim,  '■'■Actus  non  faclt  reinn  nisi  ■tneiis  sit  rea,"  obtains  in  all 
penal  statutes  unless  excluded  b}'  their  language.  See  Regina  v. 
Tolson,  23  Q.  B.  Div^  168,  where  it  was  said,  "  Crime  is  not  com- 
mitted where  the  mind  of  the  person  committing  the  act  is  innocent." 
See,  also,  Sutherland  on  Statutory  Construction,  section  354  et  seq. 
No  doubt  many  statutes  impose  a  penalt}'  regardless  of  the  intention 
of  those  who  violate  them,  but  these  ordinarily  relate  to  matters  which 
ma}'  be  known  definitely  in  advance.  In  such  cases  commission  of  the 
offence  is  due  to  neglect  or  inadvertence.  But  even  then  it  can  hardly 
be  supposed  the  offender  would  be  held  if  the  act  were  committed  when 
in  a  state  of  somnambulism  or  insanity.  As  it  is  to  be  assumed  in  the 
exercise  of  the  proper  care  that  the  engineer  has  control  of  his  train  at 
all  times,  proof  of  the  mere  failure  to  stop  makes  out  a  prima  facie 
case.  But  this  was  open  to  explanation,  and  if,  from  that  given,  it 
was  made  to  appear  that  he  made  proper  preparation,  and  intended 
to  stop,  and  put  forth  every  reasonable  effort  to  do  so,  he  should  be 
exonerated.     See  Furley  v.  Ry.  Co.,  90  Iowa,  146. 


394 


EEGINA  V.   SHAEPE.  [CHAP.  VI. 


SECTION  II. 

The  mens  rea  :  Intent. 

REGINA^;.   SHARPE. 
Crown  Case  Reserved.     1857. 

[Reported  7  Cox  C.  C.  214.] 

The  defendant  was  tried  at  Hertford,  before  Erie,  J.,  who  reserved 

the  following  case :  —  ,     ,    ^     ,       ,  ^      i     *. 

The  indictment  in  the  first  count  charged  that  the  defendant,  a 
certain  burial-ground  belonging  to  a  certain  meeting-house  of  a  con- 
gre^nation  of  Protestants  dissenting  from  the  Church  of  England, 
unlawfully  did  breali  and  enter,  and  a  certain  grave  there,  in  which 
the  body  of  one  Louisa  Sharpe,  had  before  then  been  interred,  with 
force  and  arms,  unlawfully,  wilfully,  and  indecently  did  dig  open, 
and  the  said  body  of  the  said  Louisa  Sharpe  out  of  the  said  grave, 
unlawfully,  wilfully,  and  indecently  did  take  and  carry  away. 

And  there  were  other  counts,  varying  the  charge,  which  may  be 
resorted  to  if  necessary.  The  evidence  was,  that  the  defendant's 
family  had  belonged  to  a  congregation  of  dissenters  at  Hitchin,  and 
his  mother,  with  some  other  of  his  relations,  had  been  buried  in  one 
grave  in  the  burying-ground  of  that  congregation  there,  with  the  con- 
sent of  those  who  were  interested.  That  the  father  of  the  defendant 
had  recently  died.  That  the  defendant  prevailed  on  the  wife  of  the 
person  to  whom  the  key  of  the  burying-ground  was  intrusted  to  allow 
him  to  cause  the  grave  above  mentioned  to  be  opened,  under  the  pre- 
text that  he  wished  to  bury  his  father  in  the  same  grave,  and,  in  order 
thereto,  to  examine  whether  the  size  of  the  grave  would  admit  his 
father's  coffin.  That  he  caused  the  coffins  of  his  stepmother  and  two 
children  to  be  taken  out,  and  so  came  to  the  coffin  of  his  mother, 
which  was  AUider  them,  and  was  much  decomposed,  and  that  he 
caused  the  remains  of  this  coffin,  with  the  corpse  therein,  to  be  placed 
is  no  authority  for  saying  that  relationship  can  justify  the  taking  of  a 
corpse  from  the  grave  where  it  had  been  laid.  We  have  been  unwill- 
ing to  affirm  the  conviction  on  account  of  our  respect  for  the  motives 
of°the  defendant ;  but  we  have  felt  it  our  duty  to  do  so  rather  than 
lay  down  a  rule  whicli  might  lessen  the  only  protection  the  law  affords 
in  respect  of  the  burials  of  dissenters.  The  result  is,  the  conviction 
will  stand,  and,  as  the  judge  states,  the  sentence  should  be  a  nominal 
fine  of  one  shilling.  Conviction  ajinned.^ 

1  See  Eex  v.  Ogden,  6  C.  &  P.  631.  —  Ed. 


SECT.  II.]  EEGIXA   V.   PRINCE.  395 

KEGINA   V.  PRINCE. 

Court  for  Crowx  Cases  Reserved.     1875. 

[Reported  L.  R.  2  C.  C.  154.] 

Case  stated  by  Denman,  J. 

At  the  assizes  for  Surrey,  held  at  Kingston-upon-Thames,  on  the 
24th  of  March  last,  Henry  Prince  was  tried  upon  the  charge  of  having 
unlawfully  taken  one  Annie  Phillips,  an  unmarried  girl,  being  under 
the  age  of  sixteen  years,  out  of  the  possession  and  against  the  will  of 
her  father.  The  indictment  was  framed  under  s.  55  of  24  &  25  Vict, 
c.  100. 

He  was  found  guilt\\ 

All  the  facts  necessar}'  to  support  a  conviction  existed,  unless  the 
following  facts  constituted  a  defence.  The  girl  Annie  Phillips,  though 
proved  by  her  father  to  be  fourteen  years  old  on  the  6th  of  April  fol- 
lowing, looked  very  much  older  than  sixteen,  and  the  jury  found  upon 
reasonable  evidence  that  before  the  defendant  took  her  away  she  had 
told  him  that  she  was  eighteen,  and  that  the  defendant  bona  fide 
believed  that  statement,  and  that  such  belief  was  reasonable. 

If  the  Court  should  be  of  opinion  that  under  these  circumstances  a 
conviction  was  riglit,  the  defendant  was  to  appear  for  judgment  at  the 
next  assizes  for  Surrey  ;  otherwise  the  conviction  was  to  be  quashed : 
see  Reg.  v.  Robins,  C.  &  K.  546,  and  Reg.  v.  Olifier,  10  Cox,  Cr.  C. 
402. 

Brett,  J.^  .  .  .  It  would  seem  that  there  must  be  proof  to  satisfy  a 
jury  ultimately  that  there  was  a  criminal  mind,  or  mens  rea,  in  every 
offence  really  charged  as  a  crime.  In  some  enactments,  or  common 
law  maxims  of  crime,  and  therefore  in  the  indictments  charging  the 
committal  of  those  crimes,  the  name  of  the  crime  imports  that  a  ttiens 
rea  must  be  proved,  as  in  murder,  burglary,  etc.  In  some  the  mens  rea 
is  contained  in  the  specific  enactments  as  to  the  intent  which  is  made  a 
part  of  the  crime.  lu  some  the  word  "  feloniously  "  is  used,  and  in 
such  cases  it  has  never  been  doubted  but  that  a  felonious  mind  must 
ultimately  be  found  by  the  jury.  In  enactments  in  a  similar  form,  but 
in  which  the  prohibited  acts  are  to  be  classed  as  a  misdemeanor,  the 
word  "■  unlawfully  "  is  used  instead  of  the  word  "  feloniously."  What 
reason  is  there  why,  in  like  mannei',  a  criminal  mind,  or  mens  rea,  must 
not  ultimately  be  found  by  the  jury  in  order  to  justify  a  conviction,  the 
distinction  always  being  observed,  that  in  some  cases  the  proof  of  the 
committal  of  the  acts  may  prima  facie,  either  by  reason  of  their  own 
nature,  or  by  reason  of  the  form  of  the  statute,  import  the  proof  of 
the  mens  rea  f  But  even  in  those  cases  it  is  open  to  the  prisoner  to 
rebut  the  prima  facie  evidence,  so  that  if,  in  the  end,  the  jury  are 
satisfied  that  there  was  no  criminal  mind,  or  mens  rea,  tliere  cannot  be 

1  Part  of  this  dissenting  opinion  is  omitted.  —  Ed. 


396  EEGINA   V.   PRINCE.  [CHAP.  VL 

a  conviction  in  England  for  that  which  is  by  the  law  considered  to  be  a 
crime. 

There  are  enactments  which  by  their  form  seem  to  constitute  the  pro- 
hibited acts  into  crimes,  and  yet  by  virtue  of  which  enactments  the 
defendants  charged  with  the  committal  of  the  prohibited  acts  have  been 
convicted  in  the  absence  of  the  knowledge  or  intention  supposed  neces- 
sarv  to  constitute  a  me7is  rea.  Such  are  the  cases  of  trespass  in  pursuit 
of  game,  or  of  piracy  of  literary  or  dramatic  works,  or  of  the  statutes 
passed  to  protect  the  revenue.  But  the  decisions  have  been  based  upon 
the  judicial  declaration  that  the  enactments  do  not  constitute  the  pro- 
hibited acts  into  crime,  or  offences  against  the  Crown,  but  only  prohibit 
them  for  the  purpose  of  protecting  the  individual  interest  of  individual 
persons,  or  of  the  revenue.  Thus,  in  Lee  v.  Simpson,  3  C.  B.  871  ;  15 
L.  J.  (C.  P.)  105,  in  an  action  for  penalties  for  the  representation  of  a 
dramatic  piece,  it  was  held  that  it  was  not  necessary  to  shew  that  the  de- 
fendant knowingly  invaded  the  plaintiff's  right.  But  the  reason  of  the 
decision  given  by  Wilde,  C.  J.,  3  C.  B.  at  p.  883,  is:  "Tlie  object  of 
the  legislature  was  to  protect  authors  against  the  piratical  invasion 
of  their  rights.  In  the  sense  of  having  committed  an  offence  against 
the  Act,  of  having  done  a  thing  that  is  prohibited,  the  defendant  is  an 
offender.  But  the  plaintiff's  rights  do  not  depend  upon  the  innocence 
or  guilt  of  the  defendant."  So  the  decision  in  Morden  v.  Porter,  7  C. 
B.  (X.  S.)  631 ;  29  L.  J.  (M.  C.)  218,  seems  to  be  made  to  turn  upon 
the  view  that  the  statute  was  passed  in  order  to  protect  the  individual 
property  of  the  landlord  in  game  reserved  to  him  by  his  lease  against 
that  which  is  made  a  statutory  trespass  against  him,  although  his  land 
is  in  the  occupation  of  his  tenant.  There  are  other  cases  in  which  the 
ground  of  decision  is  that  specific  evidence  of  knowledge  or  intention 
need  not  be  given,  because  the  nature  of  the  prohibited  acts  is  such  that, 
if  done,  they  must  draw  with  them  the  inference  that  they  were  done 
with  the  criminal  mind  or  intent  which  is  a  part  of  ever}'  crime.  Such 
is  the  case  of  the  possession  and  distribution  of  obscene  books.  If  a 
man  possesses  them,  and  distributes  them,  it  is  a  necessary  inference 
that  he  must  have  intended  that  their  first  effect  must  be  that  which  is 
prohibited  b}'  statute,  and  tliat  he  cannot  protect  himself  bj-  shewing 
that  his  ultimate  object  or  secondar}-  intent  was  not  immoral :  Reg.  v. 
Hicklin,  Law  Rep.  3  Q.  B.  360.  This  and  similar  decisions  go  rather 
to  sbew  what  is  rnens  i'ea,  than  to  shew  whether  there  can  or  cannot  be 
conviction  for  crime  proper  without  mens  rea. 

As  to  the  last  question,  it  has  become  very  necessary  to  examine  the 
authorities.  In  Blackstone's  Commentaries,  by  Stephen,  2d  ed.,  vol. 
iv..  Book  6,  Of  Crimes,  p.  98.  <'  And  as  a  vicious  will  without  a  vicious 
act  is  no  civil  crime,  so,  on  the  other  hand,  an  unwarrantable  act 
without  a  vicious  will  is  no  crime  at  all.  So  that,  to  constitute  a  crime 
against  human  laws,  there  must  be  first  a  vicious  will,  and  secondly  an 
unlawful  act  consequent  upon  such  vicious  will.  Now  there  are  three 
cases  in  which  the  will  does  not  join  with  the  act :  1.    Where  there  is  a 


SECT.  11.]  EEGINA.   V.    PKIKCE.  397 

defect  of  unclGrstanding,  etc.;  2.  Where  there  is  understanding  and 
will  sufficient  residing  in  the  part^',  but  not  called  forth  and  exerted  at 
the  time  of  the  action  done,  which  is  the  case  of  all  offences  committed 
by  chance  or  ignorance.  Here  the  will  sits  neuter,  and  neither  concurs 
with  the  act  nor  disagrees  to  it."  And  at  p.  105  :  "  Ignorance  or  mis- 
take is  another  defect  of  will,  when  a  man,  intending  to  do  a  lawful  act, 
does  that  which  is  unlawful;  for  here,  the  deed  and  the  will  acting 
separately,  there  is  not  that  conjunction  between  them  which  is  neces- 
sary to  form  a  criminal  act.  But  this  must  be  an  ignorance  or  mistake 
in  fact,  and  not  an  error  in  point  of  law.  As  if  a  man,  intending  to 
kill  a  thief  or  housebreaker  in  his  own  house,  by  mistake  kills  one  of 
his  famil}',  this  is  no  criminal  action;  but  if  a  man  thinks  he  has  a  right 
to  kill  a  person  excommunicated  or  outlawed  wherever  he  meets  him, 
and  does  so,  this  is  wilful  murder."  In  Fowler  v.  Padget,  7  T.  R.  509, 
the  jury  found  that  they  thought  the  intent  of  the  plaintiff  in  going  to 
London  was  laudable  ;  that  he  had  no  intent  to  defraud  or  delay  his 
creditors,  but  that  delay  did  actually  happen  to  some  creditors.  Lord 
Kenyon  said:  "  Bankruptcy  is  considered  as  a  crime,  and  the  bankrupt 
in  the  old  laws  is  called  an  offender  ;  but  it  is  a  principle  of  natural 
justice  and  of  our  laws  that  actus  non  facit  ream  visi  mens  sit  rea. 
The  intent  and  the  act  must  both  concur  to  constitute  the  crime." 
And  again  :  "  I  would  adopt  any  construction  of  the  statute  that  the 
words  will  bear,  in  order  to  avoid  such  monstrous  consequences  as 
would  manifestly  ensue  from  the  construction  contended  for." 

In  Hearne  v.  Garton,  2  E.  &  PI  16  ;  28  L.  J.  (M.  C.)  216,  the  respond- 
ents were  charged  upon  an  information  for  having  sent  oil  of  vitriol  by 
the  Great  Western  Railway  without  marking  or  stating  the  nature  of 
the  goods.  By  20  &  21  Vict.  c.  43,  s.  168,  "  every  person  who  shall 
send  or  cause  to  be  sent  by  the  said  railway  any  oil  of  vitriol,  shall  dis- 
tinctly mark  or  state  the  nature  of  such  goods,  etc.,  on  pain  of  forfeit- 
ing, etc."  By  s.  206  such  penalty  is  recoverable  in  a  summary  way 
before  justices,  with  power  to  imprison,  etc.  The  respondents  had  in 
fact  sent  oil  of  vitriol  unmarked.  But  the  justices  found  that  there  was 
no  guilty  knowledge,  but,  on  the  contrary,  the  respondents  acted  under 
the  full  belief  that  the  goods  were  correctly  described,  and  had  pre- 
viously used  all  proper  diligence  to  inform  themselves  of  the  fact. 
They  refused  to  convict.  It  must  be  observed  that  in  that  case,  as  in 
the  present,  the  respondents  did  in  fact  the  prohibited  acts,  and  thnt 
in  that  case  as  in  this,  it  was  found,  as  the  ultimate  proof,  that  they 
were  deceived  into  the  belief  of  a  different  and  non-criminal  state  of 
facts,  and  had  used  all  proper  diligence.  The  case  is  stronger,  per- 
haps, than  the  present  by  reason  of  the  word  "unlawfully''  being 
absent  from  that  statute.  The  Court  upheld  the  decision  of  the  magis- 
trates, holding  that  the  statute  made  the  doing  of  the  prohibited  acts  a 
crime,  and  therefore  that  there  must  be  a  criminal  mind,  which  there 
was  not.  "As  to  the  latter  reason  I  think  the  justices  were  perfectly 
right :  actus  non  facit  reum  nisi  mens  sit  rea.    The  act  with  which  the 


398  REGINA   V.   PRINCE.  [CIIAP.  VI. 

respondents  were  charged  is  an  offence  created  by  statute,  and  for 
which  the  person  committing  it  is  liable  to  a  penalty  or  to  imprison- 
ment ;  not  only  was  there  no  proof  of  guilty  knowledge  on  the  part  of 
the  respondents,  but  the  presumption  of  a  guilty  knowledge  on  their  part, 
if  any  could  be  raised,  was  rebutted  by  the  proof  that  a  fraud  had  been 
practised  on  them.  I  am  inclined  to  think  they  were  civilly  liable  : " 
Lord  Campbell,  C  J.  "I  was  inclined  to  think  at  first,  that  the  pro- 
vision was  merely  protective  ;  but  if  it  create  a  criminal  offence,  which 
I  am  not  prepared  to  deny,  then  the  mere  sending  by  the  respondents, 
without  a  guilty  knowledge  on  their  part,  would  not  render  them  crimi- 
nally liable,  although,  as  they  took  Nicholas's  word  for  the  contents  of 
the  parcel,  they  would  be  civilly  liable :  "  Erle,  J. 

In  Taylor  v.  Newman,  4  B.  &  S.  89  ;  32  L.  J.  (M.  C.)  186,  the  infor- 
mation was  under  24  &  25  Vict.  c.  96,  s.  23:  "  AYhosoever  shall  un- 
lawfully and  wilfully  kill,  etc.,  any  pigeon,  etc,"  The  appellant  shot 
pigeons  on  his  farm  belonging  to  a  neigl:bor.  The  justices  convicted 
on  the  ground  that  the  appellant  was  not  justified  by  law  in  killing  the 
pigeons,  and,  therefore,  that  the  killing  was  unlawful.  In  other  words 
they  held  that  the  only  meaning  of  "unlawfully"  in  the  statute  was 
"  without  legal  justification."  The  Court  set  aside  the  conviction, 
"I  think  that  the  statute  was  not  intended  to  apply  to  a  case  in  which 
there  was  no  guilty  mind,  and  where  the  act  was  done  by  a  person 
under  the  honest  belief  that  he  was  exercising  a  right."    Mellor,  J. 

In  Buckmaster  v.  Reynolds,  13  C.  B.  (N.  S.)  62,  an  information  was 
laid  for  unlawfully,  by  a  certain  contrivance,  attempting  to  obstruct  or 
prevent  the  purposes  of  an  election  at  a  vestr}'.  The  evidence  was 
that  the  defendant  did  obstruct  the  election  because  he  forced  himself 
and  others  into  the  room  before  eight  o'clock,  believing  that  eight  o'clock 
was  passed.  The  question  asked  was,  whether  an  intentional  obstruc- 
tion by  actual  violence  is  an  offence,  etc.  This  question  the  Court 
answered  in  the  affirmative,  so  that  there,  as  here,  the  defendant  had 
done  the  prohibited  acts.  But  Erle,  J.,  continued  :  "  I  accompan}'  this 
statement  (i.  e.  the  answer  to  the  question)  b}-  a  statement  that  upon 
the  facts  set  forth  I  am  unable  to  sec  that  the  magistrate  has  come  to 
a  wrong  conclusion,  A  man  cannot  be  said  to  be  guilty  of  a  delict 
unless  to  some  extent  his  mind  goes  with  the  act.  Here  it  seems  that 
the  respondent  acted  in  the  belief  that  he  had  a  right  to  enter  the  room, 
and  that  he  had  no  intention  to  do  a  wrongful  act." 

In  Reg.  V.  Hibbert,  Law  Rep.  1  C,  C,  184,  the  prisoner  was  indicted 
under  the  section  now  in  question.  The  girl,  who  lived  with  her  father 
and  mother,  left  her  home  in  compan}'  with  another  girl  to  go  to  a 
Sunday  school.  The  prisoner  met  the  two  girls  and  induced  them  to 
go  to  Manchestei*.  At  Manchester  he  took  them  to  a  public  house  and 
there  seduced  the  girl  in  question,  who  was  under  sixteen.  The  prisoner 
made  no  inquiry  and  did  not  know  who  the  girl  was,  or  whether  she 
had  a  father  or  mother  living  or  not,  but  he  had  no  reason  to,  and  did 
not  believe  that  she  was  a  girl  of  the  town.    The  jury  found  the  prisoner 


SECT.  II.]  EEGINA   V.   PRINCE.  399 

ofuilty,  and  Lush,  J.,  reserved  the  case.  In  the  Court  of  Criminal 
Appeal,  BoviLLL,  C.  J.,  Channell-  and  Pigott,  BB.,  Byles  and  Lush,  JJ., 
quashed  the  conviction.  Bovill,  C.  J. :  "  In  the  present  case  there  is 
no  statement  of  any  finding  of  fact  that  the  prisoner  knew,  or  had 
reason  to  believe  that  the  girl  was  under  the  lawful  care  or  charge  of 
her  father  or  mother,  or  any  other  person.  In  the  absence  of  any  find- 
ing of  fact  on  this  point  the  conviction  cannot  be  supported."  Tliis 
case  was  founded  on  Reg.  v.  Green,  3  F.  &  F.  274,  before  Martin,  B. 
The  girl  was  under  fourteen,  and  lived  with  her  father,  a  fisherman,  at 
Southend.  The  prisoners  saw  her  in  the  street  by  herself  and  induced 
her  to  go  with  them.  They  took  her  to  a  lonely  house,  and  there  Green 
had  criminal  intercourse  with  her.  Martin,  B.,  directed  an  acquittal : 
"  There  must,  he  said,  be  a  taking  out  of  the  possession  of  the  father. 
Here  the  prisoners  picked  up  the  girl  in  the  street,  and  for  anything 
that  appeared,  they  might  not  have  known  that  the  girl  had  a  father. 
The  girl  was  not  taken  out  of  the  possession  of  an}'  one.  The  prison- 
ers, no  doubt,  had  done  a  very  immoral  act,  but  the  question  was  whether 
they  had  committed  an  illegal  act.  The  criminal  law  ought  not  to  be 
strained  to  meet  a  case  which  did  not  come  within  it.  The  act  of  the 
prisoners  was  scandalous,  but  it  was  not  any  legal  offence." 

In  each  of  these  cases  the  girl  was  surely  in  the  legal  possession  of 
her  father.  The  fact  of  her  being  in  the  street  at  the  time  could  not 
possibly  prevent  her  from  being  in  the  legal  possession  of  her  father. 
Everything,  therefore,  prohibited  was  done  by  the  prisoner  in  fact.  But 
in  each  case  the  ignorance  of  facts  was  held  to  prevent  the  case  from 
being  the  crime  to  be  punished. 

In  Reg.  V.  Tinckler,  1  F.  &  F.  513,  in  a  case  under  this  section, 
CocKBURN,  C.  J.,  charged  the  jury  thus:  '•  It  was  clear  the  prisoner 
had  no  right  to  act  as  he  had  done  in  taking  the  child  out  of  Mrs. 
Barnes's  custody.  But  inasmuch  as  no  improper  motive  was  suggested 
on  the  part  of  the  prosecution,  it  might  very  well  be  concluded  that  the 
prisoner  wished  the  child  to  live  with  him,  and  that  he  meant  to  dis- 
charge the  promise  which  he  alleged  he  had  made  to  her  father,  and 
that  he  did  not  suppose  he  was  breaking  the  law  when  he  took  the  child 
away.  This  being  a  criminal  prosecution,  if  the  jury  should  take  this 
view  of  the  case,  and  be  of  opinion  that  the  prisoner  honestly  believed 
that  he  had  a  right  to  the  custody  of  the  child,  then,  although  the  prisoner 
was  not  legally  justified,  he  would  be  entitled  to  an  acquittal."  The 
jury  found  the  prisoner  not  guilty.  / 

in  Reg.  V.  Sleep,  8  Cox,  Cr.  C.  472,  the  prisoner  had  possession  of 
government  stores,  some  of  which  were  marked  with  tlie  broad  arrow. 
The  jury,  in  answer  to  the  question  whether  the  prisoner  knew  that  tlie 
copper,  or  any  part  of  it  was  marked,  answered,  "  AVe  have  not  suffi- 
cient evidence  before  us  to  shew  that  he  knew  it."  The  Court  of 
Criminal  Appeal  held  that  the  prisoner  could  not  be  convicted.  Cock- 
burn,  C.  J. :  Actus  11011  facit  reum  nisi  mens  sit  rea  is  the  foundation 
of  all  criminal  procedure.     The  ordinary  principle  that  there  must  be  a 


400 


EEGINA  V.   PKINCE.  [CHAP.  YI. 


guilty  mind  to  constitute  a  guilty  act  applies  to  this  case,  and  must  be 
rinported  into  this  statute,  as  it  was  held  in  Reg.  v.  Cohen,  8  Cox,  Cr. 
C.  41,  where  this  conclusion  of  the  law  was  stated  by  Hill,  J.,  with  his 
usual  clearness  and  power.  It  is  true  that  the  statute  says  nothing 
about  knowledge,  but  this  must  be  imported  into  the  statute."  Pol- 
lock, C.  B.,  Martix,  B.,  Crompton  and  Willes,  JJ.,  agreed. 

In  the  cases  of  Reg.  v.  Robins,  1  C.  &  K.  456,  and  Reg.  v.  Olifier,  10 
Cox,  Cr.  C.  402,  there  was  hardly  such  evidence  as  was  given  in  this 
case'  as  to  the  prisoner  being  deceived  as  to  the  age  of  the  girl,  and 
having  reasonable  grounds  to  believe  the  deception,  and  there  cer- 
tainly were  no  findings  by  the  jury  equivalent  to  the  findings  in  this 

cnsG* 

In  Reg.  V.  Forbes  and  Webb,  10  Cox,  Cr.  C.  362,  although  the 
policeman  was  in  plain  clothes,  the  prisoners  certainly  had  strong 
ground  to  suspect,  if  not  to  believe,  that  he  was  a  policeman ;  for  tlie 
case  states  that  they  repeatedly  called  out  to  rescue  the  boy  and  pitch 
into  the  constable. 

Upon  all  of  the  cases  I  think  it  is  proved  that  there  can  be  no  con- 
viction for  crime  in  England  in  the  absence  of  a  criminal  mind  or 
mens  rea. 

Then  comes  the  question,  what  is  the  true  meaning  of  the  phrase? 
I  do  not  doubt  that  it  exists  where  the  prisoner  knowingly  does  acts 
which  would  constitute  a  crime  if  the  result  were  as  he  anticipated,  but 
!n  which  the  result  may  not  improbably  end  by  bringing  the  offence 
within  a  more  serious  class  of  crime.  As  if  a  man  strikes  with  a  dan- 
gerous weapon,  with  intent  to  do  grievous  bodily  harm,  and  kills,  the 
result  makes  the  crime  murder.  The  prisoner  has  run  the  risk.  So,  if 
a  prisoner  do  the  prohibited  acts,  without  caring  to  consider  what  the 
truth  is  as  to  facts  —  as  if  a  prisoner  were  to  abduct  a  girl  under  sixteen 
without  caring  to  consider  whether  she  was  in  truth  under  sixteen  —  he 
runs  the  risk.  So  if  he  without  abduction  defiles  a  girl  who  is  in  fact 
under  ten  years  old,  with  a  belief  that  she  is  between  ten  and  twelve. 
If  the  facts  were  as  he  believed,  he  would  be  committing  the  lesser  crime. 
Then  he  runs  the  risk  of  his  crime  resulting  in  the  greater  crime.  It  is 
clear  that  ignorance  of  the  law  does  not  excuse.  It  seems  to  me  to  fol- 
low that  the  maxim  as  to  meiis  rea  applies  whenever  the  facts  which 
are  present  to  the  prisoner's  mind,  and  which  he  has  reasonable  ground 
to  believe,  and  does  believe  to  be  the  facts,  would,  if  true,  make  his 
acts  no  criminal  offence  at  all. 

It  may  be  true  to  say  that  the  meaning  of  the  word  "  unlawfully  "  is 
that  the  prohibited  acts  be  done  without  justification  or  excuse ;  I,  of 
course,  agree  that  if  there  be  a  legal  justification  there  can  be  no  crime  ; 
but  I  come  to  the  conclusion  that  a  mistake  of  facts,  on  reasonable 
grounds,  to  the  extent  that  if  the  facts  were  as  believed,  the  acts  of  the 
prisoner  would  make  him  guilty  of  no  criminal  offence  at  all,  is  an 
excuse,  and  that  such  excuse  is  implied  in  every  criminal  charge  and 
every  criminal  enactment  in  England.     I  agree  with  Lord  Kenyon 


I 


SECT.  II.]  EEGINA  V.   PRINCE.  401 

that  "  such  is  our  law,"  and  with  Cockburn,  C.  J.,  that  "  such  is  the 
foundation  of  all  criminal  procedure." 

Bramwell,  B.^  The  question  in  this  case  depends  on  the  construc- 
tion of  the  statute  under  which  tlie  prisoner  is  indicted.  That  enacts 
that  "  whosoever  shall  unlawfully  take  any  unmarried  girl  under  the 
age  of  sixteen  out  of  the  possession  and  against  the  will  of  her  father 
or  mother,  or  any  other  person  having  the  lawful  care  or  charge  of  her, 
shall  be  guilty  of  a  misdemeanor."  Now  the  word  "unlawfully  "  means 
"not  lawfully,"  "otherwise  than  lawfully,"  "without  lawful  cause," 
such  as  would  exist,  for  instance,  on  a  taking  by  a  police  officer  on  a 
charge  of  felony,  or  a  taking  by  a  father  of  his  child  from  his  school. 
The  statute,  therefore,  may  be  read  thus :  "  Whosoever  shall  take,  etc., 
without  lawful  cause."  Now  the  prisoner  had  no  such  cause,  and  con- 
sequently, except  in  so  far  as  it  helps  the  construction  of  the  statute, 
the  word  "  unlawfully  "  may  in  the  present  case  be  left  out,  and  then 
the  question  is,  has  the  prisoner  taken  an  unmarried  girl  under  the  age 
of  sixteen  out  of  the  possession  of  and  against  the  will  of  her  father?  In 
fact,  he  has;  but  it  is  said  not  within  the  meaning  of  the  statute,  and 
that  that  must  be  read  as  though  the  word  "  knowingly,"  or  some  equiv- 
alent word,  was  in  ;  and  the  reason  given  is,  that  as  a  rule  the  mens 
rea  is  necessary  to  make  any  act  a  crime  or  offence,  and  that  if  the  facts 
necessary  to  constitute  an  offence  are  not  known  to  the  alleged  offender, 
there  can  be  no  mens  rea.  I  have  used  the  word  "knowingly  ;  "  but  it 
will,  perhaps,  be  said  that  here  the  prisoner  not  only  did  not  do  the  act 
knowingly,  but  knew,  as  he  would  have  said,  or  believed,  that  the  fact 
was  otherwise  than  such  as  would  have  made  his  act  a  crime  ;  that  here 
the  prisoner  did  not  say  to  himself,  "  I  do  not  know  how  the  fact  is, 
whether  she  is  under  sixteen  or  not,  and  will  take  the  chance,"  but 
acted  on  the  reasonable  belief  that  she  was  over  sixteen  ;  and  that 
though  if  he  had  done  what  he  did,  knowing  or  believing  neither  way, 
but  hazarding  it,  there  would  be  a  meiis  rea,  there  is  not  one  when,  as 
he  believes,  he  knows  that  she  is  over  sixteen. 

It  is  impossible  to  suppose  that,  to  bring  the  case  within  the  statute, 
a  person  taking  a  girl  out  of  her  father's  possession  against  his  will  is 
guilty  of  no  offence  unless  he,  the  taker,  knows  she  is  under  sixteen  ; 
that  he  would  not  be  guilty  if  the  jury  were  of  opinion  he  knew  neither 
one  way  nor  the  other.  Let  it  be,  then,  that  the  question  is  whether 
he  is  guilty  where  he  knows,  as  he  thinks,  that  she  is  over  sixteen. 
This  introduces  the  necessity  for  reading  the  statute  with  some  strange 
words  introduced;  as  thus:  "  Whosoever  shall  take  any  unmarried 
girl,  being  under  the  age  of  sixteen,  and  not  believing  her  to  be  over 
the  age  of  sixteen,  out  of  the  possession,"  etc.     Those  words  are  not 

1  In  this  opinion  Kellt,  C.  B.,  Cleasby,  Pollock  and  Ampiilett,  BB.,  and 
Grove,  Quain,  and  Denman,  JJ.,  concurred.  Blackburn.  J.,  also  delivered  an 
opinion  supporting  the  conviction,  in  which  Cockburn,  C.  J.,  Mellor,  Lush,  Quain, 
Denman,  Archibald,  Field,  and  Lindley,  JJ.,  and  Pollock,  B.,  concurred. 
—  Ed. 

26 


402  BEGINA  V.   PRINCE,  [CHAP.  VI. 

there,  and  the  question  is,  whether  we  are  bound  to  construe  the  stat- 
ute as  though  they  were,  on  account  of  the  rule  that  the  me7is  rea  is 
necessar}^  to  make  an  act  a  crime.  I  am  of  opinion  that  we  are  not, 
nor  as  though  the  word  "  knowingly"  was  there,  and  for  the  following 
reasons  :  The  act  forbidden  is  wrong  in  itself,  if  without  lawful  cause  ; 
I  do  not  say  illegal,  but  wrong.  I  have  not  lost  sight  of  this,  that 
though  the  statute  probably  principally  aims  at  seduction  for  carnal 
purposes,  the  taking  may  be  by  a  female  with  a  good  motive.  Never- 
theless, though  there  may  be  such  cases,  which  are  not  immoral  in  one 
sense,  I  say  that  the  act  forbidden  is  wrong. 

Let  us  remember  what  is  the  case  supposed  by  the  statute.  It  sup- 
poses that  there  is  a  girl  —  it  does  not  say  a  woman,  but  a  girl  — 
something  between  a  child  and  a  woman  ;  it  supposes  she  is  in  the 
possession  of  her  father  or  mother,  or  other  person  having  lawful  care 
or  charge  of  her;  and  it  supposes  there  is  a  taking,  and  that  that 
taking  is  against  the  will  of  the  person  in  whose  possession  she  is. 
It  is,  then,  a  taking  of  a  girl,  in  the  possession  of  some  one,  against 
his  will.  I  say  that  done  witliout  lawful  cause  is  wrong,  and  that  the 
legislature  meant  it  should  be  at  the  risk  of  the  taker  whether  or  no 
she  was  under  sixteen.  I  do  not  say  that  taking  a  woman  of  fifty  from 
her  brother's  or  even  father's  house  is  wrong.  She  is  at  an  age  when 
she  has  a  right  to  choose  for  herself;  she  is  not  a  girl,  nor  of  such 
tender  age  that  she  can  be  said  to  be  in  the  possession  of  or  under  the 
care  or  charge  of  an3'one.  I  am  asked  where  I  draw  the  line;  I  answer 
at  when  the  female  is  no  longer  a  girl  in  anj-one's  possession. 

But  what  the  statute  contemplates,  and  what  I  say  is  wrong,  is  the 
taking  of  a  female  of  such  tender  years  that  she  is  properly  called  a 
girl,  can  be  said  to  be  in  another's  possession,  and  in  that  other's  care 
or  charge.  No  argument  is  necessar3-  to  prove  this ;  it  is  enough  to 
state  the  case.  The  legislature  has  enacted  that  if  anyone  does  this 
wrong  act,  he  does  it  at  the  risk  of  her  turning  out  to  be  under  sixteen. 
This  opinion  gives  full  scope  to  the  doctrine  of  the  7}iens  rea.  If  the 
taker  believed  he  had  the  father's  consent,  though  wrongly,  he  would 
have  no  mens  rea  /  so  if  he  did  not  know  she  was  in  anyone's  posses- 
sion, nor  in  the  care  or  charge  of  anyone.  In  those  cases  he  would  not 
know  he  was  doing  the  act  forbidden  by  the  statute  —  an  act  which,  if 
he  know  that  she  was  in  possession  and  in  care  or  charge  of  anjone, 
he  would  know  was  a  crime  or  not,  according  as  she  was  under  sixteen 
or  not.  He  would  not  know  he  was  doing  an  act  wrong  in  itself, 
whatever  was  his  intention,  if  done  without  lawful  cause. 

In  addition  to  these  considerations,  one  may  add  that  the  statute 
does  use  the  word  "  unlawfully,"  and  does  not  use  the  words  "  know- 
ingly "  or  "  not  believing  to  the  contrary."  If  the  question  was  whether 
his  act  was  unlawful,  there  would  be  no  difficult}-,  as  it  clearly  was  not 
lawful. 

This  view  of  the  section,  to  my  mind,  is  much  strengthened  by  a 
reference  to  other  sections  of  the  same  statute.     Sect.  50  makes  it 


SECT.  II.]  EEGINA   V.   PKINCE.  403 

a  felony  to  unlawfully  and  carnally  know  a  girl  under  the  age  of  ten. 
Sect.  51  enacts  when  she  is  above  ten  and  under  twelve  to  unlawfull}^ 
and  carnally  know  her  is  a  misdemeanor.  Can  it  be  supposed  that  in 
the  former  case  a  person  indicted  might  claim  to  be  acquitted  on  the 
ground  that  he  had  believed  the  girl  was  over  ten  though  under  twelve, 
and  so  that  he  had  only  committed  a  misdemeanor ;  or  that  he  believed 
her  over  twelve,  and  so  had  committed  no  offence  at  all ;  or  that  in  a 
case  under  s.  51  he  could  claim  to  be  acquitted,  because  he  believed  her 
over  twelve  ?  In  both  cases  the  act  is  intrinsically  wrong  ;  for  the  stat- 
ute says  if  "  unlawfully  "  done.  The  act  done  with  a  mens  rea  is  un- 
lawfully and  carnally  knowing  the  girl,  and  the  man  doing  that  act  does 
it  at  the  risk  of  the  child  being  under  the  statutory  age.  It  would  be 
miscliievous  to  hold  otherwise.  So  s.  56,  by  which,  whoever  shall  take 
away  any  child  under  fourteen  with  intent  to  deprive  parent  or  guardian 
of  the  possession  of  the  child,  or  with  intent  to  steal  any  article  upon 
such  child,  shall  be  guilty  of  felony.  Could  a  prisoner  say,  "  I  did 
talie  away  the  child  to  steal  its  clothes,  but  I  believed  it  to  be  over 
fourteen?"  If  not,  then  neither  could  he  sa}',  ''I  did  take  the  child 
with  intent  to  deprive  the  parent  of  its  possession,  and  I  believed  it 
over  fourteen."  Because  if  words  to  that  effect  cannot  be  introduced 
into  the  statute  where  the  intent  is  to  steal  the  clothes,  neither  can  they 
where  the  intent  is  to  take  the  child  out  of  the  possession  of  the  parent. 
But  if  those  words  cannot  be  introduced  in  s.  56,  why  can  they  be  in 


s.  00  r 


The  same  principle  applies  in  other  cases.  A  man  was  held  liable  for 
assaulting  a  police  officer  in  the  execution  of  his  duty,  though  he  did  not 
know  he  was  a  police  officer.  (10  Cox,  Cr.  C.  362.)  Why?  because  the 
act  was  wrong  in  itself  So,  also,  in  the  case  of  burglary,  could  a  person 
charged  claim  an  acquittal  on  the  ground  that  he  believed  it  was  past 
six  when  he  entered,  or  in  housebreaking,  that  he  did  not  know  the 
place  broken  into  was  a  house?  Take  also  the  case  of  libel,  published 
when  the  publisher  thought  the  occasion  privileged,  or  that  he  had  a 
defence  under  Lord  Campbell's  Act,  but  was  wrong;  he  could  not  be 
entitled  to  be  acquitted  because  there  was  no  mens  rea.  Why?  because 
the  act  of  publishing  written  defamation  is  wrong  where  there  is  no 
lawful  cause. 

As  to  the  case  of  the  marine  stores,  it  was  held  properly  that  there 
was  no  77iens  rea  where  the  person  charged  with  the  possession  of 
naval  stores  with  the  Admiralty  mark  did  not  know  the  stores  he  had 
bore  the  mark :  Reg.  v.  Sleep,  8  Cox,  Cr.  C.  472  ;  because  there  is 
nothing  prima  facie  wrong  or  immoral  in  having  naval  stores  unless 
they  are  so  marked.  But  suppose  his  servant  had  told  him  that  there 
was  a  mark,  and  he  had  said  he  would  chance  whether  or  not  it  was  the 
Admiralty  mark?  So  in  the  case  of  the  carrier  with  game  in  his  pos- 
session ;  unless  he  knew  he  had  it,  there  would  be  nothing  done  or 
permitted  by  him,  no  intentional  act  or  omission.     So  of  the  vitriol 


404  REGINA   V.   PRINCE.  [CIIAP.  VI. 

senders ;  there  was  nothing  wrong  in  sending  such  packages  as  were 
sent  unless  they  contained  vitriol. 

Further,  there  have  been  four  decisions  on  this  statute  in  favour  of 
the  construction  I  contend  for.  I  say  it  is  a  question  of  construction 
of  this  particular  statute  in  doubt,  bringing  thereto  the  common  law 
doctrine  of  mens  rea  being  a  necessary  ingredient  of  crime.  It  seems 
to  me  impossible  to  say  that  where  a  person  takes  a  girl  out  of  her 
father's  possession,  not  knowing  whether  she  is  or  is  not  under  sixteen, 
that  he  is  not  guilty;  and  equally  impossible  when  he  believes,  but 
erroneously,  that  she  is  old  enough  for  him  to  do  a  wrong  act  with 
safety.     I  think  the  conviction  should  be  affirmed. 

Denjian,  J.  I  agree  in  the  judgment  of  my  Brothers  Bramwell  and 
Blackburn,  and  I  wish  what  I  add  to  be  understood  as  supplementary 
to  them.  The  defendant  was  indicted  under  the  24  &  25  Vict  c.  100, 
s.  55,  which  enacts  that  "  whosoever  shall  unlawfully  take,  or  cause  to 
be  taken,  any  unmarried  girl,  being  under  the  age  of  sixteen  years,  out 
of  the  possession  and  against  the  wish  of  her  father  or  mother,  or  of 
any  other  person  having  the  lawful  care  or  charge  of  her,  shall  be  guilty 
of  a  misdemeanor." 

I  cannot  hold  that  the  word  "  unlawfully"  is  an  immaterial  word  in 
an  indictment  framed  upon  this  clause.  I  think  that  it  must  be  taken 
to  have  a  meaning,  and  an  important  meaning,  and  to  be  capable  of 
being  supported  or  negatived  by  evidence  upon  the  trial :  see  Reg.  v. 
Turner,  2  Moo.  Cr.  C.  41 ;  Reg.  v.  Ryan,  2  Hawk.  P.  C.  C.  25,  §  96. 

In  the  present  case  the  jury  found  that  the  defendant  had  done  every- 
thing required  to  bring  himself  within  the  clause  as  a  misdemeanant, 
unless  the  fact  that  he  bona  fide  and  reasonably  believed  the  girl  taken 
by  him  to  be  eighteen  years  old  constituted  a  defence.  That  is  in 
other  woitIs,  unless  such  bona  fide  and  reasonable  belief  prevented 
them  from  saying  that  the  defendant  in  what  he  did  acted  "  unlawfully  " 
within  the  meaning  of  the  clause.  The  question,  therefore,  is  whether, 
upon  this  finding  of  the  jur}',  the  defendant  did  unlawfully  do  the  things 
which  they  found  him  to  have  done. 

The  solution  of  this  question  depends  upon  the  meaning  of  the  word 
"  unlawfully  "  in  s.  55.  If  it  means  "  with  a  knowledge  or  belief  that 
every  single  thing  mentioned  in  the  section  existed  at  the  moment  of 
the  taking,"  undoubtedly  the  defendant  would  be  entitled  to  an  acquittal, 
because  he  did  not  believe  that  a  girl  of  under  sixteen  was  being  taken 
by  him  at  all.  If  it  only  means  "  without  lawful  excuse  "  or  justifica- 
tion, then  a  further  question  arises,  viz.,  whether  the  defendant  had  any 
lawful  excuse  or  justification  for  doing  all  the  acts  mentioned  in  the 
clause  as  constituting  the  offence,  by  reason,  merely,  that  he  bona  fide 
and  reasonably  believed  the  girl  to  be  older  than  the  age  limited  by  the 
clause.  Bearing  in  mind  the  previous  enactments  relating  to  the  abduc- 
tion of  girls  under  sixteen,  4  «&;  5  Phil.  &  Mary,  c.  8,  s.  2,  and  the  gen- 
eral course  of  the  decisions  upon  those  enactments,  and  upon  the  present 
statute,  and  looking  at  the  mischief  intended  to  be  guarded  against. 


SECT.  II.]  REGINA   V.   PRINCE.  405 

it  appears  to  me  reasonably  clear  that  the  word  "  unlawful]}',"  in  the 
true  sense  in  which  it  was  used,  is  fully  satisfied  by  holding  that  it  is 
equivalent  to  the  words  "  without  lawful  excuse,"  using  those  words  as 
equivalent  to  "  without  such  an  excuse  as  being  proved  would  be  a 
complete  legal  justification  for  the  act,  even  where  all  the  facts  con- 
stituting the  offence  exist." 

Cases  may  easily  be  suggested  where  such  a  defence  might  be  made 
out,  as,  for  instance,  if  it  were  proved  that  he  had  the  authority  of  a 
Court  of  competent  jurisdiction,  or  of  some  legal  warrant,  or  that  he 
acted  to  prevent  some  illegal  violence  not  justified  b}'  the  relation  of 
parent  and  child,  or  school-mistress,  or  other  custodian,  and  requiring 
forcible  interference  b}'  wa}'  of  protection. 

In  the  present  case  the  jury  find  that  the  defendant  believed  the  girl 
to  be  eighteen  years  of  age  ;  even  if  she  had  been  of  that  age,  she  would 
have  been  in  the  lawful  care  and  charge  of  her  father,  as  her  guardian 
by  nature:  see  Co.  Litt.  88,  b,  n.  12,  19th  ed.,  recognized  in  Reg.  v. 
Howes,  3  E.  &  E.  332.  Her  father  had  a  right  to  her  personal  custody 
up  to  the  age  of  twenty-one,  and  to  appoint  a  guardian  by  deed  or  will, 
whose  right  to  her  personal  custody  would  have  extended  up  to  the 
same  age.  The  belief  that  she  was  eighteen  would  be  no  justification 
to  the  defendant  for  taking  her  out  of  his  possession,  and  against  his 
will.//  By  taking  her,  even  with  her  own  consent,  he  must  at  least  have 
been  guilty  of  aiding  and  abetting  her  in  doing  an  unlawful  act,^^iz.,  in 
escaping  against  the  will  of  her  natural  guardian  from  his  lawful  care 
and  charge.  This,  in  my  opinion,  leaves  hiin  wholly  without  lawful 
excuse  or  justification  for  the  act  he  did,  even  though  he  believed  that 
the  girl  was  eighteen,  and  therefore  unable  to  allege  that  what  he  has 
done  was  not  unlawfully  done,  within  the  meaning  of  the  clause.  In 
other  words,  having  knowingly  done  a  wrongful  act,  viz.,  in  taking  the 
girl  away  from  the  lawful  possession  of  her  father  against  his  will,  and 
in  violation  of  his  rights  as  guardian  bj^  nature,  he  cannot  be  heard  to 
say  that  he  thought  the  girl  was  of  an  age  beyond  that  limited  Iw  the 
statute  for  the  off"ence  charged  against  him.  He  had  wrongfully  done 
the  very  thing  contemplated  b}-  the  legislature  :  He  had  wrongfully  and 
knowingly  violated  the  father's  rights  against  the  father's  will.  And 
he  cannot  set  up  a  legal  defence  by  merely  proving  that  he  thought  he 
was  committing  a  different  kind  of  wrong  from  that  which  in  fact  he 
was  committing.  Conviction  affirmed. 


406 


REYNOLDS   V.   UNITED   STATES.  [CHAP.  VI. 


REYNOLDS  v.   UNITED  STATES. 

Supreme  Court  of  the  United  States.     1878. 

[Reported  98  United  States,  145.] 

Error  to  the  Supreme  Court  of  the  Territory  of  Utah. 

This  is  an  indictment  found  in  the  District  Court  for  the  third  judicial 
district  of  the  Territory  of  Utah,  charging  George  Reynolds  with  bigamy 
in  violation  of  sect.  5352  of  the  Revised  Statutes.^ 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

In  our  opinion,  the  statute  immediately  under  consideration  is  within 
the  legislative  power  of  Congress.  It  is  constitutional  and  valid  as  pre- 
scribing a  rule  of  action  for  all  those  residing  in  the  Territories,  and  in 
places  over  which  the  United  States  have  exclusive  control.  This  being 
so,  the  only  question  which  remains  is,  whether  those  who  make  polyg- 
amy a  part  of  their  religion  are  excepted  from  the  operation  of  the 
statute.  If  they  are,  then  those  who  do  not  make  polygamy  a  part  of 
their  religious  belief  may  be  found  guilty  and  punished,  while  those 
who  do,  must  be  acquitted  and  go  free.  This  would  be  introducing  a 
new  element  into  criminal  law.  Laws  are  made  for  the  government  of 
actions,  and  while  they  cannot  interfere  with  mere  religious  belief  and 
opinions,  they  may  with  practices.  Suppose  one  believed  that  human 
sacrifices  were  a  necessary  part  of  religious  worship,  would  it  be  seri- 
ously contended  that  the  civil  government  under  which  he  lived  could 
not  interfere  to  prevent  a  sacrifice?  Or  if  a  wife  religiously  believed  it 
was  her  duty  to  burn  lierself  upon  the  funeral  pile  of  her  dead  husband, 
would  it  be  beyond  the  power  of  the  civil  government  to  prevent  her 
carrying  her  belief  into  practice  ? 

So  here,  as  a  law  of  the  organization  of  society  under  the  exclusive 
dominion  of  the  United  States,  it  is  provided  that  plural  marriages  shall 
not  be  allowed.  Can  a  man  excuse  his  practices  to  the  contrary  because 
of  his  religious  belief?  To  permit  this  would  be  to  make  the  professed 
doctrines  of  religious  belief  superior  to  the  law  of  the  land,  and  in  effect 
to  permit  every  citizen  to  become  a  law  unto  himself.  Government 
could  exist  only  in  name  under  such  circumstances. 

A  criminal  intent  is  generally  an  element  of  crime,  but  every  man  is 
presumed  to  intend  the  necessaiy  and  legitimate  consequences  of  what 
he  knowingh'  does.  Here  the  accused  knew  he  had  been  once  married, 
and  that  his  first  wife  was  living.     He  also  knew  that  his  second  mar- 

1  Part  only  of  the  case,  relating  to  the  question  of  intent,  is  here  given. 


SI'CT.  II.]  UNITED    STATES   V.    HARMON.  40? 

riage  was  forbidden  b}'  law.  "When,  therefore,  he  married  the  second 
time,  he  is  presumed  to  have  intended  to  break  the  law.  And  the 
breaking  of  the  law  is  the  crime.  Every  act  necessary-  to  constitute 
the  crime  was  knowingly  done,  and  the  crime  was  therefore  knowingU- 
committed.  Ignorance  of  a  fact  may  sometimes  be  taken  as  evidence 
of  a  want  of  criminal  intent,  but  not  ignorance  of  the  law.  The  onh- 
defence  of  the  accused  in  this  case  is  his  belief  that  the  law  ought  not 
to  have  been  enacted.  It  matters  not  that  his  belief  was  a  part  of  his 
professed  religion  ;  it  was  still  belief,  and  belief  only.^ 

*-:     ft  ^ 


UNITED   STATES   v.  HARMON. 
United  States  District  Court,  Dist.  of  Kansas.     1891. 

[Reported  45  Federal  Reporter,  414.] 

Philips,  J.'^  Reduced  to  its  actual  essence,  the  ultimate  position  of 
defendant  is  this  :  That  altliough  the  language  emplo3-ed  in  the  given 
article  may  be  obscene,  as  heretofore  defined,  yet  as  it  was  a  necessary 
vehicle  to  convey  to  the  popular  mind  the  aggravation  of  the  abuses  in 
sexual  commerce  inveighed  against,  and  the  object  of  the  publisher 
being  to  correct  the  evil  and  thereb}'  alleviate  human  condition,  the 
author  should  be  deemed  a  public  benefactor,  rather  than  a  malefactor. 
In  short,  the  proposition  is  that  a  man  can  do  no  public  wrong  wlio 
believes  that  what  he  does  is  for  the  ultimate  public  good.  The  under- 
lying vice  of  all  this  character  of  argument  is  that  it  leaves  out  of  view 
the  existence  of  the  social  compact,  and  the  idea  of  government  by  law. 
If  the  end  sought  justifies  the  means,  and  there  were  no  arbiter  but  the 
individual  conscience  of  the  actor  to  determine  the  fact  wliether  the 
means  are  justifiable,  homicide,  infanticide,  pillage,  and  incontinence 
might  run  riot ;  and  it  is  not  extravagant  to  predict  that  the  success  of 
such  philosophy  would  remit  us  to  that  barbaric  condition  where 

"  No  common  weal  the  human  tribe  allied, 
Bound  by  no  law,  by  no  fixed  morals  tied. 
Each  snatched  the  booty  which  his  fortune  brought, 
And  wise  in  instinct  each  his  welfare  sought." 

Guiteau  stoutly  maintained  to  the  end  his  sanity,  and  that  he  felt  he 
had  a  patriotic  mission  to  fulfil  in  taking  off  President  Garfield,  to  the 
salvation  of  a  political  party.    The  Hindu  mother  cast  her  babe  to  the 

1  Ace.  State  v.  White,  64  N.  H.  48,  5  Atl.  828.  —  Ed. 

2  Part  of  the  opinion  only  is  f^ircn.  The  case  wa.s  an  indictment  for  depositing  an 
obscene  publication  in  the  United  States  post-office  in  violation  of  the  provisions  of 
section  3893  of  the  Revised  Statutes  of  the  United  States.  The  defendant  attempted 
to  justify  his  act  on  the  ground  that  he  was  actuated  solely  by  the  desire  to  improve 
sexual  habits,  and  thus  benefit  the  human  race.  —  Ed. 


408  ANONYMOUS.  [CHAP.  VI. 

advouring  Ganges  to  appease  the  gods.  But  civilized  societ}'  says  both 
are  murderers.  The  Mormon  contends  that  his  religion  teaches  polyg- 
amy ;  and  there  is  a  school  of  so-called  "  modern  thinkers"  who  would 
abolish  monogamy,  and  erect  on  the  ruins  the  flagrant  doctrine  of 
promiscuity,  under  the  disguise  of  the  affinities.  All  these  claim  libert3- 
of  conscience  and  thought  as  the  basis  of  their  dogmas,  and  the  pro 
hono  ptcblico  as  the  strength  of  their  claim  to  indulgence.  The  law 
against  adultery  itself  would  lie  dormant  if  the  libertine  could  get  the 
courts  to  declare  and  the  jury  in  obedience  thereto  to  say  that  if  he 
invaded  the  sanctuary  of  conjugal  life  under  the  belief  that  the  improve- 
ment of  the  human  race  demanded  it  he  was  not  amenable  to  the  statute. 
Societ}^  is  organized  on  the  theory,  born  of  the  necessities  of  human 
well-being,  that  each  member  yields  up  something  of  his  natural  privi- 
leges, predilections,  and  indulgences  for  the  good  of  the  composite 
community ;  and  he  consents  to  all  the  motto  implies,  sahts  populi 
stq)rema  est  lex;  and,  as  no  government  can  exist  without  law,  the  law- 
making power,  within  the  limits  of  constitutional  authorit}-,  must  be 
recognized  as  the  body  to  prescribe  what  is  riglit  and  prohibit  what  is 
wrong.  It  is  the  very  incarnation  of  the  spirit  of  anarchy  for  a  citizen 
to  proclaim  that  like  the  heathen  he  is  a  law  unto  himself.  The  respon- 
sibility for  this  statute  rests  upon  Congress.  The  duty  of  the  courts  is 
imperative  to  enforce  it  while  it  stands. 


-  ANONYMOUS. 
Reporters'  Note.     1498. 

[Reported  Year-Book,  13  Hen.  VII.  14,  pi.  5.] 

Hussey  said  that  a  question  had  been  put  to  him,  which  was  this: 
A  clerk  of  a  church  being  in  a  chamber  struck  another  with  the  keys 
of  the  church ;  which  with  the  force  of  the  blow  flew  out  of  his  hand 
and  through  a  window,  and  put  out  the  eye  of  a  woman.  The  question 
was,  whether  it  should  be  called  maihem  or  not.  And  it  seems  that  it 
was,  because  he  had  a  bad  intent  at  the  beginning  ;  but  it  should  be  well 
considered  in  assessing  the  damages. 


SECT.  IlJ  KEGINA  V.   BRUCE.  409 

EEX   u.  BLACKHAM. 
Crown  Case  Reserved.    1787. 

[Reported  2  East,  Pleas  of  the  Croion,  711.] 

Blackham  assaulted  a  woman  with  intent  to  commit  a  rape,  and  she 
without  any  demand  from  him  oflered  him  monej-,  which  the  prisoner 
took  and  put  into  his  pocket,  but  continued  to  treat  her  with  violence 
to  effect  his  original  purpose  till  he  was  interrupted  by  the  approach  of 
another  person.  This  was  holden  to  be  robbery  b}*  a  considerable 
majority  of  the  judges ;  for  the  woman,  from  violence  and  terror  occa- 
sioned by  the  prisoner's  behavior,  and  to  redeem  her  chastit}',  offered 
the  mone}',  which  it  was  clear  she  would  not  have  given  voluntarily ; 
and  the  prisoner,  by  taking  it,  derived  that  advantage  to  himself  from 
his  felonious  conduct ;  though  his  original  intent  were  to  commit  a  rape. 


^    civ  II    . 

REGINA  V.  BRUCE. 
Central  Criminal  Court.    1847. 

{Reported  2  Cox  C.  C.  262.] 

The  prisoner  was  indicted  for  manslaughter,  under  the  circumstances 
detailed  by  one  of  the  witnesses.  He  said  the  prisoner  came  into  his 
master's  shop,  and  pulled  him  b}-  the  hair  off  a  cask  where  he  was  sit- 
ting, and  shoved  him  to  the  door,  and  from  the  door  back  to  the  counter. 
That  the  prisoner  then  put  his  arm  round  his  neck  and  spun  hira  round, 
and  the}-  came  together  out  of  the  shop;  the  prisoner  kept  "  hold  of 
the  witness  when  the}'  were  outside,  and  kept  spinning  him  round  ;  the 
latter  broke  away  from  him,  and,  in  consequence  and  at  the  moment  of 
his  so  doing,  he  (the  prisoner)  reeled  out  into  the  road  and  knocked 
against  a  woman  who  was  passing  and  Jinocked  her  down.  The  prisoner 
was  veiy  drunk,  and  staggered  as  he  talked." 

The  woman  so  knocked  down  died  shortly  afterwards  of  the  injuries 
she  had  received,  and  it  was  for  having  caused  her  death  that  the  pris- 
oner was  indicted. 

Mr.  Justice  Erle  inquired  of  the  witness  (a  young  lad)  whether  he 
resisted  the  prisoner  during  the  transaction.  The  lad  answered  that  he 
did  not :  he  thought  the  prisoner  was  only  playing  with  him,  and  was 
sure  that  it  was  intended  as  a  joke  throughout. 

Erle,  J.  (to  the  jury).  I  think,  upon  this  evidence,  you  must  acquit 
the  prisoner.  Where  the  death  of  one  person  is  caused  by  the  act  of 
another,  while  the  latter  is  in  pursuit  of  any  unlawful  object,  the  person 
so  killing  is  guilty  of  manslaughter,  although  he  had  no  intention  what- 
ever of  injuring  him  who  was  the  victim  of  his  conduct.    Here,  however, 


410 


BEGIN  A  V,  FRANKLIN.  [CHAP.  VI. 


there  was  nothing  unlawful  in  what  the  prisoner  did  to  this  lad,  and 
which  led  to  the'death  of  the  woman.  Had  his  treatment  of  the  boy 
been  against  the  will  of  the  latter,  the  prisoner  would  have  been  com- 
mitting an  assault  —  an  unlawful  act  —  which  would  have  rendered 
him  amenable  to  the  law  for  any  consequences  resulting  from  it ;  but 
as  every  thing  that  was  done  was  with  the  witness's  consent,  there  was 
no  assault,  and  consequently  no  illegality.  It  is,  in  the  eye  of  the  law, 
an  accident,  and  nothing  more. 


REGINA  V.  FRANKLIN. 
Sussex  Assizes.     1883. 

[Reported  15  Cox  C.C.  163] 

Charles  Harris  Franklin  was  indicted  before  Field,  J.,  at  Lewes, 
for  the  manslaughter  of  Craven  Patrick  Trenchard. 

The  facts  were  as  follows  : 

On  the  morning  of  the  25th  day  of  July,  1882,  the  deceased  was  bath- 
ing in  the  sea  from  the  West  Pier,  at  Brighton,  and  swimming  in  the 
deep  water  around  it.  The  prisoner  took  up  a  good  sized  box  from 
the  refreshment  stall  on  the  pier  and  wantonly  threw  it  into  the  sea. 
Unfortunately  the  box  struck  the  deceased,  C.  P.  Trenchard,  who  was 
at  that  moment  swimming  underneath,  and  so  caused  his  death. 

Gore,  for  the  prosecution,  urged  that  it  would,  apart  from  the  ques- 
tion of  negligence,  be  sufficient  to  constitute  the  offence  of  manslaughter, 
that  the  act  done  by  the  prisoner  was  an  unlawful  act,  which  the  facts 
clearly  showed  it  to  be,  and  cited  the  case  of  Rex  r.  Fenton,  1  Lewin's 
Cr.  Cas.  179.  This  case  is  referred  to  in  1  Russell  on  Crimes,  638  :  "  If 
death  ensues  in  consequence  of  a  wrongful  act,  which  the  party  who 
commits  it  can  neither  justify  nor  excuse,  it  is  manslaughter.  An  indict- 
ment charged  that  tliere  was  a  scaffolding  in  a  certain  coal  mine,  and 
that  the  prisoners,  by  throwing  large  stones  down  the  mine,  broke  the 
scaffolding,  and  that  in  consequence  of  the  scaffolding  being  so  broken 
a  corf  in  which  the  deceased  was  descending  the  mine  struck  against  a 
beam  on  which  the  scaffolding  had  been  supported,  and  by  such  striking 
the  corf  was  overturned  and  the  deceased  precipitated  into  the  mine 
and  killed.  Tindal,  C.  J.,  said  :  If  death  ensues  as  the  consequence  of  a 
wrongful  act,  which  the  party  who  commits  it  can  neither  justify  nor 
excuse,  it  is  not  accidental  death,  but  manslaughter.  If  the  wrongful 
act  was  done  under  circumstances  which  show  an  intent  to  kill  or  do 
any  serious  injury  in  the  particular  case,  or  an}'  general  malice,  the 
offence  becomes  that  of  murder.  In  the  present  instance  the  act  was 
one  of  mere  wantonness  and  sport,  but  still  the  act  was  wrongful,  it  was 
a  trespass.    The  only  question,  therefore,  is,  whether  the  death  of  the 


SECT..  II.]  .COMMONWEALTH   V.   ADAMS.  411 

part}'  is  to  be  fairly  and  reasonably  considered  as  a  consequence  of 
such  wrongful  act.  If  it  followed  from  such  wrongful  act,  as  an  effect 
from  a  cause,  the  offence  is  manslaughter  ;  if  it  is  altogether  unconnected 
with  it,  it  is  accidental  death." 

Field,  J.  This  is  a  question  of  great  importance,  for  if  I  must  follow 
the  ruling  of  the  very  learned  judge  in  Reg.  v.  Fenton  (ubi  supra)  it  will 
be  necessary  to  go  into  the  question  whether  the  prisoner  was  guilty  of 
negligence.     I  will  consult  my  brother  Mathew  upon  the  pomt. 

Field,  J.,  after  a  short  interval,  returned  into  court  and  said  :  I  am 
of  opinion  that  the  case  must  go  to  the  jury  upon  the  broad  ground  of 
negligence,  and  not  upon  the  narrow  ground  proposed  by  the  learned 
counsel,  because  it  seems  to  me  —  and  I  may  say  that  in  this  view  my 
brother  Mathew  agrees  —  that  the  mere  fact  of  a  civil  wrong  committed 
by  one  person  against  another  ought  not  to  be  used  as  an  incident  which 
is  a  necessary  step  in  a  criminal  case.  I  have  a  great  abliorrence  of 
constructive  crime.  We  do  not  think  the  case  cited  by  the  counsel  for 
the  prosecution  is  binding  upon  us  in  the  facts  of  this  case,  and,  there- 
fore, the  civil  wrong  against  the  refreshment- stall  keeper  is  immaterial 
to  this  charge  of  manslaughter.  I  do  not  think  that  the  facts  of  this 
case  bring  it  clearly  within  the  principle  laid  down  by  Tindal,  C.  J.,  in 
Reg.  V.  Fenton.  If  I  thought  this  case  was  in  principle  like  that  case 
I  would,  if  requested,  state  a  case  for  the  opinion  of  the  Court  of  Crimi- 
nal Appeal.     But  I  do  not  think  so. 

It  was  not  disputed  that  the  prisoner  threw  the  box  over  the  pier, 
that  the  box  fell  upon  the  boy,  and  the  death  of  the  boy  was  caused  by 
the  box  falling  upon  him. 

Gill,  for  the  prisoner,  relied  upon  the  point  that  there  was  not  proved 
such  negligence  as  was  criminal  negligence  on  the  part  of  the  prisoner. 

Field,  J.,  in  summing  up  the  case  to  the  jury,  went  carefully  through 
the  evidence,  pointing  out  how  the  facts  as  admitted  and  proved  affected 
the  prisoner  upon  the  legal  question  as  he  had  explained  it  to  them. 

The  jury  returned  a  verdict  of  guilty  of  manslaughter.  Guilty. 

The  prisoner  was  sentenced  to  two  months'  imprisonment. 


I 
I 


'"    /  <3s    3\  -vj 

COMMONWEALTH  v.  ADAMS. 
Supreme  Judicial  Court  of  Massachusetts.    1873. 

[Reported  114  Massachusetts,  323] 

Complaint  for  assault  and  battery. 

At  the  trial  in  the  Superior  Court,  before  Bacon,  J.,  it  appeared  that 
the  defendant  was  driving  in  a  sleigh  down  Beacon  Street,  and  was 
approaching  the  intersection  of  Charles  Street,  when  a  team  occupied 
the  crossing.    The  defendant  endeavored  to  pass  the  team  while  driving 


^^2  COMMONWEALTH   V.   ADAMS..  [CIIAP.  VI. 

at  a  rate  prohibited  bv  an  ordinance  of  the  city  of  Boston.  In  so  doing, 
he  ran  a-ainst  and  knocked  down  a  boy  who  was  crossnig  Beacon  btreet. 
No  'special  intent  on  tlie  part  of  the  defendant  to  injure  the  boy  was 
shown  The  defendant  had  pleaded  guilty  to  a  complaint  for  fast  dnv- 
ina  in  violation  of  the  city  ordinance.  The  Commonwealth  asked  for  a 
vet-diet  upon  the  ground  that  the  intent  to  violate  the  city  ordinance 
suDPlied  the  intent  necessary  to  sustain  the  charge  of  assault  and  bat- 
tery The  court  so  ruled,  and  thereupon  the  defendant  submitted  to  a 
veii'ict  of  gnilty,  and  the  judge,  at  the  defendant's  request,  reportea 
the  case  for  the  determination  of  this  court. 

A.  Russ,  for  the  defendant. 

C.  Ji.  Train,  Attorney  General,  for  the  Commonwealth. 

Endicott,  J.  We  are  of  opinion  that  the  ruling  in  this  case  cannot 
be  sustained.  It  is  true  that  one  in  the  pursuit  of  an  unlawful  act  may 
sometimes  be  punished  for  another  act  done  without  design  and  by  mis- 
take, if  the  act  done  was  one  for  which  he  could  have  been  punished  if 
done  wilfully.  But  the  act,  to  be  unlawful  in  this  sense,  must  be  an  act 
bad  in  itself,  and  done  with  an  evil  intent ;  and  the  law  has  always 
made  this  distinction :  that  if  the  act  the  party  was  doing  was  merely 
malum  prohibitum,  he  shall  not  be  punishable  for  the  act  arising  from 
misfortune  or  mistake  ;  but  if  mahim  in  se,  it  is  otherwise.  1  Hale 
P.  C.  39  ;  Foster  C.  L.  259.  Acts  mala  in  se  include,  in  addition  to 
felonies,  all  breaches  of  public  order,  injuries  to  person  or  property, 
outrages  upon  public  decency  or  good  morals,  and  breaches  of  official 
dutyi^'when  done  wilfully  or  corruptly.  Acts  mala  prohibita  include 
any  matter  forbidden  or  commanded  by  statute,  but  not  otherwise  wrong. 
3  Greenl.  Ev.  §  1.  It  is  within  the  last  class  that  the  city  ordinance  of 
Boston  falls,  prohibiting  driving  more  than  six  miles  an  hour  in  the 
streets. 

Besides,  to  prove  the  violation  of  such  an  ordinance,  it  is  not  neces- 
sary to  show  that  it  was  done  wilfully  or  corruptly.  The  ordinance 
declares  a  certain  thing  to  be  illegal ;  it  therefore  becomes  illegal  to  do 
it,  without  a  wrong  motive  charged  or  necessary  to  be  proved  ;  and 
the  court  is  bound  to  administer  the  penalty,  although  there  is  an  entire 
want  of  design.  The  King  v.  Sainsbury,  4  T.  R.  451,  457.  It  was  held 
in  Commonwealth  ?;.  Worcester,  3  Pick.  462,  that  proof  only  of  the  fact 
that  the  party  was  driving  faster  than  the  ordinance  allowed  was  suf- 
ficient for  conviction.  See  Commonwealth  v.  Farren,  9  Allen,  489  ; 
Commonwealth  v.  Waite,  11  Allen,  264.  It  is  therefore  immaterial 
whether  a  party  violates  the  ordinance  wilfully  or  not.  The  offence 
consists,  not  in  the  intent  with  which  the  act  is  done,  but  in  doing  the 
act  prohibited,  but  not  otherwise  wrong.  It  is  obvious,  therefore,  that 
the  violation  of  the  ordinance  does  not  in  itself  supply  the  intent  to  do 
another  act  which  requires  a  criminal  intent  to  be  proved.  The  learned 
judge  erred  in  ruling  that  the  intent  to  violate  the  ordinance  in  itself 
supplied  the  intent  to  sustain  the  charge  of  assault  and  battery.  The 
verdict  must  therefore  be  set  aside,  and  a  New  trial  granted. 


SECT.  II.]  j^TATE   V,   HOBTQM^  413 

Supreme  Court  of  North  Carolina.     1905. 

[Reported  139  N.  C.  588.] 

Indictment  for  manslaughter  against  W.  P.  Horton,  heard  by  Judge 
W.  B.  CouNCiLL  and  a  jury,  at  April  Term,  1905,  of  the  Superior  Court 
of  Franklin  County.  The  jury  rendered  a  special  verdict,  and  such 
verdict  and  proceedings  tliereon  are  as  follows  : 

"That  in  the    month   of  November,    1904,  to-wit :  on  the day 

thereof,  the  defendant,  W.  P.   Horton,  was   hunting  turkeys  on   the 
lands  of  another ;  that  the  following  local  statute,  enacted  by  the  Gen- 
eral Assembly  of  1901,  was  in  force  at  and  in  the  place  in  which  said 
defendant  was  hunting,  to-wit :  chapter  410  of  the  Laws  of  1901  ;  that 
the  said  Horton  at  the  time  he  was  so  hunting,  had  not  the  written  con- 
sent of  the  owner  of  said  land,  or  of  his  lawful  agent;  that  while  so 
engaged  in  hunting  he  killed  Charlie  Hunt,  the  deceased,  but  that  said 
killing  was  wholly  unintentional ;  that  the  shooting  of  the  deceased  was 
done  while  the  defendant  was  under  the  impression  and  belief  that  he 
was  shooting  at  a  wild  turkey  ;  that  the  hunting  engaged    in  by  the 
defendant  was  not  of  itself  dangerous  to  human  life,  nor  was  he  reck- 
less in  the  manner  of  hunting  or  of  handling  the  firearm  with  which  the 
killing  was  done  ;  that  hunting  at  that  season  was  not  forbidden  under 
the  general  game  law  of  the  State,  but  was  prohibited  only  by    the 
special  statute  referred  to ;  that  the  shooting  from  which   the  killing 
resulted  was  not  done  in  sucli  grossly  careless  or  negligent  manner  as 
to  imply  any  moral  turpitude,  or  to  indicate  any  indifference  to  tlie 
safeguarding  of  human  life;  that,  but  for  the  said  statute  herein  incor- 
porated, the  killing  of  the  deceased  by  defendant  does  not  constitute 
any  violation  of  the  law.     If  upon  the  above  findings  of  fact,  the  court 
should  be  of  opinion  that  the  defendant  is  guilty  of  manslaughter,  we 
for  our  verdict  find  the  defendant  guilty  of  manslaughter,  but  if  the 
court  should  be  of  opinion  that  the  defendant  is  not  guilty,  we  for  our 
verdict  find  that  the  defendant  is  not  guilty."     Upon  this  special  find- 
ing, the  court  being  of  opinion  that  the  defendant  was  guilty  of  man- 
slaughter, so  adjudged  and  ordered  a  verdict  of  guilty  of  manslaughter 
to  be  entered,  and  gave  judgment  that  the  defendant  be  imprisoned  in 
the  county  jail  of  Franklin,  for  a  period  of  four  months.     Defendant 
excepted  to  the  ruling  of  the  court,  and  appealed  from  the  judgment 
against  him. 

Hoke,  J.,  after  stating  the  case:  It  will  be  noted  that  the  finding  of 
the  jury  declares  that  the  act  of  the  defendant  was  not  in  itself  danger- 
ous to  human  life,  and  excludes  every  element  of  criminal  negligence, 
and  rests  the  guilt  or  innocence  of  the  defendant  on  the  fact  alone  that 
at  the  time  of  the  homicide  the  defendant  was  hunting  on  another's 
land  without  written  permission  from  the  owner.     The  act  which  applies 


414  STATE    V.    HORTON.  [CHAP.  VI. 

only  in  the  counties  o-f  Orange,  Franklin,  and  Scotland,  makes  the  eon- 
duet  a  misdemeanor,  and  imposes  a  puuisliment  on  conviction,  of  not 
less  than  five  nor  more  than  ten  dollars. 

The  statement  sometimes  appears  in  works  of  approved  excellence  to 
the  effect  that  an  unintentional  homicide  is  a  criminal  offence  when 
occasioned  by  a  person  engaged  at  the  time  in  an  unlawful  act.  In 
nearly  every  instance,  however,  will  be  found  the  qualification  that  if 
the  act  in  question  is  free  from  negligence,  and  not  in  itself  of  danger- 
ous tendency,  and  the  criminality  must  arise,  if  at  all,  entirely  from  tlie 
fact  that  it  is  unlawful,  in  such  case,  the  unlawful  act  must  be  one  that 
is  malum  in  se  and  not  merely  malum  prohibitum,  and  this  we  hold  to 
be  the  correct  doctrine.  In  Foster's  Crown  Law,  it  is  thus  stated  at 
page  258  :  "In  order  to  bring  a  case  within  this  description  (excusable 
homicide)  the  act  upon  which  death  ensueth  must  be  lawful.  For  if 
the  act  be  unlawful,  I  mean  if  it  be  malum  in  se,  the  case  will  amount 
to  felony,  either  murder  or  manslaughter,  as  circumstances  may  vary 
the  nature  of  it.  If  it  be  done  in  prosecution  of  a  felonious  intent,  it 
will  be  murder  ;  but  if  the  intent  went  no  further  than  to  commit  a  bare 
trespass,  it  will  be  manslaughter."  At  page  259,  the  same  author  puts 
an  instance  with  his  comments  thei'eon  as  follows:  "A  shooteth  at 
the  poultry  of  B  and  by  accident  killeth  a  man  ;  if  his  intention  was  to 
steal  the  poultry,  which  must  be  collected  from  circumstances,  it  will 
be  murder  by  reason  of  that  felonious  intent,  but  if  it  was  done  wan- 
tonly and  without  that  intention,  it  will  be  barely  manslaughter.  The 
rule  I  have  laid  down  supposeth  that  the  act  from  which  death  ensued 
was  malum  in  se.  For  if  it  was  barely  malum  jjrohibitum,  as  shooting 
at  game  by  a  person  not  qualified  b}'  statute  law  to  keep  or  use  a  gun 
for  that  purpose,  the  case  of  a  person  so  offending  will  fall  under  the 
same  rule  as  that  of  a  qualified  man.  For  the  statutes  prohibiting  the 
destruction  of  the  game  under  certain  penalties  will  not,  in  a  question 
of  this  kind,  enhance  the  accident  beyond  its  intrinsic  moment." 

One  of  these  disqualifying  statutes  here  referred  to  as  an  instance  of 
malum,  prohibitum  was  an  act  passed  (13  Richard  II,  chap.  13)  to 
prevent  certain  classes  of  persons  from  keeping  dogs,  nets,  or  engines 
to  destro}-  game,  etc.,  and  the  punishment  imposed  on  conviction  was 
one  year's  imprisonment.     There  were  others  imposing  a  lesser  penalty. 

Bishop,  in  his  work,  entitled  New  Criminal  Law,  vol.  1,  sec.  332, 
treats  of  the  matter  as  follows  :  "  In  these  cases  of  an  unintended  evil 
result,  the  intent  whence  the  act  accidentally-  sprang  must  probably  be, 
if  specific,  to  do  a  thing  which  is  malum  in  se  and  not  merely  m,alum 
prohibitum."  Thus  Archbold  says:  "When  a  man  in  the  execution 
of  one  act,  by  misfortune  of  chance  and  not  designedh',  does  another 
act  for  which,  if  he  had  wilfully  committed  it,  he  would  be  liable  to  be 
punished  — in  that  case,  if  the  act  he  were  doing  were  lawful  or  merely 
malum  prohibitum,  he  shall  not  be  punishable  for  the  act  arising  from 
misfortune  or  chance,  but  if  it  be  malum  in  se,  it  is  otherwise.  To 
illustrate :  since  it  is  malutn  prohibitum,    not  malum  in   se,  for   an 


SECT.  II.]  STATE   V.    HORTON.  415 

unfiuthonzed  person  to  kill  game  in  England  contrary  to  the  statutes, 
if,  in  unlawfull}'  shooting  at  game,  he  accidentally  kills  a  man,  it  is  no 
more  criminal  in  him  than  if  he  were  authorized.  But  to  shoot  at 
another's  fowls,  wantonly  or  in  sport,  an  act  which  is  malum  in  se, 
though  a  civil  trespass,  and  thereby  accidentally  to  kill  a  human  being 
is  manslaughter.  If  the  intent  in  the  shooting  were  to  commit  larceny 
of  the  fowls,  we  have  seen  that  it  would  be  murder."  To  same  effect 
is  Estelle  v.  State,  21  N.  J.  Law,  182;  Com.  v.  Adams,  114  Mass. 
323. 

An  offence  malum  in  se  is  properly  defined  as  one  which  is  naturalh' 
evil  as  adjudged  by  the  sense  of  a  civilized  community,  whereas  an  act 
malum  prohibitum  is  wrong  only  because  made  so  by  statute.  For 
the  reason  that  acts  mala  in  se  have,  as  a  rule,  become  criminal  offences 
by  the  course  and  development  of  the  common  law,  an  impression  has 
sometimes  obtained  that  only  acts  can  be  so  classified  wliich  the 
common  law  makes  criminal,  but  this  is  not  at  all  the  test.  An  act 
can  be,  and  frequently  is,  malum,  in  se,  when  it  amounts  onl}'  to  a  civil 
trespass,  provided  it  has  a  malicious  element  or  manifests  an  evil 
nature,  or  wrongful  disposition  to  harm  or  injure  another  in  his  person 
or  property.     Bishop  Cr.  Law,  supra  ;  Com.  v.  Adams,  supra. 

The  distinction  between  the  two  classes  of  acts  is  well  stated  in  19 
Am.  &  Eng.  Enc.  (2nd  ed.),  at  p.  705:  "An  offence  malum  in  se  is 
one  which  is  naturally  evil,  as  murder,  theft,  and  the  like.  Offences  at 
common  law  are  generalh'  malum  in  se.  An  offence  malum  proliibi- 
tum,  on  the  contrary,  is  not  naturally  an  evil,  but  becomes  so  in 
consequence  of  being  forbidden." 

We  do  not  hesitate  to  declare  that  the  offence  of  the  defendant  in 
hunting  on  the  land  without  written  permission  of  the  owner  was 
malum  prohibitum,  and  the  special  verdict  having  found  that  the  act 
in  which  the  defendant  was  engaged  was  not  in  itself  dangerous  to 
human  life,  and  negatived  all  idea  of  negligence,  we  hold  that  the  case 
is  one  of  excusable  homicide,  and  the  defendant  should  be  declared  not 
guilty. 

"We  are  referred  by  the  Attorney-General  to  East's  Pleas  of  the 
Crown,  and  Hale's  Pleas  of  the  Crown,  as  authorities  against  this 
position.  We  w^ould  be  slow  indeed  to  hold  that  the  law  difl["ered  from 
what  these  eminent  authors  declared  it  to  be  in  their  da}'  and  time,  nor 
are  we  required  to  do  so,  for  a  careful  examination  of  their  writings 
will,  we  think,  confirm  the  views  expressed  by  the  court.  My  Lord 
Hale  does  say  in  volume  1,  p.  39,  that  "  If  a  man  do  ex  intentione  an 
unlawful  act,  tending  to  the  bodily  hurt  of  any  person,  as  by  striking  or 
beating  him,  tliough  he  did  not  intend  to  kill  him,  but  the  death  of  the 
party  struck,  follow  thereby  within  the  year  and  day  ;  or  if  he  strike  at 
one  and  missing  him  kill  another  whom  he  did  not  intend,  this  is  felony 
and  homicide,  and  not  casualty*  or  pjer  in/orttmium."  "  So  it  is,  if  he 
be  doing  an  unlawful  act  though  not  intending  bodily  harm  to  any  per- 
son, as  throwing  a  stone  at  another's  horse,  if  it  hit  a  person  and  kill 


^■^Q  STATE  V.   HORTON.  [CHAP.  VI. 

him  this  is  felony  and  homicide,  and  not  per  infortunium,  for  the  act 
was' voluntary,  though  the  event  was  not  intended,  and  therefore  the 
act  itself  being  unlawful,  he  is  criminally  guilty  of  the  consequence  that 

follows."  ,.         ^  4.  Ar--       Ar-a 

But  this  author  says  in  treating  of  the  same  subject,  at  pp.  4  /o,  4  /6  : 
"  So  if  A  throws  a  stone  at  a  bird,  and  the  stone  striketh  and  kiUeth 
another  to  whom  he  intended  no  harm,  it  is^er  infortunium,  but  if  he 
had  thrown  the  stone  to  kill  the  poultry  or  cattle  of  B,  and  the  stone 
hits  and  kills  a  bystander,  it  is  manslaughter  because  the  act  was  un  • 
lawful;  but  not  murder  because  he  did  not  maliciously  or  with  intent 
to  hurt  the  bystander.  ...  By  the  statute  of  33  Henry  VIII,  chap.  6, 
no  person  not  having  lands,  etc.,  of  the  yearly  value  of  one  hundred 
pounds  per  annum  may  keep  or  shoot  a  gun,  upon  pain  of  forfeiture  of 
ten  pounds.  Suppose,  therefore,  such  a  person,  not  qualified,  shoot 
with  a  gun  at  a  bird  or  at  crows,  and  by  mischance  it  kills  a  bystander, 
by  the  breaking  of  the  gun  or  some  other  accident,  that  in  another  case 
would  have  am°ounted  only  to  chance-medley,  this  will  be  no  more  than 
chance-medley  in  him  ;  for  though  the  statute  prohibits  him  to  keep  or 
shoot  a  gun,  yet  the  same  was  but  malum  prohibitum,  and  that  only 
under  a  penalty,  and  will  not  enhance  the  effect  beyond  its  nature." 

Mr.  East,  while  he  gives  an  instance  which  apparently  supports  the 
view  of  the  State,  in  treating  further  on  the  subject  in  volume  1,  p.  255, 
says:  "Homicide  in  the  prosecution  of  some  act  or  purpose  criminal 
or  unlawful  in  itself,  wherein  death  ensues  collaterally  to  or  beside  the 
principal  intent ;  I  say  collaterally  to  or  beside  the  principal  intent  in 
order  to  distinguish  this  kind  of  homicide  from  that  before  treated  of 
under  the  gen°eral  head  of  malice  aforethought,  where  the  immediate 
and  leading°purpose  of  the  mind  was  destruction  to  another.     And  first, 
it  is  principally  to  be  observed  that  if  the  act  on  which  death  ensued  be 
malum  in  se,  it  will  be  murder  or  manslaughter  according  to  the  cir- 
cumstances ;  if  done  in  the  prosecution  of  a  felonious  intent,  however, 
the  death  ensued  against  or  beside  the  intent  of  the  party,  it  will  be 
murder ;  but  if  the  intent  went  no  further  than  to  commit  a  bare  tres- 
pass, it  will  be  manslaughter.     As  where  A  shoots  at  the  poultry  of  B, 
and  by  accident  kills  a  man  ;  if  his  intent  were  to  steal  the  poultry, 
which  must  be  collected  from  circumstances,  it  will  be  murder  by  reason 
of  that  felonious  intent;  but  if  it  were  done  wantonly  and  without  that 
intent,  it  will  be  barely  manslaughter.     A  whips  a  horse  on  which  B  is 
riding,  whereupon  the  horse  springs  out  and  runs  over  a  child  and  kills 
it ;  this  is  manslaughter  in  A  and  misadventure  in  B."     And  again,  at 
page  257  :  "  So  if  one  be  doing  an  unlawful  act,  though  not  intending 
bodily  harm  to  any  person,  as  throwing  at  another's  horse,  if  it  hit  a 
person  and  kill  him,  it  is  manslaughter.     Yet  in  each  case  it  seems  that 
the  guilt  would  rather  depend  on  one  or  other  of  these  circumstances  ; 
either  that  the  act  might  probably  breed  danger  or  that  it  was  done 
with  a  mischievous  intent." 

So  we  have  it,  that  both  Sir  Matthew  Hale  and  Mr.  East,  to  whom 


SECT.  II.]  STATE    V.   HORTOX.  417 

we  were  referred  as  supporting  tlie  claim  of  guilt,  declared  that  the  act 
must  be  malum  in  se,  and  the  instances  given  b}-  them  show  that  these 
writers  had  this  qualification  in  mind  whenever  the}-  state  the  doctrine 
in  more  general  terms. 

Sir  William  Blackstone  also  says  in  volume  4,  pp.  192,  193  :  "And 
in  general  when  an  iuvoluntar}-  killing  happens  in  consequence  of  an 
uulawful  act,  it  will  be  either  murder  or  manslaughter,  according  to  the 
nature  of  the  act  which  occasious  it.  If  it  be  in  prosecution  of  a 
felonious  intent,  or  its  consequences  naturall}'  tended  to  bloodshed,  it 
will  be  murder;  but  if  no  more  was  intended  than  a  mere  civil  trespass, 
it  will  be  manslaughter"  —  citing  Foster's  Criminal  Law.  We  take  it 
that  the  distinguished  commentator  must  have  intended  only  such  civil 
trespasses  as  involve  an  element  malum  in  se,  as  he  cites  Foster's 
Criminal  Law,  and  this  author,  as  we  have  seen,  states  the  qualification 
suggested. 

Again,  we  are  cited  by  the  State  to  an  instance  put  by  East  at 
p.  269  :  •'  But  though  the  weapons  be  of  a  dangerous  nature  yet  if  they 
be  not  directed  by  the  person  using  them  against  each  other,  and  so  no 
danger  to  be  reasonably  apprehended,  and  if  death  casually  ensue,  it  is 
but  manslaughter;  as  if  persons  be  shooting  at  game,  or  butts,  or  any 
other  lawful  object,  and  a  bystander  be  killed.  And  it  makes  no  ditfer- 
ence  with  respect  to  game  whether  the  party  be  qualified  or  not,  but  if 
the  act  be  unlawful  in  itself,  as  shooting  at  deer  in  another's  park  with- 
out leave,  though  in  sport  and  without  any  felonious  intent,  whereby  a 
bystander  is  killed,  it  will  be  manslaughter  ;  but  if  the  owner  had  given 
leave  or  the  party  had  been  shooting  in  his  own  park,  it  would  only 
have  been  misadventure."  Lord  Hale,  at  page  475,  gives  the  same 
instance.  And  it  is  urged  that  this  instance  is  exactly  similar  to  the 
one  before  us,  but  not  so. 

According  to  Sir  William  Blackstone,  in  his  Commentaries,  book  2, 
p.  415:  "For  sometime  prior  to  the  Norman  Conquest,  every  free- 
holder had  the  full  liberty  of  sporting  upon  his  own  territories,  provided 
he  abstained  from  the  king's  forests,  as  is  fully  expressed  in  the  laws 
of  Canute  and  Edward  the  Confessor.  Cuique  enim  in  propria  fundo 
quamUbet  feram  quoqvo  modo  venarl permissumj'  And  further  on  it 
is  said:  ''That  if  a  man  shoots  game  on  another's  private  ground  and 
kills  it  there,  the  property  belongs  to  him  on  whose  ground  it  was 
killed.  The  property  arising  ratione  soli.  ...  On  the  Normau  Con- 
quest, a  new  doctrine  took  place,  and  the  right  of  pursuing  and  taking 
all  beasts  of  chase  or  venary,  and  such  other  animals  as  were  accounted 
game,  was  then  held  to  belong  to  the  king,  or  to  such  only  as  were 
authorized  under  him."  Again:  "But  if  the  king  reserve  to  himself 
the  forests  for  his  own  exclusive  diversion,  so  he  granted  from  time  to 
time  other  tracts  of  land  to  his  subjects  under  the  name  of  chases  or 
parks,  or  gave  them  license  to  make  such  in  their  own  parks.  And,  by 
the  common  law,  no  one  is  at  liberty  to  take  or  kill  any  beast  of  chase 
but  such  as  bath  an  ancient  chase  or  park."     In  Enc.  Britannica  we 

27 


418  STATE   V.   HORTON.     ^,  [CIIAP.  VI. 

read  that  the  chases  or  parks  were  much  the  same,  except  that  the 
parks  were  enclosed,  having  a  tendency  to  make  the  game  contained 
therein  more  completely  and  exclusively  the  property  of  the  owner. 
Anyone  who  entered  them  was  a  trespasser,  and  in  shooting  the  game 
therein,  his  act  can  be  likened  to  that  of  the  case  put  by  Foster,  East, 
and  Lord  Hale,  where  one  wantonly  shot  another's  chicken.  He  was 
engaged  in  the  effort  to  destroy  another's  property,  and  the  act  could 
well  be  considered  malum  in  se.  But  not  so  here.  We  have  never 
transplanted  to  this  country  either  the  Saxon  or  Norman  theory  as  to 
the  right  to  take  and  appropriate  game.  Here,  it  is  considered  the 
property  of  the  captor,  except  perhaps  in  the  case  of  bees. 

It  is  said  in  Cooley  on  Torts:  "As  regards  beasts  of  chase,  the 
English  law  is  that  if  a  hunter  shoots  and  captures  a  beast  on  the  land 
of  another,  the  propert}'  is  in  him  as  in  the  owner  of  the  land.  Under 
the  civil  law,  the  property  passed  to  the  captor.  And  such  is  believed 
to  be  the  recognized  rule  in  America,  even  wliere  the  capture  has  been 
effected  by  means  of  a  trespass  on  another's  land."  State  v.  House, 
65  N.  C.  315. 

The  act  of  the  defendant,  therefore,  was  not  in  the  effort  to  destroj' 
another's  property,  but  was  strictly  inalian  prohibitum.  State  v.  Vines, 
93  N.  C.  493,  and  State  v.  Dorse}-,  118  Ind.  167,  are  cases  apparently 
opposed  to  our  present  decision,  but  neither  is  really  so.  In  State  v. 
Vines  the  sport  was  imminently  dangerous,  amounting  to  recklessness ; 
and  in  State  v.  Dorse}'  the  element  of  criminal  negligence  was  also 
present,  and  in  this  case  a  State  statute  governing  the  construction  was 
given  much  weight.  Neither  the  one  case  nor  tlie  other  required  any  crit- 
ical examination  of  tlie  doctrine  as  sometimes  stated,  that  an  uninten- 
tional homicide,  occasioned  when  in  the  commission  of  an  unlawful  act, 
is  manslaughter.  The  verdict  in  the  case  before  us  negatives  both  the 
elements  of  guilt  (present  in  tliese  two  cases),  declaring  that  the  act 
was  not  in  itself  dangerous  and  that  the  defendant  was  not  negligent. 

Again,  it  has  been  called  to  our  attention  that  courts  of  the  highest 
authority  have  declared  that  the  distinction  between  malum  prohibitum 
and  malimi  in  se  is  unsound,  and  has  now  entirel}'  disappeared.  Our 
own  court  so  held  in  Sharp  v.  Farmer,  20  N.  C.  255,  and  decisions  to 
the  same  effect  have  been  made  several  times  since.  Said  Ruffin,  C. 
J.,  in  Sharp  v.  Farmer :  "  The  distinction  between  an  act  malum  i?i  se 
and  one  ?nalum  prohibitum  was  never  sound  and  is  entirelj'  disregarded, 
for  the  law  would  be  false  to  itself  if  it  allowed  a  party  through  its  tri- 
bunals to  derive  advantage  from  a  contract  made  against  the  intent  and 
express  provisions  of  the  law."  It  v/ill  be  noted  that  this  decision  was 
on  a  case  involving  the  validity  of  a  contract,  and  the  principle  there 
established  is  undoubtedly  correct.  The  fact,  however,  that  the  judge 
who  delivered  the  opinion  uses  the  words  "  was  never  sound,"  and  that 
other  opinions  to  the  same  effect  use  the  words  "  has  disappeared," 
shows  that  the  distinction  has  existed;  and  it  existed  too  at  a  time 
when  this  feature  in  the  law  of  homicide  was  established.     And  we  are 


SECT.  II.].  STATE    V.    HORTON.  419 

well  assured  that  because  the  courts,  in  administering  the  law  on  the 
civil  side  of  the  docket,  have  come  to  the  conclusion  that  a  principle 
once  established  is  unsound  and  should  be  rejected,  this  should  not  have 
tjtie  effect  of  changing  the  character  of  an  act  from  innocence  to  guilt, 
which  had  its  status  fixed  when  the  distinction  was  recognized  and 
enforced. 

It  was  further  suggested  that  the  homicide  was  one  of  the  very  results 
which  the  statute  was  designed  to  prevent,  and  to  excuse  the  defendant 
would  be  contrary  to  the  policy  of  the  act.  But  tliis  can  hardly-  be 
seriously  maintained.  It  will  be  noted  that  it  was  not  the  owner  of  the 
land  who  was  killed,  but  the  defendant's  comrade  in  the  hunt ;  and  of  a 
certaint}',  if  our  Legislature  thought  that  conduct  like  that  of  the  de- 
fendant was  dangerous  and  the  statute  was  designed  to  protect  human 
life,  some  other  penalty  would  have  been  imposed  than  a  fine  of  "  not 
less  than  five  dollars  and  not  more  than  ten."  It  is  more  reasonable  to 
conclude  that  the  act  in  its  purpose  was  designed  to  prevent  and  sup- 
press petty  trespasses  and  annoyances,  such  as  leaving  open  gates, 
throwing  down  fences,  treading  over  crops,  etc. 

The  special  verdict  having  established  that  the  act  of  the  defendant 
was  entirely  accidental,  it  is  a  relief  that  we  can  declare  him  innocent 
in  accordance  with  accepted  doctrine,  and  that  in  the  case  at  bar  the 
law  can  be  administered  in  mercy  as  well  as  justice.  Quoting  again 
from  that  eminent  judge  and  humane  and  enlightened  man,  Sir  Michael 
Foster:  "And  where  the  rigor  of  law  bordereth  upon  injustice,  mercy 
should,  if  possible,  interpose  in  the  administration.  It  is  not  the  part 
of  the  judges  to  be  perpetuall}'  hunting  after  forfeitures,  where  the 
heart  is  free  from  guilt.  They  are  ministers  appointed  by  the  Crown 
for  the  ends  of  public  justice,  and  should  have  written  on  their  hearts 
the  solemn  engagement  His  Majest}'  is  under  to  cause  law  and  justice 
in  mercy  to  be  executed  in  all  his  judgments."  We  know  that  in  this 
spirit  the  judge  below  dealt  with  the  defendant  and  his  cause  ;  for 
though  the  judgment  of  His  Honor  impelled  him  to  the  conclusion  of 
guilt,  he  imposed  the  lightest  punishment  permissible  for  tlie  offence. 

There  was  error  in  holding  the  defendant  guiltN",  and,  on  the  facts 
declared,  a  verdict  of  not  guilty  should  be  directed  and  the  defendant 
discharged. 

Reversed. 

Walker,  J.,  concurs  in  result  only. 


420 


COMMONWEALTH   V.   MINK.  [pHAP.  VI. 


COMMONWEALTH  v.  MINK. 
Supreme  Judicial  Court  of  Massachusetts.    1877. 

[Reported  123  Massachusetts,  422.] 

Indictment  for  the  murder  of  Charles  Ricker  at  Lowell,  in  the  county 
of  Middlesex,  on  August  31,  1876.  Trial  beibre  Ames  and  Morton,  JJ., 
who  allowed  a  bill  of  exceptions  in  substance  as  follows  :  — 

It  was  proved  that  Charles  Riclier  came  to  his  death  by  a  shot  from 
a  pistol  in  the  hand  of  the  defendant.  The  defendant  introduced  evi- 
dence tending  to  show  that  she  had  been  engaged  to  be  married  to 
Riclier ;  that  an  interview  was  had  between  them  at  her  room,  in  the 
course  of  which  he  expressed  his  intention  to  break  off  the  engagement 
and  abandon  her  entirely  ;  that  she  thereupon  went  to  her  trunk,  took 
a  pistol  from  it,  and  attempted  to  use  it  upon  herself,  with  the  intention 
of  taking  her  own  life  ;  that  Ricker  then  seized  her  to  prevent  her  from 
accomplishing  that  purpose,  and  a  struggle  ensued  between  them ;  and 
that  in  the  struggle  the  pistol  was  accidentally  discharged,  and  in  that 
way  the  fatal  wound  inflicted  upon  him. 

The  jury  were  instructed  on  tliis  point  as  follows:  "If  j'ou  believe 
the  defendant's  story,  and  that  she  did  put  the  pistol  to  her  head  with 
the  intention  of  committing  suicide,  she  was  about  to  do  a  criminal 
and  unlawful  act,  and  that  which  she  had  no  right  to  do.  It  is  true, 
undoubtedly,  that  suicide  cannot  be  punished  by  any  proceeding  of  the 
courts,  for  the  reason  that  the  person  who  kills  himself  has  placed  him- 
self beyond  the  reach  of  justice,  and  nothing  can  be  done.  But  the 
law,  nevertheless,  recognizes  suicide  as  a  criminal  act,  and  the  attempt 
at  suicide  is  also  criminal.  It  would  be  the  duty  of  any  bystander  who 
saw  such  an  attempt  about  to  be  made,  as  a  matter  of  mere  humanity, 
to  interfere  and  tiy  to  prevent  it.  And  the  rule  is,  that  if  a  liomicide 
is  produced  by  the  doing  of  an  unlawful  act,  although  the  killing  was 
the  last  thing  that  the  person  about  to  do  it  had  in  his  mind,  it  would 
be  an  unlawful  killing,  and  the  person  would  incur  the  responsibility 
which  attaches  to  the  crime  of  manslaughter. 

"Then  you  are  to  inquire,  among  other  things,  and  if  jon  reach  that 
part  of  the  case.  Did  this  woman  attempt  to  commit  suicide  in  the  pres- 
ence of  Ricker?  and,  if  she  did,  I  shall  have  to  instruct  you  that  he  would 
have  a  right  to  interfere  and  try  to  prevent  it  by  force.  He  would  have 
a  perfect  right,  and  I  think  I  might  go  further  and  say  that  it  would  be 
his  duty,  to  take  the  pistol  away  from  her  if  he  possibly  could,  and  to 
use  force  for  that  purpose.  If  then,  in  the  course  of  the  struggle  on 
his  part  to  get  possession  of  the  pistol  to  prevent  the  person  from  com- 
mitting suicide,  the  pis-tol  went  off  accidentally,  and  he  lost  his  life  in 
that  way,  it  would  be  a  case  of  manslaughter,  and  it  would  not  be  one 
of  those  accidents  which  would  excuse  the  defendant  from  being  held 
criminall}'  accountable. 


SECT,  II.]  COMMONWEALTH   V.    MINK.  421 

"  Did  she  get  into  sucli  a  condition  of  despondency  and  disappoint- 
ment tliat  she  was  trying  to  commit  suicide,  and  was  about  to  do  so? 
If  that  was  her  condition,  if  she  Avas  making  that  attempt,  and  lie  inter- 
fered to  prevent  it  and  got  injured  by  an  accidental  discharge  of  the 
pistol,  it  would  be  manslaughter."  The  jury  returned  a  verdict  of  guilty 
of  manslaughter  ;  and  the  defendant  alleged  exceptions. 

Gray,  C.  J.^  The  life  of  every  human  being  is  under  the  protection 
of  the  law,  and  cannot  be  lawfully  taken  by  himself,  or  by  another  with 
his  consent,  except  by  legal  authority.  By  the  common  law  of  Eng- 
land, suicide  was  considered  a  crime  against  the  laws  of  God  and  man, 
the  lands  and  chattels  of  the  criminal  were  forfeited  to  the  King,  his 
body  had  an  ignominious  burial  in  the  highway,  and  he  was  deemed  a 
murderer  of  himself  and  a  felon, /Wo  de  se.  Hales  v.  Petit,  Plowd.  253, 
2G1  ;  3  Inst.  54;  1  Hale  P.  C.  411-417;  2  Hale  P.  C.  62;  1  Hawk, 
c.  27  ;  4  Bl.  Com.  95,  189,  190.  "  He  who  kills  another  upon  his  desire 
or  command  is,  in  the  judgment  of  the  law,  as  much  a  murderer  as  if 
he  had  done  it  merely  of  his  own  head."  1  Hawk.  c.  27,  s.  G.  One 
who  persuades  another  to  kill  himself,  and  is  present  when  he  does  so, 
is  guilty  of  murder  as  a  principal  in  the  second  degree  ;  and  if  two 
mutually  agree  to  kill  themselves  together,  and  the  means  employed  to 
produce  death  take  effect  upon  one  only,  the  survivor  is  guilty  of  the 
murder  of  the  one  who  dies.  Bac.  Max.  reg.  15  ;  Rex  v.  Dyson,  Russ. 
&  Ry.  523  ;  Regina  v.  Alison,  8  Car.  &  P.  418.  One  who  encourages 
another  to  commit  suicide,  but  is  not  present  at  the  act  which  causes 
the  death,  is  an  accessory  before  the  fact,  and  at  common  law  escaped 
punishment  only  because  his  principal  could  not  be  first  tried  and  con- 
victed. Russell's  case,  1  Mood\',  356  ;  Regina  v.  Leddington,  9  Car. 
&  P.  79.  And  an  attempt  to  commit  suicide  is  held  in  England  to  be 
punishable  as  a  misdemeanor.  Regina  v.  Dood}',  6  Cox  C.  C.  463  ; 
Regina  v.  Burgess,  Leigh  &  Cave,  258  ;  s.  c.  9  Cox  C.  C.  247. 

Suicide  has  not  ceased  to  be  unlawful  and  criminal  in  this  Common- 
wealth by  the  simple  repeal  of  the  Colony  Act  of  1660  by  the  St.  of 
1823,  c.  143,  which  (like  the  corresponding  St.  of  4  G.  IV.  c.  52,  enacted 
by  the  British  Parliament  within  a  year  before)  may  well  have  had  its 
origin  in  consideration  for  the  feelings  of  innocent  surviving  relatives  ; 
nor  by  the  briefer  directions  as  to  the  form  of  coroners  inquests  in  the 
Rev.  Sts.  c.  140,  s.  8,  and  the  Gen.  Sts.  c.  175,  s.  9,  which  in  this,  as  in 
most  other  matters,  have  not  repeated  at  length  the  forms  of  legal  pro- 
ceedings set  forth  in  the  statutes  codified;  nor.b}'  the  fact  that  the 
Legislature,  having  in  the  general  revisions  of  the  statutes  measured 
the  degree  of  punishment  for  attempts  to  commit  offences  by  the  punish 
ment  prescribed  for  each  offence  if  actually  committed,  has,  intentionally 
OT  inadvertently,  left  the  attempt  to  commit  suicide  without  punishment, 
because  the  completed  act  would  not  be  punished  in  any  manner.  Rev. 
Sts.  c.  133,  s.  12  ;  Gen.  Sts.  c.  168,  s.  8  ;   Commonwealth  v.  Dennis, 

1  Arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


422 


NEGLIGENCE. 


[chap.  VI. 


105  Mass.  162.  After  all  these  changes  in  the  statutes,  the  point  decided 
in  Bowen's  case  was  ruled  in  the  same  way  b}-  Chief  Justice  Bigelow 
and  Justices  Dewey,  Metcalf,  and  Chapman,  in  a  case  which  has  not 
been  reported.     Commonwealth  v.  Pratt,  Berkshire,  1862. 

Since  it  has  been  provided  by  statute  that  "any  crime  punishable  by 
death  or  imprisonment  in  the  state  prison  is  a  felon}',  and  no  other 
crime  shall  be  so  considered,"  it  may  well  be  that  suicide  is  not  techni- 
callj'  a  felony  in  this  Commonwealth.  Gen.  Sts.  c.  168,  s.  1  ;  St.  1852, 
c.  37,  s.  1.  But  being  unlawful  and  criminal  as  mahim  in  se,  any 
attempt  to  commit  it  is  likewise  unlawful  and  criminal.  Every  one  has 
the  same  right  and  duty  to  interpose  to  save  a  life  from  being  so  unlaw- 
fully and  criminally  taken  that  he  would  have  to  defeat  an  attempt 
unlawfully  to  take  the  life  of  a  third  person.  Fairfax,  J.,  in  22  PI  IV. 
45,  pi.  10  ;  Marler  v.  Ayliffe,  Cro.  Jac.  134  ;  2  Rol.  Ab.  559  ;  1  Hawk, 
c.  60,  s.  23.  And  it  is  not  disputed  that  any  person  who,  in  doing  or 
attempting  to  do  an  act  which  is  unlawful  and  criminal,  kills  another, 
though  not  intending  his  death,  is  guilty  of  criminal  homicide,  and,  at 
the  least,  of  manslaughter. 

The  only  doubt  that  we  have  entertained  in  this  case  is,  whether  the 
act  of  the  defendant,  in  attempting  to  kill  herself,  was  not  so  malicious, 
in  the  legal  sense,  as  to  make  the  killing  of  another  person,  in  the 
attempt  to  carrj'  out  her  purpose,  murder,  and  whether  the  instructions 
given  to  the  jury  were  not  therefore  too  favorable  to  the  defendant. 

Exceptions  overruled. 


¥!" 


SECTION  III. 

The  mens  rea: 
Negligence. 


«\ 


Foster,  Crown  Law,  262.  It  is  not  sufficient  that  the  act  upon  which 
death  ensueth  be  lawful  or  innocent,  it  must  be  done  in  a  proper  manner 
and  with  due  caution  to  prevent  mischief.     Parents,  master,  and  other 


SECT.  III.]  NEGLIGENCE.    •  423 

persons  having  authorit}'  in  for o  domestico,  ma}-  give  reasonable  correc- 
tion to  those  under  their  care  ;  and  if  death  ensueth  without  their  fault, 
it  wilLbe  no  more  tlian  accidental  death.  But  if  the  correction  exceedeth 
the  bounds  of  due  moderation,  either  in  the  measure  of  it  or  in  the  instru- 
ment made  use  of  for  that  purpose,  it  will  be  either  murder  or  manslaughter 
according  to  the  circumstances  of  the  case.  If  with  a  cudgel  or  other 
thing  not  likelj'  to  kill,  though  improper  for  the  purpose  of  correction, 
manslaughter.  If  with  a  dangerous  weapon  likely  to  kill  or  maim,  due 
regard  being  always  had  to  the  age  and  strength  of  the  part}-,  murder. 

This  rule  touching  due  caution  ought  to  be  well  considered  by  all 
persons  following  their  lawful  occupations,  especially  such  from  whence 
danger  may  probably  arise. 

Workmen  throw  stones,  rubbish,  or  other  things  from  an  house  in  the 
ordinary  course  of  their  business,  by  which  a  person  underneath  hap- 
peneth  to  be  killed.  If  the}'  look  out  and  give  timely  warning  beforeliand 
to  those  below,  it  will  be  accidental  death.  If  without  such  caution,  it 
will  amount  to  manslaughter  at  least.  It  was  a  lawful  act,  but  done  in 
an  improper  manner, 

I  need  not  state  more  cases  by  way  of  illustration  under  this  head  ; 
these  are  sufficient.  But  I  cannot  pass  over  one  reported  by  Kelyng 
(Kel.  41),  because  I  think  it  an  extremely  hard  case,  and  of  very  exten- 
sive influence.  A  man  found  a  i)istol  in  the  street,  which  he  had  reason 
to  believe  was  not  loaded,  having  tried  it  with  the  rammer;  he  carried 
it  home  and  showed  it  to  his  wife  ;  and  she  standing  before  him  he 
pulled  up  the  cock,  and  touched  the  trigger.  The  pistol  went  off  and 
killed  the  woman.    This  was  ruled  manslaughter. 

It  appeareth  that  the  learned  editor^  was  not  satisfied  with  the  judg- 
ment. It  is  one  of  the  points  he  in  the  preface  to  the  report  recom- 
mendeth  to  farther  consideration. 

Admitting  that  the  judgment  was  strictly  legal,  it  was,  to  say  no 
better  of  it,  siannium  Jus. 

The  law  in  these  cases  doth  not  require  the  utmost  caution  that  can 
be  used  ;  it  is  sufficient  that  a  reasonable  precaution,  what  is  usual  and 
ordinary  in  the  like  cases,  be  taken.  In  the  case  just  mentioned  of 
workmen  throwing  rubbish  from  buildings,  the  ordinary  caution  of  look- 
ing out  and  giving  warning  by  outcry  from  above  will  excuse,  though 
doubtless  a  better  and  more  etfectual  warning  might  have  been  given. 
But  this  excuseth,  because  it  is  what  is  usually  given,  and  hath  been 
found  by  long  experience,  in  the  ordinary  course  of  things,  to  answer 
the  end.  Tlie  man  in  the  case  under  consideration  examined  the  pistol 
in  the  common  way  ;  perhaps  the  rammer,  which  he  had  not  tried  before, 
was  too  short  and  deceived  him.  But  having  used  the  ordinary  caution, 
found  to  have  been  effectual  in  the  like  cases,  he  ought  to  have  beeu 
excused. 

^•Chief  Justice  Holt. 


424  BEGIN  A   V.   CHAMBEELAIN.  [cHAP.  VI. 

I  have  been  the  longer  upon  this  case,  because  accidents  of  this 
lamentable  kind  may  be  the  lot  of  the  wisest  and  the  best  of  mankind, 
and  most  commonly  fall  among  the  nearest  friends  and  relations  ;  and 
in  such  a  case  the  forfeiture  of  goods,  rigorously  exacted,  would  be 
heaping  affliction  upon  the  head  of  the  afflicted,  and  gaUing  an  heart 
already  wounded  past  cure.  It  would  even  aggravate  the  loss  of  a 
brother,  a  parent,  a  child,  or  wife,  if  such  a  loss  under  such  circum- 
stances is  capable  of  aggravation. 

I  once  upon  the  circuit  tried  a  man  for  the  death  of  his  wife  by  the 
like  accident.  Upon  a  Sunday  morning  the  man  and  his  wife  went  a 
mile  or  two  from  home  with  some  neighbors  to  take  a  dinner  at  the 
house  of  their  common  friend.  He  carried  his  gun  with  him,  hoping 
to  meet  with  some  diversion  by  the  way  ;  but  before  he  went  to  dinner 
he  discharged  it,  and  set  it  up  in  a  private  place  in  his  friend's  house. 
After  dinner  he  went  to  church,  and  in  the  evening  returned  home  with 
his  wife  and  neighbors,  bringing  his  gun  with  him,  which  was  carried 
into  the  room  where  his  wife  was,  she  having  brought  it  part  of  the  way. 
He  taking  it  up  touched  the  trigger,  and  the  gun  went  off  and  killed  his 
wife,  whom  he  dearly  loved.  It  came  out  in  evidence  that,  while  the 
man  was  at  church,  a  person  belonging  to  the  family  privately  took  the 
gun,  charged  it  and  went  after  some  game  ;  but  before  the  service  at 
church  was  ended  returned  it  loaded  to  the  place  whence  he  took  it, 
and  where  the  defendant,  who  was  ignorant  of  all  that  had  passed, 
found  it,  to  all  appearance  as  he  left  it.  I  did  not  inquire  whether  the 
poor  man  had  examined  the  gun  before  he  carried  it  home  ;  but  being 
of  opinion  upon  the  whole  evidence,  that  he  had  reasonable  grounds  to 
believe  that  it  was  not  loaded,  I  directed  the  jury,  that  if  they  were  of 
the  same  opinion  they  should  acquit  him.    And  he  was  acquitted. 


^^7 . 


EEGINA  V.  CHAMBERLAIN. 
Hertford  Assizes.     1867. 

[Reported  10  Cox  C.  C.  486.] 

Indictment  for  manslaughter. 

The  prisoner  had  resided  for  many  years  in  Hertford,  carrying  on  the 
business  of  a  herbalist,  and  he  was  also  what  was  called  a  "  quack  doc- 
tor." The  deceased  woman  had  for  some  years  a  tumor  on  her  shoulder, 
and  in  March,  1866,  she  consulted  the  prisoner,  who  gave  her  first  a 
mercurial  ointment,  to  which  no  objection  was  taken.  After  this,  liow- 
ever,  it  was  said  he  gave  her  a  different  ointment,  which  was  arsenical, 
and  this  it  was  suggested  had  caused  her  death  by  being  absorbed  into 
the  system.  The  case  for  the  prosecution  was  that  she  became  worse 
after  she  used  this  ointment,  that  is  to  say,  in  August,  186G  ;  that  she 


SECT.  III.]  EEGINA   V.   CHAMBERLAIN.  425 

suffered  from  arsenical  S3'mptoms  ;  and  that  her  death,  which  happened 
in  September,  was  owing  to  this  cause.  It  was  not  disputed  that  she 
died  with  the  sj'mptoms  of  arsenic,  nor  that  there  was  arsenic  in  the 
ointment  she  used  ;  the  real  question  in  the  case  was  whether  there  was 
'*  culpable  negligence  "  on  the  part  of  the  prisoner  in  giving  it  without 
due  precautions.  That  being  the  question  in  the  case,  it  turned  a  good 
deal  upon  the  medical  evidence  as  to  the  use  of  arsenic  in  ointments. 
As  to  this  Dr.  Taylor  admitted  that  it  was  used  upon  the  Continent, 
and  that  it  had  been  used  in  this  country  until  within  the  last  thirt}^ 
years,  when  he  said  it  was  discovered  that  it  was  absorbed  into  the  s^s- 
tem,  and  it  was  discontinued  in  this  country,  though  it  still  was  used 
upon  the  Continent.  The  foreign  practitioners,  he  said,  were  a  little 
more  given  to  a  bold  system  in  cases  apparently  hopeless,  and  a  little 
more  disposed  to  what  he  called  "  heroic"  treatment  —  that  is  to  say, 
treatment  in  which  the  medical  practitioner  for  the  sake  of  the  patient 
runs  some  rislc  —  than  our  English  practitioners,  who,  he  intimated, 
were  rather  more  cautious  in  sucli  cases.  Another  point  on  which  the 
case  turned  was  as  to  the  prisoner  not  having  warned  the  deceased  of 
the  necessar}'  effect  of  the  arsenic  when  absorbed  into  the  system.  It 
did  not  appear  that  he  had  given  any  particular  directions  beyond  tell- 
ing her  to  "rub  some  of  the  ointment  in  ;"  and  the  woman,  naturally 
thinking  that  the  more  she  rubbed  the  better,  had  rubbed  and  rubbed 
until  she  had  absorbed  so  much  of  the  poison  that  she  died  ;  and  the 
prisoner  had  sold  her  another  box  without,  as  it  appeared,  making  any 
observation  as  to  the  effect  of  the  first. 

Parry,  Serjt.,  for  the  prisoner,  contended  that  it  was  a  case  of  a 
mere  blunder  or  error,  and  not  a  case  of  negUgence  so  culpable  as  to 
be  criminal. 

Blackburn,  J.,  to  the  jur}'.  If  the  prisoner  b}-  culpable  negligence 
had  caused  the  death  of  the  deceased  woman,  he  was  guilty  of  man- 
slaughter ;  but  the  mere  fact  that  death  had  occurred  through  mistake 
or  misfortune  would  not  be  enough,  or  no  medical  man  would  be  safe. 
There  must,  however,  be  competent  knowledge  and  care  in  dealing  with 
a  dangerous  drug,  and  if  the  man  either  was  ignorant  of  the  nature  of 
the  drug  he  used  or  was  guilty  of  gross  want  of  care  in  its  use,  there 
would  be  criminal  culpabilit}'.  In  the  one  case  there  would  be  culpable 
rashness  in  using  so  dangerous  a  drug  in  ignorance  of  its  operation  ;  in 
the  other  case  there  would  be  culpable  want  of  care  or  culpable  care- 
lessness in  the  use  of  the  drug ;  and  in  either  case  that  would  be  culpa- 
ble and  criminal  negligence,  which  would  justify  a  conviction,  supposing 
the  jury  were  satisfied  that  the  death  arose  from  the  arsenic.  The  first 
question  was,  whether  the  death  was  caused  by  the  arsenic  administered 
by  the  prisoner ;  upon  which,  however,  he  thought  the  evidence  very 
strong.  The  real  question  would  be  whether  there  was  culpable  negli- 
gence, which  lesolved  itself  into  the  two  questions  he  had  explained. 
He  could  not  define  the  nature  of  "  culpable  negligence"  otherwise  than 
as  he  had  described  it.     It  was  a  question  for  the  jury,  for  it  was  a 


426  REGINA   V.    SALMON.  [CHAP.  VI. 

question  of  degree.  It  was  a  question  of  more  or  less,  and  it  could  not 
be  defined.  All  the  direction  he  could  give  them  was  that  if  the  prisoner 
administered  the  arsenic  without  knowing  or  taking  the  pains  to  find  out 
what  its  effect  would  be,  or  if  knowing  this,  he  gave  it  to  the  patient  to 
be  used  without  giving  her  adequate  directions  as  to  its  use,  there  would 
in  either  view  of  the  case  be  culpable  negligence,  and  the  prisoner  ought 
to  be  convicted  ;  but  if  otherwise,  there  would  not  be  such  negligence, 
and  the  prisoner  ought  to  be  acquitted.  The  most  serious  part  of  the 
case  was  in  the  apparent  absence  of  caution  or  directions  to  the  woman 
as  to  the  use  of  the  arsenical  ointment,  the  effect  of  which,  as  was  well 
known,  was  that  it  would  be  absorbed  into  the  system  so  as  to  cause 
death.  It  was  said  that  foreign  doctors  used  it,  but  if  so  it  might  be 
presumed  that  they  watched  its  use  with  care.  It  appeared  to  him  that 
a  medical  man  who  should  administer  such  a  drug  or  allow  a  patient  to 
apply  it  without  taking  any  care  to  observe  its  eflfects  or  guard  against 
them,  would  be  gravely  wanting  in  due  care.  Whether  under  the  cir- 
cumstances it  amounted  to  culpable  negligence  was,  he  repeated,  for 
the  jury.  JSfot  guilty.^ 


REGINA  V.  SALMON. 
Crown  Case  Reserved.     1880. 

[Reported  14  Cox  C.  C.  494.] 

Case  reserved  for  the  opinion  of  this  court  b}'  Lord  Coleridge,  C.  J., 
at  the  Summer  Assizes  at  Wells,  1880. 

The  three  prisoners  were  tried  for  the  manslaughter  of  William  Wells, 
a  little  boy  often  years  old.  The  prisoners  went  into  a  field,  and  each 
fired  a  shot  from  a  rifle  at  a  target.  One  of  the  shots  killed  the  deceased, 
who  was  at  the  time  in  a  tree  in  his  father's  garden,  distant  about  four 
hundred  3'ards  from  the  spot  where  the  shot  was  fired.  The  rifle  was 
sighted  for  nine  hundred  and  fifty  ^-ards,  and  would  probably  be  deadl}' 
at  a  mile.  It  did  not  appear  which  one  of  the  prisoners  fired  the  fatal 
shot.2 

No  counsel  appeared  to  argue  on  behalf  of  the  prisoners. 

Norris  for  the  prosecution.  The  prisoner  who  fired  the  fatal  shot 
was  clearly  guilt}'  of  manslaughter,  but  the  evidence  of  his  identity  not 
being  clear,  the  rule  that  all  persons  engaged  in  a  common  enterprise 
are  jointly  liable  will  apply.  All  the  prisoners  went  into  the  field  for 
a  common  purpose,  rifle  practice  ;  and  it  was  their  dut\'  to  take  all 
proper  precautions  to  prevent  any  danger  to  other  persons.  The  plan 
attached  to  the  case  shows  that  they  fired  across  three  highways,  and 

1  Ace.  Reg  V.  Macleod,  12  Cox  C.  C.  534;  State  v.  Hardister,  .38  Ark.  605.  — Ed. 

2  ThiB  statemeut  of  the  case  is  condensed  from  the  report  of  Lord  Coleridge. 
—  Ed, 


if\ 


SECT.  III.]  EEGINA   V.   NICHOLLS.  42? 

that  they  were  firing  too  near  to  the  neighboring  gardens,  in  one  of 
which  the  deceased  boy  was. 

LoKU  CoLEKiuGE,  C.  J.  I  am  of  opinion  that  the  conviction  was 
right  and  ought  to  be  affirmed.  If  a  person  does  a  thing  which  in  itself 
is  dangerous,  and  without  taking  proper  precautions  to  prevent  danger 
arising,  and  if  he  so  does  it  and  kills  a  person,  it  is  a  criminal  act  as 
against  that  person.  That  would  make  it  clearly  manslaughter  as 
regards  the  prisoner  whose  shot  killed  the  boy.  It  follows  as  the  result 
of  the  culpable  negligence  of  this  one,  that  each  of  the  prisoners  is 
answerable  for  the  acts  of  the  others,  they  all  being  engaged  in  one 
common  pursuit. 

Field,  J.  I  am  of  the  same  opinion.  At  first  I  thought  it  was  ne- 
cessary to  show  some  duty  on  the  part  of  the  prisoners  as  regards  the 
boy,  but  I  am  now  satisfied  that  there  was  a  duty  on  the  part  of  the 
prisoners  towards  the  pubUc  generally  not  to  use  an  instrument  likely 
to  cause  death  without  taking  due  and  proper  precautions  to  prevent 
injury  to  the  public.  Looking  at  the  character  of  the  spot  where  the 
firing  took  place,  there  was  sufficient  evidence  that  all  three  prisoners 
were  guilty  of  culpable  negligence  under  the  circumstances. 

LoPEs,  J.,  concurred. 

Stephen,  J.  I  am  of  opinion  that  all  three  prisoners  were  guilty  of 
manslaughter.  The  culpable  omission  of  a  duty  which  tends  to  preserve 
life  is  homicide  ;  and  it  is  the  duty  of  every  one  to  take  proper  precau- 
tions in  doing  an  act  which  may  be  dangerous  to  life.  In  this  case  the 
firing  of  the  rifle  was  a  dangerous  act,  and  all  three  prisoners  were 
jointly  responsible  for  not  taking  proper  precautions  to  prevent  the 
danger. 

Watkin  Williams,  J.,  concurred.  Conviction  affirmed. 


EEGINA  V.  NICHOLLS. 
Stafford  Assizes.     1875. 

[Reported  13  Cox  C.  C.  75.] 

Prisoner  was  indicted  for  the  manslaughter  of  Charles  Nicholls. 

A.  Young  prosecuted. 

The  prisoner  was  the  grandmother  of  the  deceased,  an  infant  of 
tender  years,  said  to  have  died  from  the  neglect  of  the  prisoner  to 
supply  it  with  proper  nourishment.  She  was  a  poor  woman,  and  in 
order  to  earn  her  livelihood  was  out  the  greater  part  of  the  day.  The 
deceased  was  the  child  of  the  prisoner's  daughter.  The  daughter  was 
dead,  and  therefore  the  prisoner  took  charge  of  the  child,  and  while 
away  from  home  left  it  to  the  sole  care  of  a  boy  of  nine  years.  The 
cause  of  death  was  emaciation,  probably  resulting  from  want  of  food. 


428  EEGINA   V.  NICHOLLS.  [CHAP.  VI. 

The  facts  will  be  found  more  particularly^  stated  in  the  summing  up  of 
the  learned  judge. 

At  the  close  of  the  case  for  the  prosecution,  Brett,  J.,  asked  what 
was  the  neglect  charged. 

A.  Young.  Leaving  the  child  in  the  sole  custody  of  so  young  a  boy 
during  many  hours  of  the  day. 

Brett,  J.,  to  the  jury.  This  woman  is  charged  with  manslaughter 
under  somewhat  peculiar  circumstances.  She  was  the  grandmother  of 
the  deceased  infant,  and  not  bound  by  law  to  take  care  of  it.  She 
might  have  sent  the  child  to  the  workhouse,  but  did  not  do  so.  If  a 
grown  up  person  chooses  to  undertake  the  charge  of  a  human  creature, 
helpless  either  from  infancy,  simplicity,  lunacy,  or  other  infirmity,  he  is 
bound  to  execute  that  charge  without,  at  all  events,  vncked  negligence ; 
and  if  a  person  who  has  chosen  to  take  charge  of  a  helpless  creature 
lets  it  die  by  wicked  negligence,  that  person  is  guilty  of  manslaughter. 
Mere  negligence  will  not  do  ;  there  must  be  wicked  negligence,  that  is, 
negligence  so  great  that  you  must  be  of  opinion  that  the  prisoner  had 
a  wicked  mind,  in  the  sense  that  she  was  reckless  and  careless  whether 
the  creature  died  or  not.  We  must  judge  of  all  these  things  according 
to  the  state  and  condition  of  the  persons  concerned.  Here  was  an  old 
woman  left  in  a  difficult  position.  The  child  was  probably  illegitimate. 
Its  mother,  who  was  the  prisoner's  daughter,  had  died,  and  would  not 
probably  have  suckled  it  for  some  days  before  her  death.  The  child 
was  small  and  weakly.  It  might,  perhaps,  have  lived.  What,  however, 
was  the  prisoner  to  do?     It  is  said  that  she  had,  through  her  own  mis-  v^ 

conduct,  fallen  into  bad  circumstances  ;  that  she  was  addicted  to  drink, 
and  that  her  furniture  had  been  seized.  She  was  out  all  day  collecting 
rags  and  bones.  Wliat  ought  she  to  have  done  with  respect  to  the 
child  ?  The  prosecution  say  that  she  ought  to  have  sent  it  to  the  parish 
authorities.  Perhaps  she  ought.  But  she,  like  others,  might  be  full  of 
prejudice,  and  dislike  to  send  it  there.  So  her  omission  to  send  it  is 
not  sufficient ;  for,  as  I  have  pointed  out,  there  must  be  wicked  negli- 
gence on  her  part.  Then  she  must  go  out  to  work.  She  could  not  find 
any  one  else,  for  she  had  no  means,  so  she  got  a  son  of  nine  years  old 
to  look  to  the  infant.  She  may  have  been  very  careless,  but  the  ques- 
tion is,  was  she  wickedly  careless?  She  was  in  fault,  for  she  ought  not 
to  have  been  away  so  many  hours  at  a  time  ;  and  no  doubt  you  will 
think  that  it  was  that  that  caused  the  death  of  the  child.  The  boy  was 
careless,  but  it  appears  that  the  old  woman  certainly  did  have  food  in 
the  house.  Suppose  she  told  the  boy  to  feed  the  baby,  and  left  food 
wherewith  to  feed  it  ?  Still  she  would  be  careless,  for  she  ought  to 
have  returned  home  to  see  that  he  did  so.  It  is  very  right  that  this 
case  should  be  inquired  into,  and  that  the  neighbors  should  look  into 
it,  but  nevertheless  it  is  right  that  we  should  consider  the  circumstances 
of  the  prisoner  in  order  to  determine  whether  she  has  been  guilty  of 
such  carelessness  as  I  have  defined. 

Ve7'dict,  Not  guilty. 


SECT.  III.]  COMMONWEALTH   V.   PIERCE.  429 

COMMONWEALTH  v.  PIERCE. 
Supreme  Judicial  Court  of  Massachusetts.     1884. 

[Reported  138  Mass.  165.] 

Holmes,  J.  The  defendant  has  been  found  guilty  of  manslaughter, 
on  evidence  that  he  public)}'  practised  as  a  physician,  and,  being  called 
to  attend  a  sick  woman,  caused  her,  with  her  consent,  to  be  kept  in 
flannels  saturated  with  kerosene  for  three  days,  more  or  less,  b}'  reason 
of  which  she  died.  There  was  evidence  that  lie  had  made  similar  appli- 
cations with  favorable  results  in  other  cases,  but  that  in  one  the  effect 
had  been  to  blister  and  burn  the  flesh  as  in  the  present  case. 

The  main  questions  which  have  been  argued  before  us  are  raised  by 
the  fifth  and  sixth  rulings  requested  on  behalf  of  the  defendant,  but 
refused  b}-  the  court,  and  by  the  instructions  given  upon  the  same 
matter.  The  fifth  request  was,  shortly,  that  the  defendant  must  have 
"  so  much  knowledge  or  probable  information  of  the  fatal  tendency  of 
the  prescription  that  [the  death]  may  be  reasonably  presumed  b}-  the 
jury  to  be  the  effect  of  obstinate,  wilful  rashness,  and  not  of  an  honest 
intent  and  expectation  to  cure."  The  seventh  request  assumes  the  law 
to  be  as  thus  stated.  The  sixth  request  was  as  follows:  "If  the  de- 
fendant made  the  prescription  with  an  honest  purpose  and  intent  to 
cure  the  deceased,  he  is  not  guilty  of  this  offence,  however  gross  his 
ignorance  of  the  quality  and  tendency  of  the  remedy  prescribed,  or  of 
the  nature  of  the  disease,  or  of  both."  The  eleventh  request  was  sub- 
stantially similar,  except  tliat  it  was  confined  to  this  indictment. 

The  court  instructed  the  jury  that  "it  is  not  necessary  to  show  an 
evil  intent;"  that,  "if  by  gross  and  reckless  negligence  he  caused  the 
death,  he  is  guilty  of  culpable  homicide  ;  "  that  "  the  question  is  whether 
the  kerosene  (if  it  was  the  cause  of  the  death),  either  in  its  original 
application,  renewal,  or  continuance,  was  applied  as  the  result  of  fool- 
hardy presumption  or  gross  negligence  on  the  part  of  the  defendant;" 
and  that  the  defendant  was  "to  be  tried  b}-  no  other  or  higiier  stand- 
ard of  skill  or  learning  than  that  which  he  necessarilj'  assumed  in  treat- 
ing her ;  that  is,  that  he  was  able  to  do  so  without  gross  recklessness 
or  foolhardy  presumption  in  undertaking  it."  In  other  words,  that  the 
defendant's  duty  was  not  enhanced  by  any  express  or  implied  contract, 
but  that  he  was  bound  at  his  peril  to  do  no  grossly  reckless  act  v/hen, 
in  the  absence  of  any  emergency  or  other  exceptional  circumstances, 
he  intermeddled  with  the  person  of  another. 

The  defendant  relies  on  the  case  of  Commonwealth  v.  Thompson,  6 
Mass.  134,  from  which  his  fiftli  request  is  quoted  in  terms.  His  argu- 
ment is  based  on  another  quotation  from  the  same  opinion:  "To  con- 
stitute manslaughter,  the  killing  must  have  been  a  consequence  of  some 
unlawful  act.  Now,  there  is  no  law  which  prohibits  any  man  from 
prescribing  for  a  sick  person  with  his  consent,  if  he  honestly  intends  to 


430  COMMONWEALTH  V.    PIERCE.  [CHAP.  VI. 

cure  him  by  his  prescription."  This  language  is  ambiguous,  and  we 
must  begin  by  disposing  of  a  doubt  to  wlilcli  it  might  give  rise.  If  it 
means  that  the  killing  must  be  the  consequence  of  an  act  which  is  un- 
lawful for  independent  reasons  apart  from  its  likelihood  to  kill,  it  is  - 
wrono-.  Such  may  once  have  been  the  law,  but  for  a  long  time  it  has 
been°just  as  fully,  and  latterly,  we  may  add,  much  more  willingly,  rec- 
ognized that  a  man  may  commit  murder  or  manslaughter  by  doing 
otherwise  lawful  acts  recklessly,  as  that  he  may  by  doing  acts  unlawful 
for  independent  reasons,  from  which  death  accidentally  ensues.  3  Inst. 
57  ;  1  Hale  P.  C.  472-477  ;  1  Hawk.  P.  C,  c.  29,  §§  3,  4,  12  ;  c.  31, 
§§  4-6  ;  Foster,  262,  263  (Homicide,  c.  1,  §  4)  ;  4  Bl.  Cora.  192,  197  ; 
1  East  P.  C.  260,  and  seq.  ;  Hull's  case,  Kelyng,  40,  and  cases  cited 
below. 

But  recklessness  in  a  moral  sense  means  a  certain  state  of  conscious- 
ness with  reference  to  the  consequences  of  one's  acts.  No  matter 
whether  defined  as  indifference  to  what  those  consequences  may  be,  or 
as  a  failure  to  consider  their  nature  or  probability  as  fully  as  the  party 
might  and  ought  to  have  done,  it  is  understood  to  depend  on  the  actual 
condition  of  the  individual's  mind  with  regard  to  consequences,  as 
distinguished  from  mere  knowledge  of  present  or  past  facts  or  circum- 
stances, from  which  some  one  or  everybody  else  miglit  be  led  to  antici- 
pate or  apprehend  them  if  the  supposed  act  were  done.  We  have  to 
determine  whether  recklessness  in  this  sense  was  necessary  to  make 
the  defendant  guilty  of  felonious  homicide,  or  whether  his  acts  are  to 
be  judged  by  the  external  standard  of  what  would  be  morally  reck- 
less, under  the  circumstances  known  to  him,  in  a  man  of  reasonable 
prudence. 

More  specifically,  the  questions  raised  by  the  foregoing  requests  and 
rulings  are  whether  an  actual  good  intent  and  the  expectation  of  good 
results  are  an  absolute  justification  of  acts,  however  foolhardy  they 
may  be  if  judged  by  the  external  standard  supposed,  and  whether  the 
defendant's  ignorance  of  the  tendencies  of  kerosene  administered  as  it 
was  will  excuse  the  administration  of  it. 

So  far  as  civil  liability  is  concerned,  at  least,  it  is  very  clear  that 
what  we  have  called  the  external  standard  would  be  applied,  and  that, 
if  a  man's  conduct  is  such  as  would  be  reckless  in  a  man  of  ordinary 
prudence,  it  is  reckless  in  him.  Unless  he  can  bring  himself  within 
some  broadly  defined  exception  to  general  rules,  the  law  deliberately 
leaves  his  idiosyncrasies  out  of  account,  and  peremptorily  assumes  that 
he  has  as  much  capacity  to  judge  and  to  foresee  consequences  as  a  man 
of  ordinary  prudence  would  have  in  the  same  situation.  In  the  language 
of  Tindal,  C.  J.,  "Instead,  therefore,  of  saying  that  the  liability  for 
neghgence  should  be  coextensive  with  the  judgment  of  each  individual, 
which  would  be  as  variable  as  the  length  of  the  foot  of  each  individual, 
we  ought  rather  to  adhere  to  the  rule  which  requires  in  all  cases  a  re- 
gard to  caution  such  as  a  man  of  ordinary  prudence  would  observe." 
Vaughan  v.  Menlove,  3  Bing.  N.  C.  468,  475  ;  s.  c.  4  Scott,  244. 


SECT.  III.]  COMMONWEALTH   V.    PIERCE.  431 

If  this  is  the  rule  adopted  in  regard  to  the  redistribution  of  losses, 
which  sound  poUey  allows  to  rest  where  they  fall  in  the  absence  of  a 
clear  reason  to  the  contrary,  there  would  seem  to  be  at  least  equal 
reason  for  adopting  it  in  the  criminal  law,  which  has  for  its  immediate 
object  and  task  to  establish  a  general  standard,  or  at  least  general  neg- 
ative limits,  of  conduct  for  the  community,  in  the  interest  of  the  safety 
of  all. 

Tliere  is  no  denying,  however,  that  Commonwealth  v.  Thompson, 
although  possibly  distinguishable  from  the  present  case  upon  the  evi- 
dence, tends  very  strongly  to  limit  criminal  liability  more  narrowly 
than  the  instructions  given.  But  it  is  to  be  observed  that  the  court 
did  not  intend  to  lay  down  any  new  law.  They  cited  and  meant  to 
follow  the  statement  of  Lord  Hale,  I  P.  C.  429,  to  the  effect  "  that  if  a 
physician,  whether  licensed  or  not,  gives  a  person  a  potion,  without 
any  intent  of  doing  him  any  bodily  hurt,  but  with  intent  to  cure,  or 
prevent  a  disease,  and,  contrary  to  the  expectation  of  the  physician,  it 
kills  him,  he  is  not  guilty  of  murder  or  manslaughter."  6  Mass.  141. 
If  this  portion  of  the  charge  to  the  jury  is  reported  accurately,  which 
seems  uncertain  (6  Mass.  134,  n.),  we  think  that  the  court  fell  into  the 
mistake  of  taking  Lord  Hale  too  literally.  Lord  Hale  himself  admitted 
that  other  persons  might  make  themselves  liable  by  reckless  conduct. 
1  P.  C.  472.  We  doubt  if  he  meant  to  deny  that  a  physician  might  do 
so,  as  well  as  any  one  else.  He  has  not  been  so  understood  in  later 
times.  Rex  v.  Long,  4  C.  &  P.  423,  436  ;  Webb's  case,  2  Lewin,  196, 
211.  His  text  is  simply  an  abridgment  of  4  Inst.  251.  Lord  Coke 
there  cites  the  Mirror,  c.  4,  §  16,  with  seeming  approval,  in  favor  of 
the  liability.  The  case  cited  by  Hale  does  not  deny  it.  Fitz.  Abr. 
Corone,  pi.  163.  Another  case  of  the  same  reign  seems  to  recognize  it. 
Y.  B.  43  Edw.  ITL  33,  pi.  38,  where  Thorp  said  that  he  had  seen  one 
M.  indicted  for  killing  a  man  whom  he  had  undertaken  to  cure,  by  want 
of  care.  And  a  multitude  of  modern  cases  have  settled  the  law  accord- 
ingly in  England.  Rex  v.  Williamson,  3  C.  &  P.  635 ;  Tessymond's  case, 
1  Lewin,  169;  Ferguson's  case,  1  Lewin,  181;  Rex  v.  Simpson,  Will- 
cock,  Med.  Prof.,  part  2,  ccxxvii.;  Rex  v.  Long,  4  C.  &  P.  398;  Rex 
V.  Long,  4  C.  &  P.  423 ;  Rex  v.  Spiller,  5  C.  &  P.  333  ;  Rex  v.  Senior, 
1  Moody,  346;  Webb's  case,  uM  siipra ;  s.  c.  1  Mood.  &  Rob.  405; 
Queen  v.  Spilling,  2  Mood.  &  Rob.  107;  Regina  v.  Whitehead,  3  C.  & 
K.  202 ;  Regina  v.  Crick,  1  F.  &  F.  519 ;  Regina  v.  Crook,  1  F.  &  F. 
521 ;  Regina  v.  Markuss,  4  F.  &  F.  356  ;  Regina  v.  Chamberlain,  10 
Cox  C.  C.  486;  Regina  v.  Macleod,  12  Cox  C.  C.  534.  See  also  Ann 
V.  State,  11  Humph.  159;  State  v.  Hardister,  38  Ark.  605;  and  the 
Massachusetts  cases  cited  below. 

If  a  physician  is  not  less  liable  for  reckless  conduct  than  other  people, 
it  is  clear,  in  the  light  of  admitted  principle  and  the  later  Massachusetts 
cases,  that  the  recklessness  of  the  criminal  no  less  than  that  of  the  civil 
law  must  be  tested  by  what  we  have  called  an  external  standard.  In 
dealing  with  a  man  who  has  no  special  training,  the  question  whether 


432 


COMMONWEALTH   V.   PIERCE.  [CHAP.  VI. 


his  act  would  be  reckless  in  a  man  of  ordinary  prudence  is  evidently 
equivalent  to  an  inquiry  into  the  degree  of  danger  which  common  expe- 
rience shows  to  attend  the  act  under  the  circumstances  known  to  the 
actor.  The  only  difference  is  that  the  latter  inquiry  is  still  more  obvi- 
ously external  to  the  estimate  formed  by  the  actor  personally  than  the 
former.  But  it  is  familiar  law  that  an  act  causing  death  may  be  mur- 
der, manslaughter,  or  misadventure,  according  to  the  degree  of  danger 
attending  it.  If  the  danger  is  very  great,  as  in  the  case  of  an  assault 
with  a  w'eapon  found  by  tlie  jury  to  be  deadly,  or  an  assault  with  hands 
and  feet  upon  a  woman  known  to  be  exhausted  by  illness,  it  is  murder. 
Commonwealth  v.  Drew,  4  Mass.  391,  396;  Commonwealth  v.  Fox, 
7  Gray,  585.     Tlie  doctrine  is  clearly  stated  in  1  East  P.  C.  262. 

The  very  meaning  of  the  fiction  of  implied  malice  in  such  cases  at 
common  law  was,  that  a  man  might  have  to  answer  with  his  life  for 
consequences  which  he  neither  intended  nor  foresaw.  To  say  that  he 
was  presumed  to  have  intended  them,  is  merely  to  adopt  another 
fiction,  and  to  disguise  the  truth.  The  truth  was,  that  his  failure  or 
inability  to  predict  them  was  immaterial,  if,  under  the  circumstances 
known'to  him,  the  court  or  jury,  as  the  case  might  be,  thought  them 

obvious. 

As  implied  malice  signifies  the  highest  degree  of  danger,  and  makes 
the  act  murder;  so,  if  the  danger  is  less,  but  still  not  so  remote  that  it 
can  be  disregarded,  the  act  will  be  called  reckless,  and  will  be  man- 
slaughter, as  in  the  case  of  an  ordinary  assault  with  feet  and  hands,  or 
a  weapon  not  deadly,  upon  a  well  person.  Cases  of  Drew  and  Fox, 
nbi  supra.  Or  firing  a  pistol  into  the  highway,  when  it  does  not  amount 
to  murder.  Rex  v.  Burton,  1  Stra.  481.  Or  slinging  a  cask  over  the 
liighway  in  a  customary,  but  insufficient  mode.  Rigmaidon's  case, 
1  Lewin,  180.  See  Hull's  case,  ubi  supra.  Or  careless  driving.  Rex 
V.  Timmins,  7  C.  «&;  P.  499;  Regina  v.  Dalloway,  2  Cox  C.  C.  273; 
Regina  v.  Swindall,  2  C.  &  K.  230. 

If  the  principle  which  has  thus  been  established  both  for  murder  and 
manslaugliter  is  adhered  to,  the  defendant's  intention  to  produce  the 
opposite  result  from  that  which  came  to  pass  leaves  him  in  the  same 
position  with  regard  to  the  present  charge  that  he  would  have  been  in 
if  he  had  had  no  intention  at  all  in  the  matter.  We  think  that  the 
principle  must  be  adhered  to,  where,  as  here,  the  assumption  to  act  as 
a  physician  was  uncalled  for  by  any  sudden  emergency,  and  no  excep- 
tional circumstances  are  shown  ;  and  that  we  cannot  recognize  a  privi- 
lege to  do  acts  manifestly  endangering  human  life,  on  the  ground  of 
good  intentions  alone. 

We  have  implied,  however,  in  what  we  have  said,  and  it  is  undoubt- 
edly true,  as  a  general  proposition,  that  a  man's  liability  for  his  acts  is 
determined  by  their' tendency  under  the  circumstances  known  to  him, 
and  not  by  their  tendency  under  all  the  circumstances  actually  affecting 
the  result,  whether  known  or  unknown.  And  it  may  be  asked  wliy  the 
dangerous  character  of  kerosene,  or  "the  fatal  tendency  of  the  pre- 


SECT.  III.]  COMMONWEALTH   V.   PIEECE.  433 

scription,"  as  it  was  put  in  the  fifth  request,  is  not  one  of  the  circum- 
stances the  defendant's  knowledge  or  ignorance  of  which  might  have  a 
most  important  bearing  on  his  guilt  or  innocence. 

But  linowledge  of  the  dangerous  character  of  a  thing  is  only  the 
equivalent  of  foresight  of  the  way  in  which  it  will  act.  We  admit  that, 
if  the  thing  is  generally  supposed  to  be  universally  harmless,  and  only 
a  specialist  would  foresee  that  in  a  given  case  it  would  do  damage,  a 
person  who  did  not  foresee  it,  and  who  had  no  warning,  would  not  be 
held  liable  for  the  harm.  If  men  were  held  answerable  for  everything 
they  did  which  was  dangerous  in  fact,  they  would  be  held  for  all  their 
acts  from  which  harm  in  fact  ensued.  The  use  of  the  thing  must  be 
dangerous  according  to  common  experience,  at  least  to  the  extent  that 
there  is  a  manifest  and  appreciable  chance  of  harm  from  what  is  done, 
in  view  either  of  the  actor's  knowledge  or  of  his  conscious  ignorance. 
And  therefore,  again,  if  the  danger  is  due  to  the  specific  tendencies  of 
the  individual  thing,  and  is  not  characteristic  of  the  class  to  which  it 
belongs,  which  seems  to  have  been  the  view  of  the  common  law  with 
regard  to  bulls,  for  instance,  a  person  to  be  made  liable  must  have 
notice  of  some  past  experience,  or,  as  is  commonly  said,  "  of  the  qualitj' 
of  his  beast."  1  Hale  P.  C.  430.  But  if  the  dangers  are  characteristic 
of  the  class  according  to  common  experience,  then  he  who  uses  an  arti- 
cle of  the  class  upon  another  cannot  escape  on  the  ground  that  he  had 
less  than  the  common  experience.  Common  experience  is  necessary  to 
the  man  of  ordinary  prudence,  and  a  man  who  assumes  to  act  as  the 
defendant  did  must  have  it  at  his  peril.  When  the  jury  are  asked 
whether  a  stick  of  a  certain  size  was  a  deadly  weapon,  the}'  are  not 
asked  further  whether  the  defendant  knew  that  it  was  so.  It  is  enough 
that  he  used  and  saw  it  such  as  it  was.  Commonwealth  v.  Drew,  ubi 
supra.  See  also  Commonwealth  v.  Webster,  5  Cush.  295,  306.  So  as 
to  an  assault  and  battery  by  the  use  of  excessive  force.  Common- 
wealth V.  Randall,  4  Gray,  36.  So  here.  The  defendant  knew  that  he 
was  using  kerosene.  The  jury  have  found  that  it  was  applied  as  the 
result  of  foolhardy  presumption  or  gross  negligence,  and  that  is  enough. 
Commonwealth  v.  Stratton,  114  Mass.  303,  305.  Indeed,  if  the  de- 
fendant had  known  the  fatal  tendenc}'  of  the  prescription,  he  would 
have  been  perilously  near  the  line  of  murder.  Regina  v.  Packard, 
C.  &  M.  236.  It  will  not  be  necessary  to  invoke  the  authorit}'  of  those 
exceptional  decisions  in  which  it  has  been  held,  with  regard  to  knowl- 
edge of  the  circumstances,  as  distinguished  from  foresight  of  the  con- 
sequences of  an  act,  that,  when  certain  of  the  circumstances  were 
known,  the  party  was  bound  at  his  peril  to  inquire  as  to  the  others, 
although  not  of  a  nature  to  be  necessarih'  inferred  from  what  were 
known.  Commonwealth  v.  Hallett,  183  Mass.  452;  Regina  y.  Prince, 
L.  R.  2  C.  C.  154  ;  Commonwealth  v.  Farren,  9  Allen,  489. 

The  remaining  questions  may  be  disposed  of  more  shortl}'.  When 
the  defendant  applied  kerosene  to  the  person  of  the  deceased  in  a  way 
which  the  jury  have  found  to  have  been  reckless,  or,  in  other  words, 

28 


434  JOHNSON   V.   STATE.  [CHAP.  VI. 

seriously  and  unreasonably  endangering  life  according  to  common  ex- 
perience, he  did  an  act  which  his  patient  could  not  justify  by  her  con- 
sent, and  which  therefore  was  an  assault  notwithstanding  that  consent. 
Commonwealth  v.  CoUberg,  119  Mass.  350.  See  Commonwealth  v. 
Mink,  123  Mass.  422,  425.  It  is  unnecessary  to  rely  on  the  principle 
of  Commonwealth  v.  Stratton,  ubi  snpra,  that  fraud  may  destroy  the 
effect  of  consent,  although  evidently  the  consent  in  this  case  was  based 
on  the  express  or  implied  representations  of  the  defendant  concerning 
his  experience. 

As  we  have  intimated  above,  an  allegation  that  the  defendant  knew 
of  the  deadly  tendency  of  the  kerosene  was  not  only  unnecessary,  but 
improper.  Regina  v.  Packard,  mM  supra.  An  allegation  that  the 
kerosene  was  of  a  dangerous  tendency  is  superfluous,  although  similar 
allegations  are  often  inserted  in  indictments,  it  being  enough  to  allege 
the  assault,  and  that  death  did  in  fact  result  from  it.  It  would  be 
superfluous  in  the  case  of  an  assault  with  a  staff,  or  where  the  death 
resulted  from  assault  combined  with  exposure.  See  Commonwealth  v. 
Macloon,  101  Mass.  1.  See  further  the  second  count,  for  causing 
death  by  exposure,  in  Stockdale's  case,  2  Lewin,  220 ;  Regina  v.  Smith, 
11  Cox  C.  C.  210.  The  instructions  to  the  jury  on  the  standard  of  skill 
by  which  the  defendant  was  to  be  tried,  stated  above,  were  as  favorable 
to  him  as  he  could  ask. 

The  objection  to  evidence  of  the  defendant's  previous  unfavorable 
experience  of  the  use  of  kerosene  is  not  pressed.  The  admission  of  it 
in  i-ebuttal  was  a  matter  of  discretion.     Commonwealth  %k  Blair,  126 

Mass.  40.  Exceptions  overruled, 

-'.    ■"".   I' 

— -^,    - 

JOHNSON  V.  STATE. 

Supreme  Court  of  Ohio.     1902. 

[Reported  66  Oliio  St.  59.] 

Price,  J.  If  the  conceded  facts  are  sufficient  and  the  charge  of  the 
trial  court  sound  law  to  govern  the  jury  in  deciding  on  such  facts,  the 
plaintiff  in  error  may  have  been  properly  punished  for  very  reprehensi- 
ble conduct.  That  part  of  the  charge  contained  in  the  statement  of 
the  case  as  well  as  a  subsequent  paragraph  which  we  will  notice,  were 
equivalent  to  directing  a  verdict  of  conviction,  inasmuch  as  there  was 
no  dispute  as  to  the  facts.  There  was  a  verdict  of  conviction  and 
a  sentence  upon  the  verdict,  which  the  circuit  court  sustained,  and 
thereby  must  have  held  that  the  charge  correctly  stated  the  law  of  the 
case. 

The  importance  of  what  is  presented  as  an  apparentlj-  new  doctrine 
in  this  state,  as  well  as  respect  for  the  opinions  of  both  the  lower 
courts,  have  been  sufficient  reasons  for  giving  the  questions  involved 
a  careful  consideration. 


SECT.  III.]  JOHNSON   V.   STATE.  435 

The  indictment  for  manslaughter  in  this  ease  is  in  the  short  form 
authorized  by  section  7217  of  the  Revised  Statutes,  and  it  charges  that 
"  Noah  Johnson  ...  on  the  twenty-fifth  day  of  May  in  the  year 
of  our  Lord  one  thousand  nine  hunch-ed  and  one,  in  the  county  of 
Scioto,  did  unlawfully  kill  one  Emory  Barrows  then  and  there  being, 
contrary  to  the  form  of  the  statute,"  etc. 

Prior  to  the  codification  of  the  criminal  statutes,  manslaughter  was 
thus  defined  :  "  That  if  any  person  shall  unlawfully  kill  another  without 
malice,  either  upon  a  sudden  quarrel,  or  unintentionally  while  the  slayer 
is  in  the  commission  of  some  unlawful  act,  every  such  person  shall  bo 
deemed  guilty  of  manslaughter,  and  on  conviction  thereof,  be  pun- 
ished," etc.     Vol.  1,  S.  &  C.  403. 

The  statute  on  the  subject  now  is  section  6811,  Revised  Statutes, 
which  reads:  "Whoever  unlawfully  kills  another,  except  as  provided 
in  the  last  three  sections,  is  guilty  of  manslaughter,  and  shall  be  im- 
prisoned," etc.  The  preceding  sections  define  murder  in  the  first  and 
second  degrees.  But  the  present  section  9811  is  not  different  in  sub- 
stance and  meaning  from  the  original  section  above  quoted,  and  to 
ascertain  the  elements  of  the  crime  of  manslaugliter  we  look  to  the 
original  as  it  stood  before  codification  or  revision.  Therefore,  to  con- 
vict of  manslaughter,  it  is  incumbent  upon  the  state  to  establish  that 
the  killing  was  done  "either  upon  a  sudden  quarrel,  or  unintentionally 
while  the  slayer  was  (is)  in  the  commission  of  some  unlawful  act." 

It  is  clear  from  the  facts  and  the  instructions  given  the  jur}', 
that  Barrows  was  not  killed  by  Johnson  in  a  quarrel ;  nor  was  the  kill- 
ino-  intentional.  Hence,  the  latter  clause  of  the  definition  of  the  crime 
is  the  one  to  which  our  investigation  should  be  confined.  The  state 
was  required  to  show  that  while  the  killing  was  unintentional,  it  was 
done  by  Johnson  wliile  he  was  in  the  commission  of  some  unlawful  act ; 
and  the  question  arises,  whether  the  negligent  act  or  acts  of  the  slayer, 
though  no  breach  of  any  law,  may  be  sufficient  to  constitute  the  unlaw- 
ful act  designated  in  the  statute.  Or,  is  the  state  required  to  show  that 
he  was  in  the  commission  of  an  act  prohibited  by  law  ? 

At  the  time  of  this  homicide  there  was  even  no  ordinance  of  the 
village  of  Scioto  regulating  the  speed  or  manner  of  riding  bicycles  upon 
its  streets.  None  appears  in  the  record,  and  we  therefore  assume  there 
was  no  such  ordinance.  And  it  is  not  claimed  that  there  was  any  stat- 
ute then  in  force  on  that  subject.  What  then  is  the  proper  construc- 
tion of  the  clause  "  while  in  commission  of  some  unlawful  act  "  ? 

The  construction  which  prevailed  in  the  lower  courts  is  found  again 
in  a  portion  of  the  charge  which  we  quote  as  the  final  admonition 
to  the  jury :  "Now,  gentlemen,  apply  these  principles  to  the  case  and 
determine  from  the  evidence  introduced  upon  the  trial  whether  the  de- 
fendant, Noah  Johnson,  at  the  time  he  struck  and  killed  the  decedent, 
Emory  Barrows,  was  riding  his  bicycle  with  gross  negligence,  and  was 
it  sucii  as  an  ordinarily  reasonable  and  prudent  person  might  and  rea- 
sonably ought  to  have  foreseen  would  endanger  the  lives  and  safety  of 


436  JOHNSON   V.    STATE.  [CIIAP.  VI. 

Others,  and  be  likely  to  produce  fatal  injuries ;  and  was  such  killing 
the  direct,  natural,  and  proximate  result  of  such  negligence?  If  the 
evidence  satisGes  you  beyond  a  reasonable  doubt  of  all  these  matters, 
then  your  verdict  sliould  be  that  the  defendant  is  guilty  of  manslaughter 
as  he  stands  charged  in  the  indictment ;  otherwise  you  should  acquit  him." 
In  this  language  the  trial  court  told  the  jury  that  if  the  defendant's 
conduct  in  the  manner  of  riding  the  bicycle  —  its  speed  without  signal 
of  a  bell was,  in  their  judgment,  grossly  negligent,  it  was  an  unlaw- 
ful act,  and  they  might  find  that  in  such  conduct  he  was  committing  an 
unlawful  act,  and,  if  it  resulted  in  the  death  of  Barrows,  the  rider  was 
guilty  of  manslaughter.  And  it  was  left  to  the  jury,  and  they  were 
directed  to  determine  from  the  evidence  whether  or  not  the  acts  done 
were  grossly  negligent  and  regardless  of  the  life  and  safety  of  another. 
If  so,  to  convict. 

"We  have  no  common  law  crimes  in  this  state.  We  think  such  has 
been  the  uniform  understanding  of  the  bar,  and  the  opinion  of  both  the 
judicial  and  legislative  departments  of  our  commonwealth.  Before  the 
trial  of  this  case  there  was  but  one  other  case  brought  to  our  attention 
where  the  proposition  has  been  called  in  question.  Weller  v.  The  State 
of  Ohio,  10  Circ.  Dec.  381  ;  19  C.  C.  R.  166. 

But  this  court  has  settled  the  commonly  accepted  rule  in  more  than 
one  case.  In  Sutcliffe  v.  The  State,  18  Ohio,  469,  477,  Justice  Aveiy, 
speaking  for  the  court,  says:  "There  is  no  common  law  crime  in  this 
state,  and  we  therefore  look  always  to  the  statute  to  ascertain  what  is 
the  offence  of  the  prisoner,  and  what  is  to  be  his  punishment  ,  .  ." 
A^ain  on  same  page  :  "  What  is  affirmed  in  this  statute  of  manslaughter 
of  the  character  which  this  court  is  intended  to  reach,  except  that  the 
slayer  must  be  in  the  commission  at  the  time  of  some  unlawful  act?" 

Also  on  page  477  :  "  It  is  claimed  for  the  plaintiff  in  error  that  there 
is  no  allegation  in  the  count  of  the  unlawful  act  designated  in  the  stat- 
ute. It  was  necessary  to  allege  in  the  indictment  that  the  person  was 
engaged  in  the  commission  of  some  unlawful  act.  And  this  allegation, 
it  appears  to  the  court,  is  distinctly  made  in  that  part  of  the  indictment 
which  charges  the  prisoner  with  an  assault  upon  the  person  killed, 
and  unlawfully  discharging  and  shooting  off  at  him  a  loaded  gun. 
This  sufficiently  declares  an  unlawful  act     .     .     ." 

As  before  stated,  our  statute  now  provides  for  a  shorter  form  of  in- 
dictment, but  it  does  not  dispense  with  the  ingredients  of  manslaughter 
as  defined  in  the  former  statute. 

In  Smith  v.  The  State,  12  Ohio  St.  466,  469,  this  court  sa3-s :  "  It 
must  be  borne  in  mind  that  we  have  no  common  law  offences  in  this 
state.  No  act  or  omission,  however  hurtful  or  immoral  in  its  tenden- 
cies, is  punishable  as  a  crime  in  Ohio,  unless  such  act  or  omission 
is  specially  enjoined  or  prohibited  b}'  the  statute  law  of  the  state.  It 
is,  therefore,  idle  to  speculate  upon  the  injurious  consequences  of  per- 
mitting such  conduct  to  go  unpunished,  or  to  regret  that  our  criminal 
code  has  not  the  expansiveness  of  the  common  law." 


SECT.  III.]  JOHNSON    V.    STATE.  437 

The  same  statement  of  the  law  was  again  made  in  Mitchell  v.  The 
State,  42  Ohio  St.  383,  and  other  decisions  of  this  court. 

We  think  the  same  rule  abides  in  many,  if  not  all  the  other  states  of 
the  Union  whose  legislatures  liave  many  codes  or  sj'stems  of  statutory 
crimes.  It  evidently  is  true  of  tlie  federal  government  as  settled  bj' 
repeated  decisions  of  the  Supreme  Court  of  the  United  States.  United 
States  V.  Worrall,  2  U.  S.  (2  Dall.)  384 :  United  States  v.  Hudson  and 
Goodwin,  11  U.  S.  (7  Cranch),  32  ;  Pennsylvania  v.  Bridge  Co.,  54  U. 
S.  (43  How.)  518,  and  later  cases  in  that  court.  When  our  legisla- 
ture first  enacted  statutes  upon  the  subject  of  homicide  and  defining  its 
different  degrees,  it  did,  as  to  manslaughter,  what  the  state  suggests, 
adopted  almost  literally  the  common  law  definition.  Sutcliffe  v.  The 
State,  18  Ohio,  469,  supra.  But  when  this  definition  was  borrowed 
and  adopted  by  our  legislature,  it  was  adopted,  not  in  part,  but  as 
a  whole,  and  the  act  committed  when  the  unintentional  killing  occurs, 
must  be  a  violation  of  some  prohibitory  law.  The  ver}'  word  "  unlaw- 
ful" in  criminal  jurisprudence  means  that  and  nothing  less.  Surely 
the  legislature  did  not  intend  to  adopt  part  of  the  common  law  descrijv 
tion  of  the  offence  as  a  statutory  provision,  and  leave  tlie  other  part 
to  the  expansiveness  of  the  common  law.  Yet,  that  is  practically  the 
construction  which  the  lower  courts  must  have  placed  upon  our  statute 
against  manslaughter.  We  assume  that  the  facts  show  coiiduct  grossly 
negligent  in  character.  There  was  no  malice  and  no  quarrel  between 
defendant  and  the  deceased.  The  killing  was  unintentional.  It  was 
manslaughter  nevertheless,  if  the  sla3'er  was  then  in  commission  of 
some  unlawful  act.  The  jury  were  told  that  if  in  their  judgment  the 
accused  was  guilty  of  gross  negligence  and  a  disregard  for  the  lives 
and  safety  of  others,  the  state  was  entitled  to  a  verdict  of  manslaughter. 
In  considering  this  rather  unusual,  if  not  new  construction  of  the  law, 
we  must  not  forget  a  few  elementary  principles  of  the  law  of  negligence. 
It  (negligence)  may  consist  of  acts  of  omission  as  well  as  commission  ; 
and  what  may  be  mere  ordinary  negligence  under  one  class  of  circum- 
stances and  conditions,  may  become  gross  negligence  under  other  con- 
ditions and  circumstances.  Negligence  is  the  failure  to  exercise  ordinary 
care.  Gross  negligence  may  consist  in  failure  to  exercise  any  or  very 
slight  care.  There  are  other  definitions,  but  these  are  sufficient  now 
for  our  purpose.  So  we  may  truly  say  that  negligence  differs  only 
in  degree.  With  this,  we  cannot  overlook  what  experience  has  taught 
for  many  years,  tliat  what  may  seem  ordinary  negligence  when  con- 
templated by  one  mind  may  be  regarded  by  another  as  very  gross  neg- 
ligence. The  inferences  drawn  from  the  same  facts  by  different  minds 
may  often  greatly  differ.  Hence,  when  we  look  to  the  case  as  it 
appeared  in  the  trial  court,  we  see  that,  without  any  rule  of  conduct 
prescribed  by  statute  to  govern  the  case,  the  rule  for  the  first  time  was 
to  be  established  by  the  verdict  of  the  jury  and  sentence  of  the  court. 

Up  to  that  time  the  behavior  of  the  defendant  had  violated  no  law. 
It  was  for  the  jury  to  say,  under  the  instructions  given,  whether  the 


^ 


438  JOHNSON   V.   STATE,  [CHAP.  YI. 

accused  had  been  guilty  of  gross  negligence.  If  so,  although  the  kill- 
ing was  unintentional  and  free  from  malice,  it  was  manslaughter.  In 
Eno-land,  the  home  of  the  common  law  and  where  it  attained  its  won- 
derful growth,  and  from  which  we  have  borrowed  to  a  large  extent,  it 
became  necessary  and  was  permissible  to  build  up,  by  the  pen  of  law 
writers  and  adjudged  cases,  a  system  of  criminal  jurisprudence,  and 
enforce  it  until  parliament  would  occupy  the  ground  and  supplant  it. 
But  that  countr}-,  while  so  doing,  was  under  no  written  constitution, 
and  export  facto,  or  retroactive  laws  might  be  laid  down  by  the  courts 
or  enacted  by  parliament.  Not  so  in  this  country  where  we  have  a 
written  constitution  prohibiting  retroactive  and  ex  post  facto  legisla- 
tion. Weeks  or  months  after  the  negligent  acts  involved  in  this  case, 
we  have  the  rule  of  conduct  of  the  defendant  passed  upon  and  defined 
by  a  verdict  upon  the  all  important  and  indispensable  element  of  man- 
slaughter based  on  the  facts  of  the  case.  It  is  retroactive  in  its  effect. 
An  act  of  the  legislature  attempting  to  so  operate  would  be  promptly 
held  unconstitutional.  Can  we  sustain  a  construction  of  our  statute 
against  manslaughter  which  will  have  the  same  effect? 

In  our  judgment  the  unlawful  act,  the  commission  of  which  gives 
color  and  character  to  the  unintentional  killing,  is  an  act  prohibited  by 
law,  and  that  such  is  the  natural  meaning  of  the  term  or  clause  when 
used  in  the  parlance  of  criminal  jurisprudence. 

Another  observation  is  appropriate  here :  The  uncertainty  of  the 
common  law.  Some  principles  which  are  deemed  common  law  in  Ohio 
are  not  so  regarded  in  other  states,  and  what  some  of  them  regard  as 
common  law  we  do  not  recognize  as  such  in  Ohio.  Therefore,  the 
wisdom  of  enacting  a  system  of  penal  laws  at  the  beginning  of  our 
statehood,  and  of  improving  and  expanding  it  as  fast  as  conditions  of 
society  required.  The  growth  of  such  legislation  is  itself  against  the 
holdings  of  the  lower  courts.  What  acts  or  omissions  in  early  years 
were  harmless,  owing  to  the  sparsit}'  of  population  and  character  of 
propert}-  and  business  then  owned  and  conducted,  afterwards,  as  popu- 
lation increased  and  business  relations  became  diversified,  became  in- 
jurious to  others ;  and  in  other  respects  the  good  order  of  societ}'  and 
the  protection  of  life  and  propert}'  demanded  and  received  appropriate 
legislation.  That  department  of  our  state  government  has  kept  pace 
with  the  wrongs,  the  vices,  and  immoralities  of  our  social  and  industrial 
life.  It  has  gone  farther,  when  occasion  demanded,  and  has  made 
criminal  many  acts  and  omissions  which  before  belonged  to  the  field  of 
negligence,  as  witness,  many  provisions  regarding  the  management  of 
railroads,  factories,  and  mines,  and  other  branches  of  business  where 
labor  is  employed.  Many  acts  or  omissions  to  act,  which  before  were 
subject  to  the  charge  of  negligence,  are  made  penal  by  statute.  And  a 
consideration  of  this  course  of  legislation  demonstrates  that  there  is  no 
longer  a  necessity  to  turn  to  the  common  law  to  find  what  act  or  acts 
it  is  unlawful  to  commit. 

If  the  contention  of  the  state  in  this  case  is  tenable,  it  is  not  difficult 


SECT,  III.]  REGINA    V.    EGAN.  439 

to  see  how  the  criminal  dockets  in  our  courts  will  soon  be  flooded. 
Tlie  gross  negligence  of  one  n>ay  unintentionally  cause  the  death  of 
many.  If  such  negligence  is  the  commission  of  an  unlawful  act,  the 
killing  of  each  of  the  slain  becomes  a  separate  crime  of  manslaughter. 
And  so  it  would  proceed,  and  the  cases  multiply  according  to  the  judg- 
ment of  men,  as  to  when  the  acts  of  others  are  or  are  not  grossly  negli- 
gent. 

The  position  is  untenable,  and  we  decide  that  the  judgments  of  the 
common  pleas  and  circuit  courts  are  erroneous  and  must  be  reversed, 
and  the  facts  of  this  case  being  conceded,  as  stated  herein,  the  plaintiff 
in  error  is  discharged.  Meversed. 

BuRKET,  Davis,  and  Shauck,  JJ.,  concur. 


REGINA  V.  EGAN. 

Crown  Case  Reserved,  Victoria.     1897. 

[Reported  23  Vic.  L.  R.  159.] 

The  prisoner  was  convicted  at  the  April  criminal  sittings  of  the 
court  of  the  manslaughter  of  her  male  child,  aged  about  eleven  months. 
On  the  evening  of  the  offence  the  prisoner  had  been  drinking,  and  in 
a  more  or  less  intoxicated  condition  took  the  child  into  bed  with  her, 
overlap'  it,  and  thus  caused  its  death  by  suffocation.  The  presiding 
judge,  Hodges,  J.,  directed  the  jury  that  if  they  believed  this  evidence 
the}'  should  find  the  prisoner  guilty.  The  prisoner  was  convicted. 
Hodges,  J.,  then  reserved  for  consideration  of  the  Full  Court  the 
question  whether  his  direction  was  right. 

Madden,  C.  J.,  delivered  the  judgment  of  the  Court  [Madden,  C.  J., 
Hodges  and  Hood,  JJ.].  AVe  think  that  the  proposition  involved 
in  this  case  is  too  broad,  and  that,  looking  at  all  the  circumstances, 
the  charge  of  manslaughter  cannot  be  supported.  It  a  woman  has 
made  a  resolution  to  kill  her  child,  and,  having  allowed  berselfto  be- 
come to  some  degree  drunk,  takes  it  to  bed  with  her,  knowing  that 
in  a  heavy  sleep  she  will  probably  overlie  the  child  —  apparently  in- 
nocently, but  at  the  same  time  with  the  intention  to  destroy  the  child  — 
then  that  is  murder.  If,  being  in  the  state  I  have  mentioned,  she, 
knowing  that  she  may  overlie  the  child,  and,  against  the  advice  or 
disregarding  the  remonstrances  of  her  friends,  takes  the  child  to  bed 
with  her  and  overlies  it,  killing  it,  that  is  manslaughter.  But  the 
evidence  in  this  case  is  to  the  effect  that  the  defendant  had  been 
drinking,  and  while  under  the  influence  of  liquor  and  after  taking  the 
child  to  bed  with  her,  by  an  unhappy  mischance  overla}'  it ;  this,  in 
our  opinion,  is  not  sufficient  to  sustain  a  charge  of  manslaughter. 


440  m'naghten's  case.  [chap.  vii. 


CHAPTER  VII. 
RESPONSIBILITY:  EFFECT   OF  MENTAL  LIMITATION. 


SECTION   I. 

Insanity. 

M'NAGHTEN'S   CASE. 

*/S>  Answer  of  the  Judges  to  the   House  of  Lords.     1843. 

^Reported  10  Clark  ^  FinneUy,  200.] 

The  prisoner  had  been  indicted  for  the  murder  of  Edward  Drura- 
mond.^  The  prisoner  pleaded  "  Not  guilty."  Evidence  having  been 
given  of  the  fact  of  the  shooting  of  Mr,  Druramond,  and  of  his  death 
in  consequence  thereof,  witnesses  were  called  on  the  part  of  the  pris- 
oner to  prove  that  he  was  not,  at  the  time  of  committing  the  act,  in 
a  sound  state  of  mind. 

Lord  Chief  Justice  Tindal  (in  his  charge).  The  question  to  be 
determined  is,  whether  at  the  time  the  act  in  question  was  committed, 
the  prisoner  had  or  had  not  the  use  of  his  understanding,  so  as  to 
know  that  he  was  doing  a  wrong  or  wicked  act.  If  the  jurors  should 
be  of  opinion  that  the  prisoner  was  not  sensible,  at  the  time  he  com- 
mitted it,  that  he  was  violating  the  laws  both  of  God  and  man,  then 
he  would  be  entitled  to  a  verdict  in  his  favor :  but  if,  on  the  contrarv, 
they  were  of  opinion  that  when  he  committed  the  act  he  was  in  a 
sound  state  of  mind,  then  their  verdict  must  be  against  him. 

Verdict,  Not  guilty,  on  the  ground  of  insanity. 

This  verdict,  and  the  question  of  the  nature  and  extent  of  the  un- 
soundness of  mind  which  would  excuse  the  commission  of  a  felony  of 
this  sort  having  been  made  the  subject  of  debate  in  the  House  of 
Lords,  it  was  determined  to  take  the  opinion  of  the  judges  on  the 
law  governing  such  cases.  Accordingly  the  judges  att^'ended  the 
House  of  Lords ;  when  (no  argument  having  been^had)  questions  of 
law  were  propounded  to  them. 

Lord  Chief  Justice    Tindal.     My   Lords,  her   Majesty's  jud^^es 
(with  the  exception  of  Mr.  Justice  Maule,  who  has  stated  his  opin- 
ion to  your  Lordships),  in  answering  the  questions  proposed  to  them 
by  your  Lordships'  House,  think  it  right,  in  the  first  place,  to  state 
1  The  statement  of  facts  in  this  case  has  been  abridged. 


SECT.  I.]  M'NAGHTEN's   CASE.  441 

that  they  have  forborne  entering  into  any  particular  discussion  upon 
these  questions,  from  the  extreme  and  ahnost  insuperable  difficulty  of 
applying  those  answers  to  cases  in  which  the  facts  are  not  brought 
judicially  before  them.  The  facts  of  each  particular  case  must  of 
necessity  present  themselves  with  endless  variety,  and  with  every 
shade  of  difference  in  each  case ;  and  as  it  is  their  duty  to  declare  the 
law  upon  each  particular  case,  on  facts  proved  before  them,  and  after 
hearing  argument  of  counsel  thereon,  they  deem  it  at  once  impracti- 
cable, and  at  the  same  time  dangerous  to  the  administration  of  justice, 
if  it  were  practicable,  to  attempt  to  make  minute  applications  of  the 
principles  involved  in  the  answers  given  by  them  to  your  Lordships' 
questions. 

They  have  therefore  confined  their  answers  to  the  statement  of  that 
which  they  hold  to  be  the  law  upon  the  abstract  questions  proposed 
by  your  Lordships  ;  and  as  they  deem  it  unnecessary,  in  this  par- 
ticular case,  to  deliver  their  opinions  seriatim^  and  as  all  concur  in 
the  same  opinion,  they  desire  me  to  express  such  their  unanimous 
opinion  to  your  Lordships. 

The  first  question  proposed  by  your  Lordships  is  this :  "  What  is? 
the  law  respecting  alleged  crimes  committed  by  persons  afflicted  with 
insane  delusion  in  respect  of  one  or  more  particular  subjects  or  per- 
sons ;  as,  for  instance,  where  at  the  time  of  the  commission  of  the 
alleged  crime  the  accused  knew  he  was  acting  contrary  to  law,  but  did 
the  act  complained  of  with  a  view,  under  the  influence  of  insane  delu- 
sion, of  redressing  or  revenging  some  supposed  grievance  or  injury, 
or  of  producing  some  supposed  public  benefit?" 

In  answer  to  which  question,  assuming  that  your  Lordships'  in- 
quiries are  confined  to  those  persons  who  labor  under  such  partial 
delusions  only,  and  are  not  in  other  respects  insane,  we  are  of  opinion 
that,  notwithstanding  the  party  accused  did  the  act'  complained  of 
with  a  view,  under  the  influence  of  insane  delusion,  of  redressing  or 
revenging  some  supposed  grievance  or  injury,  or  of  producing  some 
public  benefit,  he  is  nevertheless  punishable  according  to  the  nature 
of  the  crime  committed,  if  he  knew  at  the  time  of  committing  such 
crime  that  he  was  acting  contrary  to  law ;  by  which  expression  we 
understand  your  Lordships  to  mean  the  law  of  the  land. 

Your  Lordships  are  pleased  to  inquire  of  us,  secondly  :  "  What  are 
the  proper  questions  to  be  submitted  to  the  jury,  where  a  person  al- 
leged to  be  afflicted  with  insane  delusion  respecting  one  or  more; 
particular  subjects  or  persons  is  charged  with  the  commission  of  a 
crime  (murder,  for  example),  and  insanity  is  set  up  as  a  defence?" 
And,  thirdly:  "In  what  terms  ought  the  question  to  be  left  to  the 
jury  as  to  the  prisoner's  state  of  mind  at  the  time  when  the  act  was 
committed  ? "  And  as  these  two  questions  appear  to  us  to  be  more 
conveniently  answered  together,  we  have  to  submit  our  opinion  to 
be,  that  the  jurors  ought  to  be  told  in  all  cases  that  every  man  is  to 
be  presumed  to  be  sane,  and  to  possess  a  sufficient  degree  of  reason 


442  m'naghten's  case.  [chap,  vil 

to  be  responsible  for  his  crimes,  until  the  contrary  be  proved  to  their 
satisfaction  ;  and  that  to  establish  a  defence  on  the  ground  of  in- 
sanity, it  must  be  clearly  proved  that,  at  the  time  of  the  coramittmg 
of  the  act,  the  party  accused  was  laboring  under  such  a  defect  of 
reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing ;  or,  if  he  did  know  it,  that  he  did  not 
know  he  was  doing  what  was  wrong. ^  The  mode  of  putting  the 
latter  part  of  the  question  to  the  jury  on  these  occasions  has  gener- 
ally been,  whether  the  accused  at  the  time  of  doing  the  act,  knew: 
the  difference  between  right  and  wrong :  which  mode,  though  rarely, 
if  ever,  leading  to  any  mistake  with  the  jury,  is  not,  as  we  conceive, 
so  accurate,  when  put  generally  and  In  the  abstract,  as  when  put  with 
reference  to  the  party's  knowledge  of  right  and  wrong  in  respect  to  , 
the  very  act  with  which  he  is  charged.  If  the  question  were  to  be 
put  as  to  the  knowledge  of  the  accused  solely  and  exclusively  with 
reference  to  the  law  of  the  land,  it  might  tend  to  confound  the  jury, 
by  inducing  them  to  believe  that  an  actual  knowledge  of  the  law  of 
the  land  was  essential  in  order  to  lead  to  a  conviction ;  whereas  the 
law  is  administered  upon  the  principle  that  every  one  must  be  taken 
conclusively  to  know  it,  without  proof  that  he  does  know  it.  If  the 
accused  was  conscious  that  the  act  was  one  which  he  ought  not  to  do, 
and  if'  that  act  was  at  the  same  time  contrary  to  the  law  of  the  laud, 
he  is  punishable ;  and  the  usual  course  therefore  has  been  to  leave 
tlie  question  to  the  jury,  whether  the  party  accused  had  a  sufficient 
degree  of  reason  to  know  that  he  was  doing  an  act  that  was  wrong  ; 
and  this  course  we  think  is  correct,  accompanied  with  such  observa- 
tions and  explanations  as  the  circumstances  of  each  particular  case 
may  require. 

The  fourth  question  which  your  Lordships  have  proposed  to  us  is 
this:  "If  a  person  under  an  insane  delusion  as  to  existing  facts 
commits  an  offence  in  consequence  thereof,  is  he  thereby  excused?"]! 
To  which  question  the  answer  must  of  course  depend  on  the  naturq  \ 
of  the  delusion ;  but  making  the  same  assumption  as  we  did  beforeJ 
namely,  that  he  labors  under  such  partial  delusions  only,  and  is  noli 
in  other  respects  insane,  we  think  he  must  be  considered  in  the  same'    • 

1  "  I  think  that  any  one  would  fall  within  the  description  in  question  who  was 
deprived  by  disease  affecting  the  mind  of  the  power  of  ymssing  a  rational  judgment  on 
the  moral  character  of  the  act  which  he  meant  to  do.  Snjipose,  for  instance,  that  by 
reason  of  disease  of  the  brain  a  man's  mind  is  filled  with  delusions  which,  if  true, 
would  not  justify  or  excuse  his  proposed  act,  but  which  in  themselves  are  so  wild  and 
astonishing  as  to  make  it  impossible  for  him  to  reason  about  thera  calmlj',  or  to 
reason  calmly  on  matters  connected  with  them.  Suppose,  too,  that  the  succession  of 
insane  thoughts  of  one  kind  and  another  is  so  rapid  as  to  confuse  him  ;  and  finally, 
suppose  that  his  will  is  weakened  by  his  disease,  that  he  is  unequal  to  the  effort  of 
calm  sustained  thought  upon  any  subject,  and  especially  upon  subjects  connected  with 
his  delusion  ;  can  he  be  said  to  know  or  have  a  capacity  of  knowing  that  the  act  which 
he  proposes  to  do  is  wrong?  I  should  say  he  could  not."  2  Stephen  Hist.  Crim. 
Law,  164.  —  Ed 


SECT.  I.]  REGINA   V.    HAYNES.  443 

situation  as  to  responsibility  as  if  the  facts  with  respect  to  which  the 
delusion  exists  were  real.  For  example,  if  under  the  influence  of  his 
delusion  he  supposes  another  man  to  be  in  the  act  of  attempting  to 
take  away  his  life,  and  he  kills  that  man,  as  he  supposes,  in  self-  ^ 
defence,  he  would  be  exempt  from  punishment.  If  his  delusion  was 
that  the  deceased  had  inflicted  a  serious  injury  to  his  character  and 
fortune,  and  he  killed  him  in  revenge  for  such  supposed  injury,  he 
would  be  liable  to  punishment.^ 


REGINA  V.  HAYNES. 

"Winchester  Assizes.     1859. 

[Reported  1  Foster  ^-  Finlai/son,  666.] 

The  prisoner,  a  soldier,  was  charged  with  the  murder  of  Mary 
MacGowau,  at  the  camp  at  Aldershott. 

The  deceased  was  an  "unfortunate  woman"  with  whom  the  prisoner 
had  been  intimate,  and  was  on  the  most  friendly  terms  up  to  the 
moment  of  the  commission  of  the  offence.  No  motive  was  assigned 
for  the  perpetration  of  the  act ;  and  general  evidence  was  given  that 
the  prisoner,  while  in  Canada,  having  seduced  a  young  woman  under 
a  promise  of  marriage,  which  he  had  been  unable  to  fulfil  by  reason 
of  his  regiment  having  been  ordered  home,  his  mind  had  been  much 
affected  by  "the  circumstance.^ 

Bramavell,  B.,to  the  jury.  As  to  the  defence  of  insanity  set  up 
for  the  prisoner,  I  will  read  you  what  the  law  is  as  stated  by  the  judges 
in  answer  to  questions  put  to  them  by  the  House  of  Lords.  (Having 
done  so.)  It  has  been  urged  for  the  prisoner  that  you  should  acquit 
him  on  the  ground  that,  it  being  impossible  to  assign  any  motive  for 
the  perpetration  of  the  offence,  he  must  have  been  acting  under  what 
is  called  a  powerful  and  irresistible  influence  or  homicidal  tendency. 
But  I  must  remark  as  to  that  that  the  circumstance  of  an  act  benig 
apparently  motiveless  is  not  a  ground  from  which  you  can  safely  infer 

1  The  answer  to  the  fifth  question  is  omitted.  Maule,  J.  delivered  a  separate 
opinion,  which  he  prefaced  by  stating  that  he  felt  great  difficulty  in  answering  the 
questions  :  first,  because  they  did  not  appear  to  arise  out  of  a  particular  case  which 
niic'ht  explain  or  limit  tlie  generality  of  their  terms  ;  secondly,  because  he  had  heard 
no  argument  on  the  subject  of  the  questions  ;  and  thirdly,  from  a  fear  that  the  an- 
swers might  embarrass  the  administration  of  justice,  when  they  should  be  cited  in 
criminal  trials.  In  reply  to  the  first  question  he  said  that  "  to  render  a  person  irre- 
si^onsible  for  crime  on  account  of  unsoundness  of  mind,  the  unsoundness  should  be 
such  as  renders  him  incapable  of  knowing  right  from  wrong."  In  reply  to  the 
second  and  third  questions,  he  said  that  the  matters  referred  to  in  them  were  entirely 
within  the  discretion  of  the  judge  trying  the  case.  To  the  fourth  question  he  gave 
the  same  answer  as  to  the  first.  —  Ed. 

2  Part  of  the  case,  relating  to  another  point,  is  omitted. 


444  COMMONWEALTH   V.   ROCxERS.  [CHAP.  VII. 

the  existence  of  such  an  influence.  Motives  exist  unknown  and  innu- 
merable which  might  prompt  the  act.  A  morbid  and  restless  (but 
resistible)  thirst  for  blood  would  itself  be  a  motive  urging  to  such  a 
deed  for  its  own  relief ;  but  if  an  influence  be  so  powerful  as  to  be , 
termed  irresistible,  so  much  the  more  reason  is  there  why  we  should 
not  withdraw  any  of  the  safeguards  tendiug  to  counteract  it.  There 
are  three  powerful  restraints  existing,  all  tending  to  the  assistance  of 
the  person  who  is  suffering  under  such  an  influence,  —  the  restraint  of 
religion,  the  restraint  of  conscience,  and  the  restraint  of  law.  But  if 
thelnfluence  itself  be  held  a  legal  excuse,  rendering  the  crime  dispun- 
ishable, you  at  once  withdraw  a  most  powerful  restraint,  —  that  for- 
bidding and  punishing  its  perpetration.  We  must  therefore  return  to 
the  simple  question  you  have  to  determine,  —  did  the  prisoner  know 
the  nature  of  the  act  he  was  doing ;  and  did  he  know  that  he  was 
doing  what  was  wrong?  Guilty.    Sentence,  death. 

The  prisoner  was  reprieved. 


COMMONWEALTH  v.  ROGERS. 
Supreme  Judicial  Court  of  Massachusetts.    1844. 

[Reported  7  Metcalf,  500.] 

The  defendant  was  indicted  for  the  murder  of  Charles  Lincoln, 
Junior,  warden  of  the  state  prison,  on  the  15th  of  June,  1843.^ 

The  evidence  was  full  and  uncontradicted  that  the  defendant,  at 
the  time  alleged  in  the  indictment,  was  a  prisoner  in  the  state  prison, 
and  then  and  there  killed  the  warden  of  the  prison  by  stabbing  him  in 
the  neck  with  a  knife.  The  sole  ground  on  which  the  defendant's 
counsel  placed  his  defence  was  that  he  -was  insane  when  he  committed 
the  homicide  ;  and  most  of  the  evidence,  on  both  sides,  related  to  this 
single  point.  The  superintendents  of  several  insane  hospitals  were 
witnesses  in  the  case,  and  their  testimony  tended  strongly  to  prove 
that  the  defendant,  at  the  time  of  the  homicide,  was  laboring  under 
that  species  of  insanity  which  is  hereinafter  commented  on  by  the 
chief  justice  in  the  charge  of  the  court  to  the  jury. 

The  opinion  of  the  court  on  the  law  of  the  case  was  given  in  the 
following  charge  to  the  jury  by 

Shaw,  C.  J.  In  order  to  constitute  a  crime,  a  person  must  have 
intelligence  and  capacity  enough  to  have  a  criminal  intent  and  pur- 
pose ;  and  if  his  reason  and  mental  powers  are  either  so  deficient  that 
he  has  no  will,  no  conscience  or  controlling  mental  power,  or  if, 
through  the  overwhelming  violence  of  mental  disease  his  intellectual 

1  Part  of  the  case,  not  involving  a  question  of  insanity,  i^  omitted. 


SECT.  I.]  COMMONWEALTH  V.   ROGERS.  445 

power  is  for  the  time  obliterated,  he  is  not  a  responsible  jQoral  agent, 
and  is  not  punishable  for  criminal  acts. 

But  these  are  extremes  easily  distinguished,  and  not  to  be  mistaken. 
The  difficulty  lies  between  these  extremes,  in  the  cases  of  partial  insan- 
ity, where  the  mind  may  be  clouded  and  weakened,  but  not  incapable 
of  'remembering,  reasoning,  and  judging,  or  so  perverted  by  insane 
delusion  as  to  act  under  false  impressions  and  influences.     In  these 
cases,  the  rule  of  law,  as  we  understand  it,  is  this  :  A  man  is  not  to\ 
be  excused  from  responsibility,  if  he  has  capacity  and  reason  sufficient  \ 
to  enable  him  to  distinguish  between  right  and  wrong  as  to  the  par-  \ 
ticular  act  he  is  then  doing,  —  a  knowledge  and  consciousness  that  the  \ 
act  he  is  doing  is  wrong  and  criminal,  and  will  subject  him  to  punish- 
ment.    In  order  to  be  responsible,  he  must  have  sufficient  power  of 
memory  to  recollect  the  relation  in  which  he  stands  to  others,  and  in 
which  others  stand  to  him ;  that  the  act  he  is  doing  is  contrary  to  the 
plain  dictates  of  justice  and  right,  injurious  to  others,  and  a  violation 
of  the  dictates  of  duty. 

On  the  contrary,  although  he  may  be  laboring  under  partial  insanity, 
if  he  still  understands  the  nature  and  character  of  his  act,  and  its  con- 
sequences ;  if  he  has  a  knowledge  that  it  is  wrong  and  criminal,  and  a 
mental  power  sufficient  to  apply  that  knowledge  to  his  own  case,  and 
to  know  that,  if  he  does  the  act  he  will  do  wrong  and  receive  pun- 
ishment, —  such  partial  insanity  is  not  sufficient  to  exempt  him  from 
responsibility  for  criminal  acts. 

If,  then,  it  is  proved,  to  the  satisfaction  of  the  jury,  that  the  mind  of 
the  accused  was  in  a  diseased  and  unsound  state,  the  question  will  be 
whether  the  disease  existed  to  so  high  a  degree  that  for  the  time  being 
it  overwhelmed  the  reason,  conscience,  and  judgment,  and  whether 
the  prisoner,  in  committing  the  homicide,  acted  from  an  irresistible 
and  uncontrollable  impulse.  If  so,  then  the  act  was  not  the  act  of 
a  voluntary  agent,  but  the  involuntary  act  of  the  body,  without  the 
concurrence  of  a  mind  directing  it. 

The  character  of  the  mental  disease  relied  upon  to  excuse  the  accused 
in  this  case  is  partial  insanity,  consisting  of  melancholy,  accompanied 
by  delusion.  The  conduct  may  be  in  many  respects  regular,  the  mind 
acute,  and  the  conduct  apparently  governed  by  rules  of  propriety,  and 
at  the  same  time  there  may  be  insane  delusion  by  which  the  mind  is 
perverted.  The  most  common  of  these  cases  is  that  of  monomania,  when 
the  mind  broods  over  one  idea  and  cannot  be  reasoned  out  of  it.  This 
may  operate  as  an  excuse  for  a  criminal  act  in  one  of  two  modes  : 
1.  Either  the  delusion  is  such  that  the  person  under  its  influence  has  a 
real  and  firm  belief  of  some  fact,  not  true  in  itself,  but  which,  if  it 
were  true,  would  excuse  his  act,  —  as  where  the  belief  is  that  the  party 
killed  had  an  immediate  design  upon  his  life,  and  under  that  belief 
the  insane  man  kills  in  supposed  self-defence.  A  common  instance  is 
where  he  fully  believes  tliat  the  act  he  is  doing  is  done  by  the  immedi- 
ate command  of  God,  and  he  acts  under  the  delusive  but  sincere  belief 


? 


446  COMMONWEALTH   V.  EOGEKS.  [CHAP.  VII. 

that  what  he  is  doing  is  by  the  commaud  of  a  superior  power  which 
supersedes  all  human  laws,  and  the  laws  of  uature.  2.  Or  this  state 
of  delusion  indicates  to  an  experienced  person  that  the  mind  is  in  a 
diseased  state  ;  that  the  known  tendency  of  that  diseased  state  of  the 
mind  is  to  break  out  into  sudden  paroxysms  of  violence,  venting  itself 
in  homicide  or  other  violent  acts  towards  friend  or  foe  indiscriminately ; 
so  that,  although  there  were  no  previous  indications  of  violence,  yet 
the  subsequent  act.  connecting  itself  with  the  previous  symptoms  and 
indications,  will  enable  an  experienced  pei-son  to  say  that  the  outbreak 
was  of  such  a  character  that  for  the  time  being  it  must  have  overborne 
memory  and  reason ;  that  the  act  was  the  result  of  the  disease  and 
not  of  a  mind  capable  of  choosing ;  in  short,  that  it  was  the  result  of 
uncontrollable  impulse,  and  not  of  a  person  acted  upon  by  motives, 
and  governed  by  the  will. 

The  questions,  then,  in  the  present  case,  will  be  these  :  1.  Was  there 
such  a  delusion  and  hallucination?  2.  Did  the  accused  act  under  a 
false  but  sincere  belief  that  the  warden  had  a  design  to  shut  him  up, 
and,  under  that  pretext,  destroy  his  life ;  and  did  he  take  this  means 
to  prevent  it?  3.  Are  the  facts  of  such  a  character,  taken  in  connec- 
tion with  the  opinions  of  the  professional  witnesses,  as  to  induce  the 
jury  to  believe  that  the  accused  had  been  laboring  for  several  days 
under  monomania,  attended  with  delusion  ;  and  did  this  indicate  such 
a  diseased  state  of  the  mind  that  the  act  of  killing  the  warden  was  to 
be  considered  as  an  outbreak  or  paroxysm  of  disease,  which  for  the 
time  being  overwhelmed  and  superseded  reason  and  judgment,  so  that 
the  accused  was  not  an  accountable  agent  ? 

If  such  was  the  case,  the  accused  is  entitled  to  an  acquittal ;  other- 
wise, as  the  evidence  proves  beyond  all  doubt  the  fact  of  killing, 
without  provocation,  by  the  use  of  a  deadly  weapon,  and  attended  with 
circumstances  of  violence,  cruelty,  and  barbarity,  he  must  undoubtedly 
be  convicted  of  wilful  murder. 

The  ordinary  presumption  is  that  a  person  is  of  sound  mind  until 
the  contrary  appears  ;  and  in  order  to  shield  one  from  criminal  respon- 
sibility, the  presumption  must  be  rebutted  by  proof  of  the  contrary, 
satisfactory  to  the  jury.  Such  proof  may  arise,  either  out  of  the  evi- 
dence offered  by  the  prosecutor  to  establish  the  case  against  the  accused, 
or  from  distinct  evidence,  offered  on  his  part ;  in  either  case,  it  must 
be  sufficient  to  establish  the^  fact  of  insanity  :  otherwise,  the  presump- 
tion will  stand. 

The  jury,  after  being  in  consultation  several  hours,  came  into  court, 
and  asked  instructions  upon  these  two  questions:  '•  Must  the  jury  be 
satisfied,  beyond  a  doubt,  of  the  insanity  of  the  prisoner,  to  entitle 
hmi  to  an  acquittal?  And  what  degree  of  insanitv  will  amount  to  a 
justification  of  the  offence?" 

In  answer  to  the  fii-st  of  these  questions,  the  chief  justice  repeated 
liis  former  remai'ks  on  the  same  point,  and  added  that  if  the  prepon- 


SECT.  I.]  STATE   V.    EICHAED3.  447 

derance  of  the  evidence  was  in  favor  of  the  insanity  of  the  prisoner, 
the  jury  would  be  authorized  to  find  him  insane.  In  answer  to  the 
second  question,  the  clilef  justice  added  nothing  to  the  instructions 
which  he  had  previously  given. 

The  jury  afterwards  returned  a  verdict  of  "  Not  guilty,  Ly  reason  of 
insanity."  1  ^2><^ 

STATE   V.   RICHARDS. 
Superior  Court,  Coxxecticut.     1873. 

[Reported  39  Connecticut,  591.] 

Information  for  burning  a  barn  ;  brought  to  the  Superior  Court  for 
Windham  County  and  tried  to  the  jury,  at  its  August  term.  187.3,  on 
the  plea  of  not  guilty,  before  Seymour,  J. 

The  defence  was  that  the  prisoner  had  not  sufficient  mental  capacity 
to  be  criminally  responsible  for  the  act.  The  charge  of  the  judge, 
which  sufficiently  states  the  facts  of  the  case,  was  as  follows  :  — 

Seymour,  J.  The  evidence  seems  ample  to  warrant  you  in  finding 
that  the  burning  complained  of  was  caused  b}'  the  prisoner.  Your 
attention  has  been  turned  mainly  to  the  question  whether  the  act  was 
done  with  the  felonious  intent  charged,  and  this  question  depends 
mainly  upon  another,  whether  the  accused  has  sufficient  mental  capa- 
city to  warrant  us  in  imputing  to  him  a  felonious  intent. 

That  he  is  considerably  below  par  in  intellect  is  apparent  to  us  all. 
This  is  indicated  by  his  countenance  and  general  appearance. 

The  same  thing  is  indicated  by  his  extraordinaiy  conduct  at  the 
fire.  As  the  flames  were  bursting  out  he  was  seen  on  all  fours  crawl- 
ing back  from  under  the  burning  barn,  with  no  clothing  upon  him 
except  his  shirt  and  trousers.  The  day  was  excessively  cold.  He 
remained  some  half-hour,  thus  scantily  clothed,  gazing  stupidly  at  the 
blaze,  until  ordered  into  the  house.  All  this  took  place  in  broad  da}'- 
light,  in  plain  view  of  Mr.  Gallup's  house. 

But  it  is  undoubtedly  true,  as  the  attorney  for  the  state  contends, 
that  mere  inferiority  of  intellect  is  no  answer  to  the  prosecution.  We 
are,  therefore,  called  upon  in  this  case  to  decide  an  interesting  and 
difficult  question,  to  wit,  whether  the  accused  has  sufficient  mind  to 
be  held  responsible  as  a  criminal. 

1  "To  punish  a  homicide,  committed  by  the  insane  victim  of  such  delusion,  and 
under  its  resistless  influence,  would  be  punishing  for  what  every  other  man  in  the  same 
condition  would  ever  do,  in  defiance  of  all  penal  consequences;  and,  therefore,  such 
punishment  would  be  useless  and  inconsistent  with  the  preventive  aim  of  all  criminal 
jurisprudence."  —  Robertsox,  J.,  in  Smith  v.  Com.,  1  Duv.  224.  . 

"Whether  passion  or  insanity  was  the  ruling  force  and  controlling  agency  which 
led  to  the  homicide,  —  in  other  words,  whether  the  defendant's  act  was  the  insane  act 
of  an  unsound  mind,  or  the  outburst  of  violent,  reckless,  and  uncontrolled  passion,  in 
a  mind  not  diseased,  — is  the  practical  question  which  the  jury  should  be  told  to  deter* 
mine."  —  Dillon,  C.  J.,  in  State  v,  Felter,  25  Iowa,  67.  —  Ed. 


448  STATE    V.    RICHARDS.  [CHAP.  VII. 

He  is  not  a  mere  idiot,  nor  does  he  appear  to  be  a  lunatic.  He 
suffers  from  want  of  mind  rather  than  from  derangement  or  delusion, 
and  the  question  is  whether  the  want  of  mind  is  such  as  to  entitle  him 
to  acquittal  on  the  ground  of  what  in  law  is  termed  dementia. 

This  inquiry  is  attended  with  inherent  difficulties.  Our  knowledge 
of  our  own  minds  is  imperfect ;  our  knowledge  of  the  precise  mental 
condition  of  another  is  necessarily  still  more  imperfect.  We  as  triers 
are  obliged  to  reh'  upon  the  evidence  furnished  us  b}-  witnesses  whose 
means  of  knowledge  are  limited,  and  who  find  great  difficulty  in  com- 
municating to  us,  on  a  subject  of  this  nature,  what  they  do  know. 

Our  principal  embarrassment  arises,  however,  from  the  want  of  a 
definite  measure  of  mental  capacity.  Eminent  judges  and  learned 
commentators  have  attempted  to  furnish  rules  and  tests  for  the  guid- 
ance of  triers  in  cases  of  this  kind,  but  upon  examination  these  rules 
and  tests  turn  out  to  be  imperfect  and  unsatisfactory. 

It  was  formerl}'  thought  that  the  jury  might  properly  convict  if  the 
accused  had  any  sense  of  right  and  wrong,  or  if  he  was  aware  that 
punishment  would  follow  the  commission  of  an  offence. 

But  children  of  very  tender  years  have  some  sense  of  right  and 
wrong,  and  fully  understand  that  punishment  will  follow  transgression. 
Such  children  are  subjected  by  their  parents  to  discipline,  and  are  by 
gentle  punishments  restrained  from  wrong-doing ;  but  our  sense  of 
humanity  would  be  greath'  shocked  at  the  thought  of  subjecting  chil- 
dren to  the  penalties  of  statute  law  because  some  sense  of  right  and 
wrong  and  fear  of  punishment  had  been  developed  in  them. 

So,  again,  it  is  often  said  in  the  books  that  a  person  is  to  be  deemed 
responsible  for  crime  if  he  understands  the  consequences  and  effects  of 
the  act  laid  to  his  charge.  This  is  undoubtedly  and  obviously  true  if 
he  has  such  understanding  and  appreciation  of  consequences  as  per- 
tain to  other  men.  But  if  he  has  less  of  it  than  is  common  to  men 
in  general,  how  much  less  must  it  be  to  escape  responsibility? 

1  think  the  accused  had  some  knowledge  of  the  consequences  of  his 
acts.  He  probably  knew  that  by  igniting  a  match  and  throwing  it 
into  a  hay-mow  a  fire  would  be  kindled  and  that  the  barn  would 
thereby  be  consumed.  He  perhaps  also  had  some  appreciation  of  the 
loss  and  destruction  of  property  which  would  ensue. 

But  I  am  not  willing  to  say  that  some  knowledge  of  consequences, 
however  faint  and  imperfect,  is  sufficient  to  warrant  you  in  convict- 
ing the  prisoner.  I  can  give  you  no  precise  rule,  but  I  think  it 
clear  that  if  the  prisoner's  perception  of  consequences  and  effects 
was  only  such  as  is  common  to  children  of  tender  years  he  ought  to 
be  acquitted. 

And  this  leads  me  to  refer  to  the  rule  adopted  by  an  eminent  Eng- 
lish judge.  Lord  Hale.  He  reasoned  that,  inasmuch  as  children 
under  fourteen  years  of  age  are  prima  facie  incapable  of  crime,  im- 
beciles ought  not  to  be  held  responsible  criminally  unless  of  capacity 
equal  to  that  of  ordinary  children  of  that  ao^e. 


SECT.  lJ  state    V.    RICHARDS.  449 

If  this  test  be  adopted,  the  prisoner  will  upon  the  testimony  be  en- 
titled to  an  acquittal.  The  principal  witnesses  for  the  prosecution  say 
that  he  is  inferior  in  intellect  to  children  of  ten  years  of  age,  and  sev- 
eral very  intelligent  witnesses  for  the  defence  testify  that  they  are 
acquainted  with  many  children  of  six  years  who  are  his  superiors  in 
mental  capacity. 

I  am  inclined  to  recommend  Lord  Hale's  rule  to  3-our  adoption, 
not  however  without  qualifications  which  I  think  it  important  to 
observe. 

And  first,  this  test,  like  all  others  which  I  know  of,  is  imperfect. 

Probably  no  two  of  us  have  the  same  idea  of  the  capacity  of  children 
of  fourteen  years  of  age  ;  and  then  there  is  this  further  difficulty,  that 
there  can  be  no  accurate  comparison  in  detail  between  the  healthy  and 
properly  balanced,  though  immature,  mind  of  a  child,  and  the  un- 
healthy, abnormal,  and  shrivelled  intellect  of  an  imbecile.  The  com- 
parison therefore  is  only  of  the  general  result  in  their  respective 
appreciation  of  right  and  wrong  and  of  consequences  and  effects. 

This  further  consideration  ought  also  to  be  borne  in  mind ;  that 
though  in  modern  times  persons  under  fourteen  are  seldom  subjected 
to  the  penalties  of  the  criminal  code,  yet  in  law  children  between  seven 
and  fourteen  may  be  subjects  of  punishment  if  they  are  shown  to  be 
of  sufficient  capacity  to  commit  crimes.  In  applying  Lord  Hale's 
rule  therefore,  the  child  to  be  taken  as  the  standard  ought  not  to  be 
one  who  has  had  superior  advantages  of  education,  but  should  rather 
be  one  in  humble  life,  with  only  ordinary  training. 

And  after  all,  gentlemen,  you  see  that  I  can  furnish  you  with  no 
definite  measure  of  mental  capacity  to  apply  to  the  prisoner.  The 
whole  matter  must  be  submitted  to  your  sound  judgment.  You  will 
say  whether  the  prisoner  has  such  knowledge  of  right  and  wrong,  and 
such  appreciation  of  the  consequence  and  effects  of  his  acts,  as  to  be 
a  proper  subject  of  punishment.  Opinions  on  this  subject  have  been 
expressed  by  most  of  the  witnesses  who  have  testified.  These  opinions 
depend  for  their  value  mainly  upon  the  facts  with  which  they  are 
connected.  You  have  the  advantage  of  being  able  to  compare  with 
each  other  all  the  facts  which  have  been  brought  to  your  notice  bear- 
ing upon  the  prisoner's  mental  condition.  You  will  look  carefully  at 
all  these  facts.  The  history  of  the  prisoner's  life  is  somewhat  signifi- 
cant. From  early  childhood  it  has  been  spent  in  almhouses,  sub- 
jected to  constant  constraint.  In  the  most  ordinary  acts  of  his  life  he 
has  been  governed  by  the  superior  will  of  others  to  whose  care  he 
has  been  committed.  He  has,  it  appears,  been  seldom  left  to  the 
free  guidance  of  his  own  judgment.  When  so  left,  he  seems  to  have 
acted  without  forecast,  under  the  pressure  of  immediate  wants  and 
impulses. 

If  you  acquit  the  prisoner  on  the  ground  of  want  of  mental  capacity 
you  will  so  say  in  your  verdict,  in  order  that  the  prisoner  may  in  that 
event  have  the  benefit  under  our  statute  of  a  home  where  he  will  be 

29 


450 


FLANAGAN  V.    PEOPLE. 


[chap,  VIL 


kindly  cared  for,  but  kept  under  such  restraints  as   to  prevent  his 
doing  injury  to  the  persons  or  property  of  others. 

The  jury  acquitted  the  prisoner,  stating  in  their  verdict  that  the 
acquittal  was  on  the  ground  of  want  of  mental  capacity.^ 


FLANAGAN  v.   PEOPLE. 
Court  of  Appeals  of  New  York.     1873. 

[Reported  52  New  York,  467.] 

Andrews,  J.  The  judge,  among  other  things,  charged  the  jury  that, 
"  to  establish  a  defence  on  the  ground  of  insanity,  it  must  be  clearly 
proven  that,  at  the  time  of  committing  the  act  (the  subject  of  the  in- 
dictment), the  party  accused  was  laboring  under  such  a  defect  of  reason 
from  disease  of  the  mind  as  not  to  know  the  nature  and  quality  of  the 
act  he  was  doing ;  and,  if  he  did  know  it,  that  he  did  not  know  he 
was  doing  wrong ; "  and  to  this  part  of  the  charge  the  prisoner,  by  his 
counsel,  excepted. 

The  part  of  the  charge  excepted  to  was  in  the  language  employed 
by  TiNDAL,  C.  J.,  in  McNaghten's  Case,  10  Clarke  &  Fin.  210,  in  the 
response  of  the  English  judges  to  the  questions  put  to  them  by  the 
House  of  Lords  as  to  what  instructions  should  be  given  to  the  jury,  on 
a  trial  of  a  prisoner  charged  with  crime,*  when  the  insane  delusion  of 
the  prisoner,  at  the  time  of  the  commission  of  the  alleged  act,  was 
interposed  as  a  defence. 

All  the  judges,  except  one,  concurred  in  the  opinion  of  Tindal,  C.  J., 
and  the  case  is  of  the  highest  authority ;  and  the  rule  declared  in  it  has 
been  adhered  to  by  the  English  courts. 

Maule,  J.,  gave  a  separate  opinion,  in  which  he  declared  that,  to 
render  a  person  irresponsible  for  crime  on  account  of  unsoundness  of 
mind,  the  unsoundness  should,  according  to  the  law,  as  it  has  long  been 
understood  and  held,  be  such  as  to  render  him  incapable  of  knowing 
right  from  wrong. 

In  the  case  of  The  People  v.  Bodine,  4  Denio,  9,  the  language  of 
Tindal,  C.  J.,  in  the  McNaghten  Case,  was  quoted  and  approved  ;  and 
Beardsley,  J.,  said :  "  Where  insanity  is  interposed  as  a  defence  to  an 
indictment  for  an  alleged  crime,  the  inquiry  is  always  brought  down 
to  the  single  question  of  a  capacit}'  to  distinguish  between  right  and 
wrong  at  the  time  the  act  was  done." 

Tlie  rule  was  reaffirmed  in  the  case  of  Willis  v.  The  People,  32  N.  Y., 
717,  and  it  must  be  regarded  as  the  settled  law  of  this  State,  that  the 
test  of  responsibilit)'  for  criminal  acts,  where  unsoundness  of  mind  is 
interposed  as  a  defence,  is  the  capacity-  of  the  defendant  to  distinguish 


1  See  Wartena  v.  State,  105  Ind.  445,  5  N.  E.  20.  —  Ed. 


SECT.  I.] 


PARSONS   V.    STATE. 


451 


between  right  and  wrong  at  the  time  of  and  with  respect  to  the  act 
which  is  the  subject  of  the  inquiry. 

We  are  asked  in  this  case  to  introduce  a  new  element  into  the  rule 
of  criminal  responsibility-  in  cases  of  alleged  insanit}',  and  to  hold  that 
the  power  of  choosing  right  from  wrong  is  as  essential  to  legal  respon- 
sibility as  the  capacity  of  distinguishing  between  them ;  and  that  the 
absence  of  the  former  is  consistent  with  the  presence  of  the  latter. 

The  argument  proceeds  upon  the  theory  that  there  is  a  form  of 
insanity  in  which  the  faculties  are  so  disordered  and  deranged  that  a 
man,  though  he  perceives  the  moral  quality  of  his  acts,  is  unable  to 
control  them,  and  is  urged  by  some  mysterious  pressure  to  the  com- 
mission of  acts,  the  consequences  of  which  he  anticipates  but  cannot 
avoid. 

Whatever  medical  or  scientific  authority  there  may  be  for  this  view, 
it  has  not  been  accepted  by  courts  of  law. 

The  vagueness  and  uncertainty  of  the  inquiry  which  would  be  opened, 
and  the  manifest  danger  of  introducing  the  limitation  claimed  into  the 
rule  of  responsibilit}'  in  cases  of  crime,  may  well  cause  courts  to  pause 
before  assenting  to  it. 

Indulgence  in  evil  passions  weakens  the  restraining  power  of  the 
will  and  conscience ;  and  the  rule  suggested  would  be  the  cover  for  the 
commission  of  crime  and  its  justification.  The  doctrine  that  a  criminal 
act  may  be  excused  upon  the  notion  of  an  irresistible  impulse  to  com- 
mit it,  wliere  the  offender  has  the  abilit}'  to  discover  his  legal  and  moral 
duty  in  respect  to  it,  has  no  place  in  the  law.  Rolfe,  B.,  in  Rogers  v. 
Allunt,  where,  on  the  trial  of  an  indictment  for  poisoning,  the  defend- 
ant was  alleged  to  have  acted  under  some  moral  influence  which  he 
could  not  resist,  said  :  "  Every  crime  was  committed  under  an  influence 
of  such  a  description  ;  and  the  object  of  the  law  was  to  compel  people 
to  control  these  influences." 

_  Judqment  affirmed. 


PARSONS   V.   STATE. 
Supreme  Court  of  Alabama.     1886. 

[Reported  81  Ala.  577.] 

SoMERViLLE,  J.^  In  this  case  the  defendants  have  been  convicted  of 
the  murder  of  Bennett  Parsons,  b}'  shooting  him  with  a  gun,  one  of  the 
defendants  being  the  wife  and  the  other  the  daughter  of  the  deceased. 
Tlie  defence  set  up  in  the  trial  was  the  plea  of  insanity,  the  evidence 
tending  to  show  that  the  daughter  was  an  idiot,  and  the  mother  and 
wife  a  lunatic,  subject  to  insane  delusions,  and  that  the  killing  on  her 
part  was  the  offspring  and  product  of  those  delusions. 


1  Part  only  of  the  opinion  is  given.     The  dissenting  opinion  of  Stone,  C.  J.,  is 
omitted. 


452  PAKSONS   V.   STATE.  [CIIAP.  VIL 

The  rulin<Ts  of  the  court  raise  some  questions  of  no  less  difficulty 
than  of  interest,  for,  as  observed  by  a  distinguished  American  judge, 
"of  all  medioo-k'oal  questions,  those  connected  with  insanity  are  the 
most\lifflcult  and^)erplexing."  (Per  Dillon,  C.  J.,  in  State  ..  Felt^r, 
25  Iowa  67  )  It  has  become  of  late  a  matter  of  comment  among  intel- 
licrent  men,  including  the  most  advanced  thinkers  in  the  medical  and 
le'^cral  professions,  that  the  deliverances  of  the  law  courts  on  this  branch 
ot^our  jurisprudence  have  not  heretofore  been  at  all  satisfactory,  either 
in  tlie"  soundness  of  their  theories,  or  in  their  practical  application. 
The  earliest  English  decisions,  striving  to  establish  rules  and  tests  on 
the  subject,  including  alike  the  legal  rules  of  criminal  and  civil  respon- 
sibility, and  the  supposed  tests  of  the  existence  of  the  disease  of  insanity 
itself," are  now  admitted  to  have  been  deplorably  erroneous,  and,  to  say 
nothing  of  their  vacillating  character,  have  long  since  been  abandoned. 
The  views  of  the  ablest  of  the  old  text  writers  and  sages  of  the  law 
were  equally  confused  and  uncertain  in  the  treatment  of  these  subjects, 
and  they  are  now  entirely  exploded.  Time  was  in  the  history  of  our 
laws  that  the  veriest  lunatic  was  debarred  from  pleading  his  providen- 
tial affliction  as  a  defence  to  his  contracts.  It  was  said,  in  justification 
of  so  absurd  a  rule,  that  no  one  could  be  permitted  to  stultify  himself 
by  pleading  his  own  disability.  So  great  a  jurist  as  Lord  Coke,  in  his 
attempted  classification  of  madmen,  laid  down  the  legal  rule  of  criminal 
responsibility  to  be  that  one  should  "  ivhoUy  have  lost  his  memory  and 
understanding;"  as  to  which  Mr.  Erskine,  when  defending  Hadfield 
for  shooting  the  king,  in  the  year  1800,  justly  observed  :  "No  such 
madman  ever  existed  in  the  world."  After  this  great  and  historical 
case,  the  existence  of  delusion  promised  for  a  while  to  become  the 
sole  test  of  insanity,  and  acting  under  the  duress  of  such  delusion  was 
recognized  in  effect  as  the  legal  rule  of  responsibility.  Lord  Kenyon, 
after  ordering  a  verdict  of  acquittal  in  that  case,  declared  with  empha- 
sis that  there  was  "  no  doubt  on  earth  "  the  law  was  correctly  stated  in 
the  argument  of  counsel.  But,  as  it  was  soon  discovered  that  insanity 
often  existed, without  delusions,  as  well  as  delusions  without  insanit}-, 
this  view  was  also  abandoned.  Lord  Hale  had  before  declared  that  the 
rule  of  responsibility  was  measured  by  the  mental  capacity  possessed 
by  a  child  fourteen  years  of  age  ;  and  Mr.  Justice  Tracy,  and  other 
judges,  had  ventured  to  decide  tliat,  to  be  non-punishable  for  alleged 
acts  of  crime,  "a  man  must  be  totally  deprived  of  his  understanding 
and  memory,  so  as  not  to  know  what  lie  was  doing,  no  more  than  au 
infant,  a  brute,  or  a  icild  beast."  (Arnold's  Case,  16  How.  St.  Tr. 
764.)  All  these  rules  have  necessarily  been  discarded  in  modern  times 
in  the  light  of  the  new  scientific  knowledge  acquired  b}'  a  more  thor- 
ough study  of  the  disease  of  insanity.  In  Bellingham's  Case,  decided 
in  1812  by  Lord  Mansfield  at  the  Old  Bailey  (Coll.  on  Lun.  630),  the 
test  was  held  to  consist  in  a  knowledge  that  murder,  the  crime  there 
committed,  was  "against  the  laws  of  God  and  nature,"  thus  meaning 
an   ability  to  distinguish  between  right  and  wrong   in   the   abstract. 


SECT.  I.]  *  PARSONS  V.   STATE.  453 

This  rule  was  not  adbered  to,  but  seems  to  have  been  modified  so  as  to 
make  the  test  rather  a  knowledge  of  right  and  wrong  as  applied  to  the 
particular  act.  (Lawson  on  Insanity,  231,  §  7  e«  seq).  Tlie  great  lead- 
ing case  on  the  subject  in  England  is  McNaghten's  Case,  decided  in 
1843  before  the  English  House  of  Lords,  10  CI.  &  F.  200  ;  s.  c,  2  Law- 
son's  Cr.  Def.  150.  It  was  decided  by  the  judges  in  that  case  that,  in 
order  to  entitle  the  accused  to  acquittal,  it  must  be  clearly  proved  that, 
at  the  time  of  committing  the  offence,  he  was  laboiing  under  such  a 
defect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or,  if  he  did,  not  to  know  that  what  he 
was  doinw  was  wrong.  This  rule  is  commonly  supposed  to  have  here- 
tofore been  adopted  by  this  court,  and  has  been  followed  by  the  general 
current  of  American  adjudications.  Boswell  v.  The  State,  63  Ala.  307  ; 
s.  c.  35  Amer.  Rep.  20  ;  s.  c  2  Lawson's  Cr.  Def.  352  ;  McAllister  v- 
State,  17  Ala.  434  ;  Lawson  on  Insanity,  219-221,  231. 

In  view  of  these  conflicting  decisions,  and  of  the  new  light  thrown 
on  the  disease  of  insanity  by  the  discoveries  of  modern  psychological 
medicine,  the  courts  of  the  country  may  well  hesitate  before  blindly 
following  in  the  unsteady  footsteps  found  upon  the  old  sandstones  of 
our  common  law  jurisprudence  a  century  ago.  The  trial  court,  with 
prudent  propriety,  followed  the  previous  decisions  of  this  court,  the  cor- 
rectness of  which,  as  to  this  subject,  we  are  now  requested  to  review. 

We  do  not  hesitate  to  say  that  we  re-open  the  discussion  of  this 
subject  with  no  little  reluctance,  having  long  hesitated  to  disturb  our 
past  decisions  on  this  branch  of  the  law.  Nothing  could  induce  us  to 
do  so  except  an  imperious  sense  of  duty,  which  has  been  excited  by 
a  protracted  investigation  and  study,  impressing  our  minds  with  the 
conviction  that  the  law  of  insanity  as  declared  by  the  courts  on  many 
points,  and  especially  the  rule  of  criminal  accountability,  and  the  as- 
sumed tests  of  disease  to  that  extent  which  confers  legal  irresponsi- 
bility, have  not  kept  pace  with  the  progress  of  thought  and  discovery 
in  the  present  advanced  stages  of  medical  science.  Though  science 
has  led  the  way,  the  courts  of  England  have  declined  to  follow,  as 
shown  by  their  adherence  to  the  rulings  in  McNaghten's  Case,  em- 
phasized by  the  strange  declaration  made  by  the  Lord  Chancellor  of 
England,  in  the  House  of  Lords,  on  so  late  a  day  as  March  11,  1862, 
that  "the  introduction  of  medical  opinions  and  medical  theories  into 
this  subject  has  proceeded  upon  the  vicious  principle  of  considering 
insanity  as  a  disease  f  " 

It  is  not  surprising  that  this  state  of  affairs  has  elicited  from  a 
learned  law  writer,  who  treats  of  this  subject,  the  humiliating  declara- 
tion that,  under  the  influence  of  these  ancient  theories,  "the  memorials 
of  our  jurisprudence  are  written  all  over  with  cases  in  which  those 
who  are  now  understood  to  have  been  insane  have  been  executed  as 
criminals."  1  Bish.  Cr.  Law  (7th  ed.)  §  390.  There  is  good  reason, 
both  for  this  fact  and  for  the  existence  of  unsatisfactory  rules  on  this 
subject.     In  what  we  say  we  do  not  intend  to  give  countenance  to  ac- 


454  PARSONS  V.   STATE.  [CHAP.  VII. 

quittals  of  criminals,  frequent  examples  of  which  have  been  witnessed 
in  modern  times,  based  on  the  doctrine  of  moral  or  emotional  insanit}', 
unconnected  with  mental  disease,  which  is  not  yet  sufficiently  supported 
by  psychology,  or  recognized  by  law  as  an  excuse  for  crime.  Boswell's 
case,  supra;  1  Whar.  Cr.  Law  (9th  ed.),  §  43. 

In  ancient  times  lunatics  were  not  regarded  as  "unfortunate  suffer- 
ers from  disease,  but  rather  as  subjects  of  demoniacal  possession,  or  as 
self-made  victims  of  evil  passions."  They  were  not  cared  for  humanely 
in  asylums  and  hospitals,  but  were  incarcerated  in  jails,  punished  with 
chains  and  stripes,  and  often  sentenced  to  death  by  burning  or  the 
gibbet.  When  put  on  their  trial,  the  issue  before  the  court  then  was 
not  as  now.  If  acquitted,  they  could  only  be  turned  loose  on  the  com- 
munity to  repeat  their  crimes  without  molestation  or  restraint.  They 
could  not  be  committed  to  hospitals,  as  at  the  present  day,  to  be  kept 
in  custody,  cared  for  by  medical  attention,  and  often  cured.  It  was  not 
until  the  beginning  of  the  present  century  that  the  progress  of  Christian 
civilization  asserted  itself  by  the  exposure  of  the  then  existing  bar- 
barities, and  that  the  outcry  of  philanthropists  succeeded  in  eliciting 
an  investigation  of  the  British  Parliament  looking  to  their  suppression. 
Up  to  that  period  the  medical  treatment  of  the  insane  is  known  to  have 
been  conducted  upon  a  basis  of  ignorance,  inhumanity,  and  empiricism. 
Araer.  Cycloptedia,  vol.  ix.  (1874),  title.  Insanity.  Being  punished  for 
wickedness,  rather  than  treated  for  disease,  this  is  not  surprising.  The 
exposure  of  these  evils  not  onlj'  led  to  the  establishment  of  that  mos 
beneficent  of  modern  civilized  charities,  the  Hospital  and  Asylum  for 
the  Insane,  but  also  furnished  hitherto  unequalled  opportunities  to  the 
medical  profession  of  investigating  and  treating  insanit}*  on  the  path- 
ological basis  of  its  being  a  disease  of  the  mind.  Under  these  new 
and  more  favorable  conditions  the  medical  jurisprudence  of  insanity 
has  assumed  an  entirely  new  phase.  The  nature  and  exciting  causes  of 
the  disease  have  been  thoroughly  studied  and  more  fully  comprehended. 
The  result  is  that  the  "  right  and  wrong  test,"  as  it  is  sometimes  called, 
which,  it  must  be  remembered,  itself  originated  with  the  medical  pro- 
fession, in  the  mere  dawn  of  the  scientific  knowledge  of  insanity,  has 
been  condemned  by  the  great  current  of  modern  medical  authorities, 
who  believe  it  to  be  "  founded  on  an  ignorant  and  imperfect  view  of 
the  disease."     Encyc.  Brit.  vol.  xv.  (9th  ed.),  title,  Insanity. 

The  question  then  presented  seems  to  be  whether  an  old  rule  of 
legal  responsibility  shall  be  adhered  to  based  on  theories  of  physicians 
promulgated  a  hundred  years  ago,  which  refuse  to  recognize  any  evi- 
dence of  insanity  except  the  single  test  of  mental  capacity  to  dis- 
tinguish right  and  wrong,  or  whether  the  courts  will  recognize  as  a 
possible  fact,  if  capable  of  proof  by  clear  and  satisfactory  testimony, 
the  doctrine,  now  alleged  by  those  of  the  medical  profession  who  have 
made  insanity  a  special  subject  of  investigation,  that  the  old  test  is 
wrong,  and  that  there  is  no  single  test  by  which  the  existence  of  the 
disease,  to  that  degree  which  exempts  from  punishment,  can  in  every 


SECT.  I.]  PARSONS   V.    STATE.  455 

case  be  infallibly  detected.  The  inquiry  must  not  be  unduly  obstructed 
by  the  doctrine  of  stare  decisis,  for  the  life  of  the  common  law  system 
and  the  hope  of  its  i)ermanency  consist  largely  in  its  power  of  adap- 
tation to  new  scientific  discoveries,  and  the  requirements  of  an  ever 
advancing  civilization.  There  is  inherent  in  it  the  vital  principle  of 
juridical  evolution,  which  preserves  itself  by  a  constant  struggle  for 
approximation  to  the  highest  practical  wisdom.  It  is  not  like  the  laws 
of  the  Medes  and  Persians,  which  could  not  be  changed.  In  establish- 
ing any  new  rule,  we  should  strive,  however,  to  have  proper  regard  for 
two  opposite  aspects  of  the  subject,  lest,  in  the  words  of  Lord  Hale, 
"on  one  side  there  be  a  kind  of  inhumanity  towards  the  defects  of 
human  nature  ;  or,  on  the  other,  too  great  indulgence  to  great  crimes." 

It  is  everywhere  admitted,  and  as  to  this  there  can  l)e  no  doubt, 
that  an  idiot,  lunatic,  or  other  person  of  diseased  mind,  who  is  afflicted 
to  such  extent  as  not  to  know  whether  he  is  doing  right  or  wrong,  is 
not  punishable  for  any  act  which  he  may  do  while  in  that  state. 

Can  the  courts  justly  say,  however,  that  the  only  test  or  rule  of 
responsibiUty  in  criminal  cases  is  the  power  to  distinguish  right  from 
wrong,  whether  in  the  abstract,  or  as  applied  to  the  particular  case  ? 
Or  may  there  not  be  insane  persons  of  a  diseased  brain,  who,  while 
capable  of  perceiving  the  difference  between  right  and  wrong,  are,  as 
matter  of  fact,  so  far  under  the  duress  of  such  disease  as  to  destroy  the 
poioer  to  choose  between  right  and  wrong?  Will  the  courts  assume  as 
a  fact,  not  to  be  rebutted  by  any  amount  of  evidence,  or  any  new  dis- 
coveries of  medical  science,  that  there  is,  and  can  be,  no  such  state  of 
the  mind  as  that  described  by  a  writer  on  psychological  medicine,  as 
one  "  in  which  the  reason  has  lost  its  empire  over  the  passions,  and  the 
actions  by  which  they  are  manifested,  to  such  a  degree  that  the  indi- 
vidual can  neither  repress  the  former,  nor  abstain  from  the  latter "  ? 
Dean's  Med.  Jur.  497. 

Much  confusion  can  be  avoided  in  the  discussion  of  this  subject  by 
separating  the  duty  of  the  jury  from  that  of  the  court  in  the  trial  of  a 
case  of  this  character.  The  province  of  the  jury  is  to  determine  facts, 
that  of  the  court  to  state  the  law.  The  rule  in  McNaghten's  Case  arro- 
gates to  the  court,  in  legal  effect,  the  right  to  assert,  as  matter  of  law, 
the  following  propositions  :  — 

1.  That  there  is  but  a  single  test  of  the  existence  of  that  degree  of 
insanity,  such  as  confers  irresponsibility  for  crime. 

2.  That  there  does  not  exist  any  case  of  such  insanity  in  which  that 
single  test  —  the  capacity  to  distinguish  right  from  wrong  —  does  not 
appear. 

3.  That  all  other  evidences  of  alleged  insanity,  supposed  by  physicians 
and  experts  to  indicate  a  destruction  of  tlie  freedom  of  the  human  will 
and  the  irresistible  duress  of  one's  actions,  do  not  destroy  his  mental 
capacity  to  entertain  a  criminal  intent. 

The  whole  difficulty,  as  justly  said  by  the  Supreme  Judicial  Court  of 
New  Hampshire,  is  that  "courts  have  undertaken  to  declare  that  to 


456 


PARSONS  V.    STATE.  [CHAP.  VII. 


be  law  which  is  matter  of  fact."  "If"  observes  the  same  court,  "  the 
tests  of  insanity  are  matters  of  law,  the  practice  of  allowing  experts 
to  testify  what  they  are  should  be  discontinued ;  if  they  are  matters 
of  fact,  the  judge  should  no  longer  testify  without  being  sworn  as  a 
witness,  and  showing  himself  to  be  qualified  to  testify  as  an  expert." 
State  V.  Pike,  49  N.  H.  399. 

We  first  consider  what  is  the  proper  legal  rale  of  responsibility  %n 

criininal  cases. 

No  one  can  deny  that  there  must  be  two  constituent  elements  of  legal 
responsibility  in  the  commission  of  every  crime,  and  no  rule  can  be  just 
and  reasonable  which  fails  to  recognize  either  of  them  :  (1)  capacity 
of  intellectual  discrimination  ;  and  (2)  freedom  of  will.  Mr.  Wharton, 
after  recognizing  this  fundamental  and  obvious  principle,  observes: 
"  If  there  be  either  incapacity  to  distinguish  between  right  and  wrong 
as  to  the  particular  act,  or  delusion  as  to  the  act,  or  inability  to  refrain 
from  doing  the  act,  there  is  no  responsibility."  1  Whar.  Cr.  Law  (9th 
ed.),  §  33.  Says  Mr.  Bishop,  in  discussing  this  subject:  "There  can- 
not be,  and  there  is  not,  in  any  locality,  or  age,  a  law  punishing  men 
for  what  thoy  cannot  avoid."     1  Bish.  Cr.  Law  ^7th  ed.),  §  3836. 

If,  therefore,  it  be  true,  as  matter  of  fact,  that  the  disease  of  insanity 
can,  in  its  action  on  the  human  brain  through  a  shattered  nervous 
organization,  or  in  any  other  mode,  so  affect  the  mind  as  to  subvert 
the  freedom  of  the  will,  and  thereby  destroy  the  power  of  the  victim  to 
choose  between  the  right  and  wrong,  although  he  perceive  it,  —  by  which 
we  mean  the  power  of  volition  to  adhere  in  action  to  the  right  and  abstain 
from  the  wrong, — is  such  a  one  criminally  responsible  for  an  act  done 
under  the  influence  of  such  controlling  disease  ?  We  clearly  think  not ; 
and  such  we  believe  to  be  the  just,- reasonable,  and  humane  rule  towards 
wliich  all  the  modern  authorities  in  this  country,  legislation  in  England, 
and  the  laws  of  other  civilized  countries  of  the  world,  are  gradually,  but 
surely  tending,  as  we  shall  further  on  attempt  more  fully  to  show. 

We  next  consider  the  question  as  to  the  probable  existence  of  such  a 
disease.,  and  the  test  of  its  presence  in  a  given  case. 

It  will  not  do  for  the  courts  to  dogmatically  deny  the  possible  exist- 
ence of  such  a  disease,  or  its  pathological  and  psychical  effects,  because 
this  is  a  matter  of  evidence,  not  of  law,  or  judicial  cognizance.  Its 
existence,  and  effect  on  the  mind  and  conduct  of  the  patient,  is  a  ques- 
tion of  fact  to  be  proved,  just  as  much  as  the  possible  existence  of 
cholera  or  yellow  fever  formerly  was  before  these  diseases  became  the 
subjects  of  common  knowledge,  or  the  effects  of  delirium  from  fever,  or 
intoxication  from  opium  and  alcoholic  stimulants  would  be.  The  courts 
could,  with  just  as  much  propriety  j'ears  ago,  have  denied  the  existence 
of  the  Copernican  system  of  the  universe,  the  efficacy  of  steam  and 
electricity  as  a  motive  power,  or  the  possibility  of  communication  in  a 
few  moments  between  the  continents  of  Europe  and  America  b}'  the 
magnetic  telegraph,  or  that  of  the  instantaneous  transmission  of  the 
human  voice  from  one  distant  city  to  another  by  the  use  of  the  tele- 


SECT.  I.]  PARSONS   V.   STATE.  457 

phone.  These  are  scientific  facts,  first  discovered  by  experts  before 
becoming  matters  of  common  knowledge.  So,  in  like  manner,  must  be 
every  other  unknown  scientific  fact,  in  whatever  profession  or  depart- 
ment of  knowledge.  The  existence  of  such  a  cerebral  disease  as  that 
which  we  have  described  is  earnestly  alleged  b}'  the  superintendents  of 
insane  hospitals  and  other  experts  who  constantly  have  experimental 
dealings  with  the  insane,  and  they  are  permitted  every  day  to  so  testify 
before  juries.  The  truth  of  their  testimony  —  or  what  is  the  same  thing, 
the  existence  or  non-existence  of  such  a  disease  of  the  mind  —  in  each 
particular  case,  is  necessarily  a  matter  for  the  determination  of  tlie  jury 
fi"om  the  evrdence. 

So  it  is  equally  obvious  that  the  courts  cannot,  upon  any  sound  prin- 
ciple, undertake  to  say  what  are  the  invariable  or  infallible  tests  of  such 
disease.  The  attempt  has  been  repeatedly  made,  and  has  proved  a 
confessed  failure  in  practice.  "Such  a  test,"  says  Mr.  Bishop,  "has 
never  been  found,  not  because  those  who  have  searched  for  it  have  not 
been  able  and  diligent,  but  because  it  does  not  exist."  1  Bish.  Cr.  Law 
(7th  ed  ),  §  381.  In  this  conclusion.  Dr.  Ra}',  in  his  learned  work  on 
the  Medical  Jurisprudence  of  Insanit}-,  fully  concurs.  Ray's  Med.  Jur. 
Ins.  p.  39.  The  symptoms  and  causes  of  insanity  are  so  variable,  and 
its  patholog}'  so  complex,  that  no  two  cases  may  be  just  alike.  "The 
fact  of  its  existence,"  says  Dr.  Ra3',  "  is  never  established  b}'  any  single 
diagnostic  symptom,  but  by  the  whole  body  of  symptoms,  no  particular 
one  of  which  is  present  in  every  case."  Ray's  Med.  Jur.  of  Ins,  §  24. 
Its  exciting  causes  being  moral,  psychical,  and  phj'sical  are  the  especial 
subjects  of  specialists'  study.  What  effect  may  be  exerted  on  the  given 
patient  b}-  age,  sex,  occupation,  the  seasons,  personal  surroundings, 
hereditary  transmission,  and  other  causes  is  the  subject  of  evidence 
based  on  Investigation,  diagnosis,  observation,  and  experiment.  Pecu- 
liar opportunities,  never  before  enjoyed  in  the  history  of  our  race,  are 
offered  in  the  present  age  for  the  ascertainment  of  these  facts,  b}'  the 
establishment  of  asylums  for  the  custody  and  treatment  of  the  insane, 
which  Christian  benevolence  and  statesmanship  have  substituted  for 
jails  and  gibbets.  The  testimony  of  these  experts  —  differ  as  the}'  may 
in  man}'  doubtful  cases  —  would  seem  to  be  the  best  which  can  be 
obtained,  however  unsatisfactory  it  ma}'  be  in  some  respects. 

In  the  present  state  of  our  law,  under  the  rule  in  McNaghten's 
Case,  we  are  confronted  with  this  practical  difficulty,  which  itself  demon- 
strates the  defects  of  the  rule.  The  courts  in  effect  charge  the  juries, 
as  matter  of  law,  that  no  such  mental  disease  exists  as  that  often 
testified  to  by  medical  writers,  superintendents  of  insane  hospitals,  and 
other  experts,  —  that  there  can  be  as  matter  of  scientific  fact  no  cere- 
bral defect,  congenital  or  acquired,  which  destroys  the  patient's  power 
of  self-control,  his  liberty  of  will  and  action,  provided  only  he  retains 
a  mental  consciousness  of  right  and  wrong.  The  experts  are  immedi- 
ately put  under  oath,  and  tell  the  juries  just  the  contrary,  as  matter  of 
evidence  ;  asserting  that  no  one  of  ordinary  intelligence  can  spend  an 


458 


PAKSONS   V.    STATE.  [CHAP.  VII. 


hour  in  the  wards  of  an  insane  asjlum  without  discovering  such  cases, 
and  in  fact  that  "  the  whole  management  of  such  asylums  presupposes 
a  knowledge  of  right  and  wrong  on  the  part  of  their  inmates."  Guy  & 
F  on  Forensic  Med.  220.  The  result  in  practice,  we  repeat,  is  that 
the  courts  charge  one  way,  and  the  jury,  following  an  alleged  higher 
law  of  humanity,  find  another  in  harmony  with  the  evidence. 

In  Bucknill  on  Criminal  Lunacy,  p.  59,  it  is  asserted  as  "  the  result 
of  observation  and  experience,  that  in  all  lunatics  and  in  the  most 
degraded  idiots,  whenever  manifestations  of  any  mental  action  can  be 
educed,  the  feeUng  of  right  and  wrong  may  be  proved  to  exist." 

"With  regard  to  this  test,"  says  Dr.  Russell  Reynolds,  in  his  work 
on  "The  Scientific  Value  of  the  Legal  Tests  of  Insanity,"  p.  34 
(London,  1872),  "I  may  say,  and  most  emphatically,  that  it  is  utterly 
untrustworthy,  because  untrue  to  the  obvious  facts  of  Nature." 

In  the  learned  treatise  of  Drs.  Bucknill  and  Tuke  on  "  Psychological 
Medicine,"  p.  269  (4th  ed.  London,  1879),  the  legal  tests  of  respon- 
sibility are  discussed,  and  the  adherence  of  the  courts  to  the  right  and 
wrong  test  is  deplored  as  unfortunate,  the  true  principle  being  stated  to 
be  "whether,  in  consequence  of  congenital  defect  or  acquired  disease, 
thepotoer  of  self-control  is  absent  altogether,  or  is  so  far  wanting  as  to 
render  the  individual  irresponsible."  It  is  observed  by  the  authors : 
"  As  has  again  and  again  been  shown,  the  unconsciousness  of  right 
and  wrong  is  one  thing,  and  the  powerlessness  through  cerebral  defect 
or  disease  to  do  right  is  another.  To  confound  them  in  an  asylum 
would  have  the  effect  of  transferring  a  considerable  number  of  the 
inmates  thence  to  the  treadmill  or  the  gallows." 

Dr.  Peter  Bryce,  Superintendent  of  the  Alabama  Insane  Hospital  for 
more  than  a  quarter-century  past,  alluding  to  the  mor^l  and  disciplinary 
treatment  to  which  the  insane  inmates  are  subjected,  observes :  '•  They 
are  dealt  with  in  this  institution,  as  far  as  it  is  practicable  to  do  so,  as 
rational  beings ;  and  it  seldom  happens  that  we  meet  with  an  insane 
person  who  cannot  be  made  to  discern,  to  some  feeble  extent,  his  duties 
to  himself  and  others,  and  his  true  relations  to  society."  Sixteenth 
Annual  Rep.  Ala.  Insane  Hosp.  (1876),  p.  22;  Biennial  Rep.  (1886), 
pp.  12-18. 

Other  distinguished  writers  on  the  medical  jurisprudence  of  insanity 
have  expressed  like  views,  with  comparative  unanimity.  And  nowhere 
do  we  find  the  rule  more  emphatically  condemned  than  by  those  who 
have  the  practical  care  and  treatment  of  the  insane  in  the  various 
lunatic  asylums  of  every  civilized  countr}'.  A  notable  instance  is  found 
in  the  following  resolution  unanimously  passed  at  the  annual  meeting 
of  the  British  Association  of  medical  officers  of  Asylums  and  Hospitals 
for  the  insane,  held  in  London,  July  14,  1864,  where  there  were  present 
fifty- four  medical  officers  :  — 

"  Resolved,  That  so  much  of  the  legal  test  of  the  mental  condition  of 
an  alleged  criminal  lunatic  as  renders  him  a  responsible  agent,  because 
he  knows  the  difference  between  right  and  wrong,  is  inconsistent  with 


SECT.  I.]  PARSONS   V.    STATE.  459 

the  fact,  well  known  to  every  member  of  this  meeting,  that  the  power 
of  distinguishing  between  right  and  wrong  exists  very  frequently  in 
those  who  are  undoubtedly  insane,  and  is  often  associated  with  dan- 
gerous and  uncontrollable  delusions."  Judicial  Aspects  of  Insanity 
(Ordronaux,  1877),  423-424. 

These  testimonials  as  to  a  scientific  fact  are  recognized  by  intelligent 
men  in  the  affairs  of  every-day  business,  and  are  constantly  acted  on 
by  juries.  They  cannot  be  silently  ignored  by  judges.  Whether  estab- 
lished or  not,  there  is  certainly  respectable  evidence  tending  to  establish 
it,  and.this  is  all  the  courts  can  require. 

Nor  are  the  modern  law  writers  silent  in  their  disapproval  of  the 
alleged  test  under  discussion.  It  meets  with  the  criticism  or  condem- 
nation of  the  most  respectable  and  advanced  in  thought  among  them, 
the  tendency  being  to  incorporate  in  the  legal  rule  of  responsibility 
"not  only  the  knowledge  of  good  and  evil,  but  the  poicer  to  choose  the 
one,  and  refrain  from  the  otlier."  Browne's  Med.  Jur.  of  Insanity, 
§§  13  et  seq.,  §  18  ;  Ray's  Med.  Jur.  §§  16-19  ;  Whart.  &  Stilles'  Med. 
Jur.  §  59;  1  Whart.  Cr.  Law  (9th  ed.),  §§  33,  43,  45;  1  Bish.  Cr. 
Law  (7th  ed.),  §  386  et  seq. ;  Judicial  Aspects  of  Insanity  (Ordronaux), 
419  ;  1  Green.  Ev.  §  372  ;  1  Steph.  Hist.  Cr.  Law,  §  168 ;  Amer.  Law 
Rev.  vol.  iv.  (1869-70),  236  et  seq. 

The  following  practicable  suggestion  is  made  in  the  able  treatise 
of  Balfour  Browne  above  alluded  to;  ''In  a  case  of  alleged  insanit}', 
then,"  he  says,  "  if  the  individual  suffering  from  enfeeblement  of  intel- 
lect, delusion,  or  any  other  form  of  mental  aberration,  was  looked  upon 
as,  to  the  extent  of  this  delusion,  under  the  influence  of  duress  (the 
dire  duress  of  disease),  and  in  so  far  incapacitated  to  choose  the  good 
and  eschew  the  evil,  in  so  far,  it  seems  to  us,"  he  continues,  "  would 
the  requirements  of  the  law  be  fulfilled  ;  and  in  that  way  it  would  afford 
an  opening,  by  the  evidence  of  experts,  for  the  proof  of  the  amount  of 
self-duress  in  each  individual  case  and  thus  alone  can  the  criterio7i  of 
law  and  the  criterion  of  the  inductive  science  of  medical  psychology 
be  made  to  coincide.''     Med.  Jur.  of  Ins.  (Browne),  §  18. 

This,  in  our  judgment,  is  the  practical  solution  of  the  difficulty  before 
us,  as  it  preserves  to  the  courts  and  the  juries,  respectively,  a  harmo- 
nious field  for  the  full  assertion  of  their  time-honored  functions. 

So  great,  it  may  be  added,  are  the  embarrassments  growing  out  of 
the  old  rule,  as  expounded  by  the  judges  in  the  House  of  English  Lords, 
that,  in  March,  1874,  a  bill  was  brought  before  the  House  of  Commons, 
supposed  to  have  been  drafted  by  the  learned  counsel  for  the  Queen, 
Mr.  Fitzjames  Stephen,  which  introduced  into  the  old  rule  the  new 
element  of  an  absence  of  the  power  of  self-control,  produced  by  diseases 
affecting  the  mind  ;  and  this  proposed  alteration  of  the  law  was  cordially 
recommended  by  the  late  Chief  Justice  Cockburn,  his  only  objection 
being  that  the  principle  was  proposed  to  be  limited  to  the  case  of  homi- 
cide. 1  Whart.  Cr.  Law  (9th  ed.),  §  45,  p.  ^Q^  note  1 ;  Browne's  Med. 
Jur.  of  lusau.  §  10,  note  1. 


460 


PAKSONS   V.   STATE.  [CHAP.  VII. 


There  are  many  well  considered  cases  which  support  these  views.» 

The  law  of  Scotland  is  in  accord  with  the  English  law  on  this  subject, 
as  might  well  be  expected.  The  Criminal  Code  of  Germany,  however, 
contains  the  following  provision,  which  is  said  to  have  been  the  formu- 
lated result  of  a  very  able  discussion  both  Ijy  the  physicians  and  lawyers 
of  that  country:  ^' There  is  no  criminal  act  when  the  actor  at  the 
time  of  the  offence  is  in  a  state  of  unconsciousness,  or  morbid  disturb- 
ance of  the  mind,  through  which  the  free  determination  of  his  will  is 
excluded:'  Encyc.  Brit.  (9th  ed.),  vol.  ix.  p.  112  ;  citing  Grim.  Code  of 
Germany  (§  51,  R.  G.  B.). 

The  Code  of  France  provides :  "  There  can  be  no  crime  or  offence  if 
the  accused  was  in  a  state  of  madness  at  the  time  of  the  act."  For 
some  time  the  French  tribunals  were  inclined  to  interpret  this  law  in 
such  a  manner  as  to  follow  in  substance  the  law  of  England.  But  that 
construction  has  been  abandoned,  and  the  modern  view  of  the  medical 
profession  is  now  adopted  in  that  country. 

It  is  no  satisfactory  objectioji  to  say  that  the  rule  above  announced 
by  us  is  of  difficult  application.  The  rule  in  McNaghten's  Case,  supra, 
is  equally  obnoxious  to  a  like  criticism.  The  difficulty  does  not  lie  in 
the  rule,  but  is  inherent  in  the  subject  of  insanity  itself.  The  practical 
trouble  is  for  the  courts  to  determine  in  what  particular  cases  the  party 
on  trial  is  to  be  transferred  from  the  category  of  sane  to  that  of  insane 
criminals, — where,  in  other  words,  the  border  line  of  punishability  is 
adjudged  to  be  passed.  But,  as  has  been  said  in  reference  to  an  every- 
day fact  of  Nature,  no  one  can  say  where  twilight  ends  or  begins,  but 
there  is  ample  distinction  nevertheless  between  da>/  and  night.  We 
think  we  can  safely  rely  in  this  matter  upon  the  intelligence  of  our 
juries,  guided  by  the  testimony  of  men  who  have  practically  made  a 
study  of  the  disease  of  insanity,  and  enlightened  by  a  conscientious 
desire,  on  the  one  hand,  to  enforce  the  criminal  laws  of  the  land,  and 
on  the  other,  not  to  deal  harshly  with  any  unfortunate  victim  of  a 
diseased  mind,  acting  without  the  light  of  reason,  or  the  power  of 
volition. 

It  is  almost  needless  to  add  that  where  one  does  not  act  under  the 
duress  of  a  diseased  mind,  or  insane  delusion,  but  from  motives  of 
anger,  revenge,  or  other  passion,  he  cannot  claim  to  be  shielded  from 
punishment  for  crime  on  the  ground  of  insanity.  Insanity  proper  is 
more  or  less  a  mental  derangement,  coexisting  often,  it  is  true,  with  a 
disturbance  of  the  emotions,  affections,  and  other  moral  powers.  A 
mere  moral,  or  emotional  insanity,  so-called,  unconnected  with  disease 
of  the  mind,  or  irresistible  impulse  resulting  from  mere  moral  obliquity, 
or  wicked  propensities  and  habits,  is  not  recognized  as  a  defence  to 
crime  in  our  courts.  1  Whar.  Cr.  Law  (9th  ed.),  §  46  ;  Boswell  v.  State, 
63  Ala.  307,  35  Amer.  Rep.  20  ;  Ford  i'.  State,  71  Ala.  385. 

The  charges  refused  by  the  court  raise  the  question  as  to  how  far 

^  The  consideration  of  certain  authorities  on  the  subject  is  omitted. 


SECT.  I.]  PAESONS   V.    STATE.  461 

one  acting  under  the  influence  of  an  insane  delusion  is  to  be  exempted 
from  criminal  accountability.  The  evidence  tended  to  show  that  one  of 
the  defendants,  Mrs.  Nancy  J.  Parsons,  acted  under  the  influence  of 
an  insane  delusion  that  the  deceased,  whom  she  assisted  in  killing, 
possessed  supernatural  power  to  afflict  her  with  disease,  and  to  take 
her  life  by  some  "  supei  natural  trick;"  that  by  means  of  such  power 
the  deceased  had  caused  defendant  to  be  in  bad  health  for  a  long  • 
time,  and  that  she  acted  under  the  belief  that  she  was  in  great  danger 
of  the  loss  of  her  life  from  the  conduct  of  deceased  operating  by  means 
of  such  supernatural  power. 

The  rule  in  McNaghten's  Case,  as  decided  by  the  English  judges,  and 
supposed  to  have  been  adopted  by  the  court,  is  that  the  defence  of 
insane  delusion  can  be  allowed  to  prevail  in  a  criminal  case  only  when 
the  imaginary  state  of  facts  would,  if  real,  justify  or  excuse  the  act; 
or,  in  the  language  of  the  English  judges  themselves,  the  defendant 
"  must  be  considered  in  the  same  situation  as  to  responsi-bility,  as  if 
the  facts  with  respect  to  which  the  delusion  exists  were  real."    Boswell's 
case,  63  Ala.  307.     It  is  apparent,  from  what  we  have  said,  that  this 
rule  cannot  be  correct  as  applied  to  all  cases  of  this  nature,  even  limiting 
it,  as  done  by  the  English  judges,  to  cases  where  one  "labors   under 
partial  delusion,  and  is  not  in  other  respects  insane."     McNaghten's 
Case,  10  CI.  &  F.  200  ;  s.  c.  2  Lawson's  Cr.  Def.  150.     It  holds  a  par- 
tially insane  person  as  responsible  as  if  he  were  entirely  sane,  and  it 
ignores  the  possibility  of  crime  being  committed  under  the  duress  of  an 
insane  delusioji,  operating  upon  a  human  mind,  the  integrity  of  which 
is  destroyed  or  impaired  by  disease,  except,  perhaps,  in  cases  where 
the  imaginary  state  of  facts,  if  real,  would  excuse  or  justify  the  act 
done  under  their  influence.     Fields'  Med.  Leg.  Guide,  101-104  ;  Guy 
&  F.  on  Forensic  Med.  220.     If  the  rule  declared  by  the  English  judges 
be  correct,  it  necessarily  follows  that  the  only  possible  instance  of 
excusable  homicide  in  cases  of  delusional  insanity  would  be  where  the 
delusion,  if  real,  would  have  been  such  as  to  create,  in  the  mind  of  a 
reasonable  man,  a  just  apprehension  of  imminent  peril  to  life  or  limb. 
The  personal  fear,  or  timid  cowardice  of  the  insane  man,  although 
created  by  disease  acting  through  a  prostrated  nervous  organization, 
would  not  excuse  undue  precipitation  of  action  on  his  part.     Nothing 
would  justify  assailing  his  supposed  adversary  except  an  overt  act,  or 
demonstration  on  the  part  of  the  latter,  such  as,  if  the  imaginary  facts 
were  real,  would  under  like  circumstances  have  justified  a  man  perfectly 
sane  in  shooting  or  killing.     If  he  dare  fail  to  reason  on  the  supposed^ 
facts  embodied  in  the  delusion,  as  perfectly  as  a  sane  man  could  do  on  a 
like  state  of  realities,  he  receives  no  mercy  at  the  hands  of  the  law.     It 
exacts  of  him  the  last  pound  of  flesh.     It  would  follow  also,  under  this 
rule,  that  the  partially  insane  man,  afflicted  with  delusions,  would  no 
rnore  be  excusable  than  a  sane  man  would  be,  if,  perchance,  It  was  by 
his  fault  the  difficulty  was  provoked,  whether  by  word  or  deed  ;  or,  if,, 
in  fine,  he  may  have  been  so  negligent  as  not  to  have  declined  combat, 


462 


PARSONS   V.   STATE.  [CHAP.  VII. 


when  he  could  do  so  safely  without  increasing  his  peril  of  life  or  limb. 
If  this  has  been  the  law  heretofore,  it  is  time  it  should  be  so  no  longer. 
It  is  not  only  opposed  to  the  known  facts  of  modern  medical  science, 
but  it  is  a  hard  and  unjust  rule  to  be  applied  to  the  unfortunate  and 
providential  victims  of  disease.  It  seems  to  be  little  less  than  inhu- 
mane, and  its  strict  enforcement  would  probably  transfer  a  large  per- 
ceutao-e  of  the  inmates  of  our  Insane  Hospital  from  that  institution  to 
hard  Tabor  in  the  mines  or  the  penitentiary.  Its  fallacy  consists  in  the 
assumption  that  no  other  phase  of  delusion  proceeding  from  a  diseased 
brain  can  so  destroy  the  volition  of  an  insane  person  as  to  render  him 
powerless  to  do  what  he  knows  to  be  right,  or  to  avoid  doing  what 
he  may  know  to  be  wrong.  This  inquiry,  as  we  have  said,  and  here 
repeat,  is  a  question  of  fact  for  the  determination  of  the  jury  in  each 
particular  case.  It  is  not  a  matter  of  law  to  be  decided  by  the  courts. 
We  think  it  sufficient  if  the  insane  delusion  —  by  which  we  mean  the 
delusion  proceeding  from  a,  diseased  mind — sincerely  exists  at  the  time 
of  committing  the  alleged  crime,  and  the  defendant  believing  it  to  be 
real,  is  so  influenced  by  it  as  either  to  render  him  incapable  of  perceiv- 
ing the  true  nature  and  quality  of  the  act  done,  by  reason  of  the  depra- 
vation of  the  reasoning  faculty,  or  so  subverts  his  will  as  to  destroy  his 
free  ao-ency  by  rendering  him  powerless  to  resist  by  reason  of  the  duress 
of  the  disease.  In  such  a  case,  in  other  words,  there  must  exist  either 
one  of  two  conditions :  (1)  such  mental  defect  as  to  render  the  defend- 
ant unable  to  distinguish  between  right  and  wrong  in  relation  to  the 
particular  act;  (2)  the  overmastering  of  defendant's  will  jn  consequence 
of  the  insane  delusion  under  the  influence  of  which  he  acts,  produced 
bv  disease  of  the  mind  or  brain.  Rex  v.  Hadfield,  37  IIow.  St.  Tr. 
1282  ;  s.  c,  2  Lawson's  Cr.  Def.  201  ;  Roberts  u.  State,  3  Ga.  310  ;  Com. 
V.  Rogers,  7  Met.  500;  State  v.  Windsor,  5  Harr.  512;  Buswell  on 
Insan.  §§  434,  440  ;  Amer.  Law  Review,  vol.  iv.  (1869-70)  pp.  236-252. 
In  conclusion  of  this  branch  of  the  subject,  that  we  may  not  be  mis- 
understood, we  think  it  follows  very  clearly  from  what  we  have  said 
that  the  inquiries  to  be  submitted  to  the  jury,  then,  in  every  criminal 
trial  where  the  defence  of  insanity  is  interposed,  are  these  :  — 

1.  Was  the  defendant  at  the  time  of  the  commission  of  the  olleged 
crime,  as  matter  of  fact,  afflicted  with  a  disease  of  the  mind,  so  as  to  be 
either  idiotic,  or  otherwise  insane? 

2.  If  such  be  the  case,  did  he  know  right  from  wrong  as  applied  to 
the  particular  act  in  question?  If  he  did  not  have  such  knowledge,  he 
is  not  legally  responsible. 

3.  If  he  did  have  such  knowledge,  he  ma}-  nevertheless  not  be  legally 
responsible  if  the  two  following  conditions  concur: 

(1)  If,  by  reason  of  the  duress  of  such  mental  disease,  he  had  so  far 
lost  the  poioer  to  choose  between  the  right  and  wrong,  and  to  avoid  doing 
the  act  in  question,  as  that  his  free  agency  was  at  the  time  destroyed. 

(2)  And  if,  at  the  same  time,  the  alleged  crime  was  so  connected 
with  such  mental  disease,  in  the  relation  of  cause  and  efllect,  as  to  have 
been  the  product  of  it  solely. 


SECT.  lJ  parsons  V.   STATE.  463 

The  rule  announced  in  Boswell's  Case,  63  Ala.  308,  stqyra,  as  stated 
in  the  fourth  head  note,  is  in  conflict  with  the  foregoing  conclusions, 
and  to  that  extent  is  declared  incorrect,  and  is  not  supported  by  the 
opinion  in  that  case,  otherwise  than  b}-  dictum. 

We  adhere,  however,  to  the  rule  declared, by  this  court  in  Boswell's 
case,  supra,  and  followed  in  Ford's  Case,  71  Ala.  385,  holding  that 
when  insanity  is  set  up  as  a  defence  in  a  criminal  case,  it  must  be 
established  to  the  satisfaction  of  the  jury  by  a  preponderance  of  the 
evidence  ;  and  a  reasonable  doubt  of  the  defendant's  sanity,  raised  by 
all  the  evidence,  does  not  authorize  an  acquittal. 

The  judgment  is  reversed,  and  the  cause  remanded.  In  the  mean- 
while the  prisoners  will  be  held  in  custody  until  discharged  by  due 
process  of  law. 

Stone,  C.  J.,  dissents  in  part. 

Note  on  the  Test  of  Insanity.  The  test  of  insanity  laid  down  by  the  judges 
in  McNaghten's  Case,  siqira  (usually  known  as  "the  knowledge  of  right  and  wrong 
test"),  prevails  in  many  jurisdictions,  and  "irresistible  impulse"  is  held  not  to  be 
such  insanity  as  will  excuse  from  crime.  U.  S.  v.  Slmlts,  G  McLean,  121  ;  U.  S.  v. 
Young,  25  F.  R.  710  ;  People  v.  Hoin,  62  Cal.  120;  U.  S.  v.  Guiteau,  10  F.  K.  161 
(D.  C.)  ;  Briiikley  v.  State,  f^?>  Ga.  296  ;  State  v.  Mowry,  37  Kas.  369,  15  Pac.  282; 
State  V.  Scott,  41  Minn.  365  (but  see  State  v.  Shippey,  10  Minn.  223  ;  State  v.  Erb, 
74  Mo.  199  ;  Flanagan  v.  People,  52  N.  Y.  467  (supra)  ;  State  v.  Brandon,  8  Jones,  463  ; 
State  V.  Murray,  11  Or.  413,  5  Pac.  55  ;  Leache  v.  State,  22  Tex.  App.  279,  3  S.  W.  539 
(semble).     See  Andersen  v.  State,  43  Conn.  514. 

Other  jurisdictions,  starting  with  the  same  "right  and  wrong"  test,  hold  the  view 
that  the  test  is  satisfied  and  the  defendant  excused  if  he  acted  because  of  an  irresistible 
impulse,  and  not  as  a  free  agent.  Com.  v.  Rogers,  7  Met.  500  [supra)  ;  Bovard  v.  State, 
30  Miss.  600  ;  Brown  v.  Com.,  78  Pa.  122. 

Still  other  jurisdictions  discard  altogether  the  "right  and  wrong"  test,  and  hold 
that  irresistible  impulse  is  an  excuse,  though  the  knowledge  of  right  and  wrong  existed. 
State  V.  Wind.sor,  5  Harr.  512  ;  Dacey  v.  People,  116  111.  555  ;  Plake  v.  State,  121  Ind. 
433  ;  State  r.  Felter,  25  Iowa,  67  ;  Smith  v.  Com.,  1  Duv.  224  ;  Blackburn  v.  State,  23 
Ohio  St.  146 ;  Dejarnette  v.  Com.,  75  Va.  867. 

The  doctrine  of  the  Alabama  and  New  Hampshire  courts,  that  there  is  no  legal 
test  of  insanity,  is  stated  in  the  case  of  Parsons  v.  State,  81  Ala.  577  (supra),  follow- 
ing the  opinion  of  Doe,  J.,  in  State  v.  Pike,  49  N.  H.  399.  See  also  People  v.  Finley, 
38  Mich.  482. 


464  REGINA  V.   DOODY.  [CHAP.  VII. 


SECTION  11. 

Intoxication. 

PEARSON'S   CASE. 
Carlisle  Assizes.     1835. 

[Reported  2  Lewin,  144.] 

The  prisoner  was  in«Ucted  for  the  murder  of  his  wife. 

It  was  proved  that  in  a  fit  of  drunkenness  he  had  beaten  her  in  a  cruel 
manner  with  a  rake-shank,  and  that  she  died  of  the  wounds  and  bruises 
which  she  received.     His  only  defence  was  that  he  was  drunk. 

Park,  J.     Voluntary  drunkenness  is  no  excuse  for  crime. 

If  a  party  be  made  drunk  by  stratagem  or  the  fraud  of  another  he 
is  not  responsible. 

So  drunkenness  may  be  taken  into  consideration  to  explain  the 
probability  of  a  party's  intention  in  the  case  of  violence  committed 
on  sudden  provocation. 


A 


REGINA  v.   DOODY. 

Stafford  Assizes.     1854. 

{Reported  6  Cox  C.  C.  463.] 

The  prisoner  was  indicted  for  unlawfully  attempting  to  commit 
suicide  at  Wolverhampton,  on  the  5th  of  March,  1854. 

It  appeared  that  the  prisoner  was  at  the  George  Inn,  Wolverhamp- 
ton, on  the  night  of  the  5th  March,  and  about  ten  o'clock  went  to  the 
water-closet.  He  was  soon  afterwards  found  there,  suspended  to  a 
beam  by  a  scarf  tied  round  his  neck.  He  was  cut  down,  and  anima- 
tion restored.  On  being  taken  into  custody  and  charged  with  the 
offence,  he  stated  that  he  had  led  a  bad  course  of  life,  and  had  no 
money  or  friends.  He  now  said  in  his  defence  that  he  had  been 
drinking  for  nine  days  before,  and  did  not  know  what  he  was  doing. 
There  was  some  evidence  to  show  that,  although  he  was  partially 
intoxicated,  he  was  quite  capable  of  taking  care  of  himself. 

Wightman,  J.,  told  the  jury  that  the  offence  charged  constituted, 
beyond  all  doubt,  a  misdemeanor  at  common  law.  The  question  for 
them  to  consider  was  wh^t.hpr  tbp  pi-ignno.-  v.^/|  g  i^jnri  ^opaKip  nf  onx\.  ^ 
templating  the  act  ehavgpri,  nnri  whpthpv  Ha  rlirl,  jp  fflct.  intend  to  take 
away  his  life.  The  prisoner  alleged  in  his  defence  that  he  was  drunk 
at  the  time,  which  must  be  taken  to  mean  that  he  had  no  deliberate 


SECT.  II.]  EEGINA  V.  DAVIS.  465 

intention  to  destroy  his  life ;  for  the  mere  fact  of  drunkenness  in  this, 
as  in  other  cases,  is  not  of  itself  an  excuse  for  the  crime,  but  it  is  a 
material  fact  in  order  to  arrive  at  the  conclusion  whether  or  no  the 
prisoner  really  intended  to  destroy  his  life. 

Verdict,  Guilty.     Sentence,  three  months'  imprisonment. 


REGINA   V.    GAMLEN. 
Bristol  Assizes.     1858. 

[Reported  1  Foster  and  F'lnlason,  90.] 

Assault.  The  charge  arose  out  of  an  affray  at  a  fair,  and  there 
seemed  some  ground  for  supposing  that  the  prisoner  acted  under 
apprehension  of  an  assault  upon  himself.     All  concerned  were  drunk. 

Chowder,  J.  Drunkenness  is  no  excuse  for  crime  ;  but  in  consid- 
ering whether  the  prisoner  apprehended  an  assault  on  himself,  you 
may  take  into  account  the  state  in  which  he  was.         Not  guilty.^ 


REGINA   V.   DAVIS. 
Newcastle  Assizes.     1881. 

[Reported  14  Cox  C.  C.  563.] 

"William  Davis,  thirty-eight,  laborer,  was  charged  with  feloniously 
wounding  his  sister-in-law,  Jane  Davis,  at  Newcastle,  on  the  14th  day 
of  January,  with  intent  to  murder  her. 

On  the  14th  day  of  January,  1881,  the  prisoner  (who  had  been  pre- 
viously drinking  heavily,  but  was  then  sober)  made  an  attack  upon 
his  sister-in-law,  Mrs.  Davis,  threw  her  down,  and  attempted  to  cut 
her  throat  with  a  knife.  Ordinarily  he  was  a  very  mild,  quiet,  peace- 
able, well-behaved  man,  and  on  friendly  terms  with  her.  At  the  police 
station  he  said  :  "  The  man  in  the  moon  told  me  to  do  it.  I  will  have 
to  commit  murder,  as  I  must  be  hanged."  He  was  examined  by  two 
medical  men,  who  found  him  suffering  from  delirium  treinens^  result- 
ing from  over-indulgence  in  drink.  According  to  their  evidence  he 
would  know  what  he  was  doing,  but  his  actions  would  not  be  under 
his  control.  In  their  judgment  neither  fear  of  punishment  nor  legal 
nor  moral  considerations  would  have  deterred  him  ;  nothing  short  of 
actual  physical  restraint  would  have  prevented  him  acting  as  he  did. 
He  was  disordered  in  his  senses,  and  would  not  be  able  to  distinguish 

1  Ace.  Marshall's  Case,  1  Lewin  C.  C.  76.  But  see  Com.  v.  Hawkins,  3  Gray, 
463.  —  Ea 

30 


466  EEGINA   V.   DAVIS.  [CHAP.  VII. 

between  moral  right  and  wrong  at  the  time  he  committed  the  act. 
Under  proper  care  and  treatment  he  recovered  in  a  week,  and  was 
then  perfectly  sensible. 

For  the  defence  it  was  submitted  that  he  was  of  unsound  mind  at 
the  time  of  the  commission  of  the  act,  and  was  not  responsible  for  his 
actions. 

Stephex,  J.,  to  the  jury.  The  prisoner  at  the  bar  is  charged  with 
haviuo"  feloniously  wounded  his  sister-in-law,  Jane  Davis,  on  the  14th 
day  of  January  last,  with  intent  to  murder  her.  You  will  have  to 
consider  whether  he  was  in  such  a  state  of  mind  as  to  be  thoroughly 
responsible  for  his  actions  ;  and  with  regard  to  that  I  must  explain  to 
you  what  is  the  kind  or  degree  of  insanity  which  relieves  a  man  from 
responsibility.  Nobody  must  suppose  —  and  I  hope  no  one  will  be  led 
for  one  moment  to  suppose  —  that  drunkenness  is  any  kind  of  excuse 
for  crime.  If  this  man  had  been  raging  drunk  and  had  stabbed  his 
sister-in-law  and  killed  her,  he  would  have  stood  at  the  bar  guilty  of 
murder  beyond  all  doubt  or  question.  But  drunkenness  is  one,  things 
a.niLJfchej:lisaaseS-.tQ_which  drunkenness  leads  arfi.ilifEeiiejiiJthm^ ;  and 
if  a  man  by  drunkenness  brings  on  a  state  of  disease  which  causes 
such  a  degree  of  madness,  even  for  a  time,  which  would  have  relieved 
him  from  responsibility  if  it  had  been  caused  in  any  other  way,  then 
he  would  not  be  criminally  responsible.  In  my  opinion,  in  such  a  case 
the  man  is  a  madman,  and  is  to  be  treated  as  such,  altliough  his  mad- 
ness is  only  temporary.  If  you  think  he  was  so  insane  that  if  his 
insanity  had  been  produced  by  other  causes  he  would  not  be  respon- 
sil)le  for  his  actions,  then  the  mere  fact  that  it  was  caused  by  drunk- 
enness will  not  prevent  it  having  the  effect  which  otherwise  it  would 
have  had,  of  excusing  him  from  punishment.  Drunkenness  is  no  ex- 
cuse, but  delirium  tremens  caused  by  drunkenness  may  be  an  excuse 
if  you  think  it  produces  such  a  state  of  mind  as  would  otherwise 
relieve  him  from  responsibility.  A  person  may  be  both  insane  and 
responsible  for  his  actions,  and  the  great  test  laid  down  in  McNagh- 
ten's  Case  (10  CI.  &  Fin.  200 ;  1  C.  &  K.  130  n.)  was  whether  he  did 
or  did  not  know  at  the  time  that  the  act  he  was  committing  was  wrong. 
If  he  did  —  even  though  he  were  mad  —  he  must  be  responsible  ;  but  if 
liis  madness  prevented  that,  then  he  was  to  be  excused.  As  I  under- 
stand the  law,  any  disease  which  so  disturbs  the  mind  that  you  cannot, 
tliink  calmly  and  rationally  of  all  the  different  reasons  to  which  we 
refer  in  considering  the  rightness  or  wrongness  of  an  action, — any\ 
disease  which  so  disturbs  the  mind  that  you  cannot  perform  that  duty 
with  some  moderate  degree  of  calmness  and  reason,  may  be  fairly  said 
to  prevent  a  man  from  knowing  that  what  he  did  was  wrong.     Dell-  y 

rium   tremens  is  not  the  primary  but  the  secondary  consequence  of 
drinking,  and  both  the  doctors  agree  that  the  prisoner  was  unable  to' 
control  his  conduct,  and  that  nothing  short  of  actual  physical  restraint;- 
would  have  deterred  him   from  the  commission  of  the  act.     If  you 
think  there  was  a  distinct  disease  caused  by  drinking,  but  different 


:/ 


SECT.  II.]  PEOPLE   V.    ROGERS.  467 

from  drunkenness,  and  that  by  reason  thereof  he  did  not  know  that  the 
act  was  wrong,  you  will  find  a  verdict  of  not  guilty  on  the  ground  of 
insanity  ;  but  if  you  are  not  satisfied  with  that,  you  must  find  him 
guilty  either  of  stabbing  with  intent  to  murder  or  to  do  grievous  bodily 
harm. 

The  jury  returned  a  verdict  of  not  guilty  on  the  ground  of  insanity. 

The  prisoner  was  ordered  to  be  detained  during  Her  Majesty's 
pleasure.^ 


PEOPLE  V.  ROGERS. 
Court  of  Appeals  of  New  York.     1858. 

[Reported  18  New  York,  9.] 

Denio,  J.^     The  principal  exception  to  the  judge's  charge  which  is 
now  relied  on,  relates  to  the  consideration  which  should  be  given  to 
the  proof  that  the  prisoner  was  intoxicated  at  the  time  of  the  homi- 
cide.    The  commission  of  crime  is  so  often  the  attendant  upon  and 
the  consequence  of  drunkenness,  that  we  should  naturally  expect  the 
law  concerning  it  to  be  well  defined.     Accordingly  we  find  it  laid  down 
as  early  as  the  reign  of  Edward  VI.  (1548),  that  "if  a  person  that  ist 
drunk  kills  another,  this  shall  be  felony,  and  he  shall  be  hanged  for  it. 
And  yet  he  did  it  through  ignorance,  for  when  he  was  drunk  he  had 
no  understanding  nor  memory  ;  but  inasmuch  as  that  ignorance  was 
occasioned  by  his  own  act  and   folly,  and  he  might  have  avoided   it, 
he  shall  not  be  privileged  thereby."     Plowden,  19.     The  same  doc-l 
trine  is  laid  down  by  Coke  in  the  Institutes,  where  he  calls  a  drunk- 
ard voluntarius  dcemo?i,  and  declares  that  "  whatever  hurt  or  ill  he 
doeth,  his   drunkenness   doth    aggravate  it."     3  Thomas's   Coke,  46. 
So  in  his  Reports  it  is  stated  that  "although  he  who  is  drunk  is  foi^ 
the  time  non  compos  mentis^  yet  his  drunkenness  does  not  extenuat 
his  act  or  offence,  nor  turn  to  his  avail ;  but  it  is  a  great  offence  i 
itself,   and  therefore   aggravates  his  offence,  and   doth    not   derogat 
from  the  act  which  he  did  during  that  time,  —  and  that  as  well  in  case 
touching  his  life,  his  lands,  his  goods,  or  any  other  thing  that  concerns' 
him."     Beverley's  Case,  4  Co.  125,  a.     Lord  Bacon,  in  his  "  Maxims 
of  the  Law,"  dedicated  to  Queen  Elizabeth,  asserts  the  doctrine  thus  : 
"If  a  madman  commit  aJelon3%  he   shall  not  lose  his  life  for  it,  be:. 
cause  his  infirmity  came  by  the  act  of  God ;  but  if  a  druuken  man 
commit  a  felony,  he  shall  not  be  excused^  because  the  imperfectioji 
came   by  hi^. own  default"     Bale  V.     And  that  great  and    humane 
Judge,    Sir   Matthew   Hale,    in   his    "  History   of    the   Pleas   of  the 

1  Ace.  U.  S.  V.  McGlue,  1  Curt.  1;  Beasley  v.  State,  50  Ala.  149;  Fisher  v   State,  64 
Ind.  435;  Maconnehey  v.  State,  5  Ohio  St.  77;  State  v.  Kobinson,  20  W.  Va.  713.  —  Ed. 
^  Parts  only  of  the  opinions  are  given. 


468 


PEOPLE   V.    ROGERS. 


[chap.  YII. 


Crown,"  written  nearly  two  hundred  years  ago,  does  not  countenance 
any  relaxation  of  the  rule.     "The  third  kind  of  dementia,"  he  says, 
-is  that  which    is   dementia   affectata,   namely,    drunkenness.     This 
vice  doth  deprive  men  of  tlie  use  of  reason,  and  puts  many  men  into 
a   perfect   but   temporary  frenzy,    and   therefore ,_accoLding_tQ__some.,^-<^. 
civihans,  such  a  persojLjgPJiimMng  JjomlddP^sJiall  not  b£_pumali£d 
simply  foj-tjiei^uneof  hpjnicitle^bu];  shall  suffer  .for  his  drmikenness^ 
answeraljle  to  the  nature  of  the  crime  occasioned  thereby,  so  that  yet 
the  primal  cau^e_of  the  piiuisliui^it  is  rather  the  drunketUiessJliaii  the 
crime  committed  in  It ;   hut  by  the  laws  of  England  such  a  person 
shall  have  no  privilege  by    his  voluntarily  contracted    madness,   but 
shall  have  the  same  judgment  as  if  he  were  in  his  right  senses."     He 
states  two  exceptions  to  the  rule  :  one  where  the  intoxication  is  without 
fault  on   his  part,  as  where  it  is  caused  by  drugs  administered  by  an 
unskilful  physician  ;  and  the  other,  where  indulgence  in  habits  of  in- 
temperance has  produced  permanent  mental  disease,  which  he  calls 
fixed  frenzy.     1  Hale,  32.     Coming  down  to  more  modern  times,  we 
find  the  principle  insisted  upon  by  the  enlightened  Sir  William  Black- 
stone.     "  The  law  of  England,"  he  says,  "  considering  how  easy  it  is 
to  contract  this  excuse,  and  how  weak  an  excuse  it  is  (though  real)^,^ 
will  not  suffer  any    man    thus    to   privilege    one    crime  by  another." 
4  Com.  26.     A  few  recent  cases  in  the  English  courts  will  show  the 
consistency  with  which  the  rule  has  been  followed  down  to  our  own 
times.      In  Burrow's  Case  (Lewin's  Cr.  C.  75,  a.  d.   1823)  the  pris- 
oner was  indicted  for  a  rape,  and  urged  that  he  was  in  liquor.     Hol- 
royd,  J.,  addressed  the  jury  as  follows:  "  It  is  a  maxim  in  law  that 
ifi,maB-g£ts.  himsel£-iutoxicated,  he  is.an'-iwornblf^  to  the  cnnseiiiiPiices^ 
ancTis  not  excusable  on  account  of  any  crime  he  may  commit  when 
'infuriated   by   liquor,    proYided- iie— was   i>i--eviously  in  a  ftt-iiliite.  oL 
TP>^^nn  tn  know  vicrlit  from   wrong.     If,  indeed,  the  infuriated   state  at 
which  he  arrives  should  continue  and  become  a  lasting  malady,  then 
he  is  not  answerable."     A  similar  charge  was  given  to  the  jury  in  the 
next  case  in  the  same  book,  where  drunkenness  was  urged  upon  the 
trial  of  an  indictment  for  burglaiy.     Patrick  Carroll  was  tried  in  1835, 
at  the  Central  Criminal  Court,  before  a  judge  of  the  King's  Bench  and 
a  judge  of  the  Common  Pleas,  for  the  murder  of  Elizabeth  Browning. 
It  appeared  that  shortly  before  the  homicide  the  prisoner  was  very 
drunk.     His     counsel,    though    he  admitted    that   drunkenness  could 
not  excuse  from  the   commission   of  crime,  yet   submitted   that  in  » 
charge   for   murder,    the    material    question    being    whether    the    act 
was  premeditated  or  done  only  with  sudden  heat  and   impulse,   the 
fact  of  the  party  being  intoxicated  was  a  proper  circumstance  to  be 
taken  into  consideration,  and  he  referred   to  a  case  before  Holroyd, 
J.,  reported  in  2  Russell  on  Crimes  8,  Rex  v.  Grindley,  where  that 
doctrine  was  laid  down.     Parke,  J.,  in  summing  up,  said:  "Highly 
as  I  respect  that  late  excellent  judge,  I  differ  with  him,  and  my  brother 
Littledale  [the  associate]  agrees  with  me.     He   once   acted   on   that 


SECT.  II.] 


PEOPLE   V.    ROGERS. 


469 


case,  but  afterwards  retracted  his  opinion,  and  there  is  no  doubt  that 
that  case  is  not  law.  I  think  that  there  would  be  no  safety  for  human 
life  if  it  were  considered  as  law."  The  prisoner  was  convicted  and 
executed.  7  Carr.  &  Payne,  145.  It  would  be  easy  to  multiply 
citations  of  modern  cases  upon  this  doctrine  ;  but  it  is  unnecessary, 
as  they  all  agree   upon   the    main,  proposition,    namely,   tjiat  mental 


filienntinn,  produf^ed   by  drinking  iiitoxicatino:  liquors,  furnishes  no  im 


miinjiy  for  ci-imp.  Rex  V.  Meakin,  7  Carr.  &  Payne,  297,  and  Rex 
V.  Thomas,  7  id.  817,  may  be  mentioned;  and  in  this  country.  The 
United  States  v.  Drew,  5  Mason  C.  C.,R.  28,  and  The  United  States 
V.  JNIcGlue,  1  Curtis  C.  C.  R.  1,  will  be  found  to  maintain  the  principle 
upon  the  authority  of  Judge  Story  and  Judge  Curtis,  of  the  Supreme 
Court  of  the  United  States.  These  last  two  cases  are  interesting,  not 
only  for  stating  the  general  principle,  but  for  confirming  the  distinction 
laid  down  so  long  ago  by  gir  JMatthew-  Hale,  that  wJiere — ment.nl 
disease,  or  as  he  terras  it  a  "fixed  frenzy,"Js  .sliawiLtoJbe-lUe-xe.'iaLt 
of  drunkennes_s,  ih  is  pnt.iflpd  to  the  same  consideration  as  iaaaaiU' 
arising  from  any  ot.hpr  onnsp.  The  first  of  them  was  a  case  of  delirium 
tremens,  and  Judge  Story  directed  an  acquittal  on  that  account.  In 
the  other  the  evidence  left  it  doubtful  whether  the  furious  madness 
exhibited  by  the  prisoner  was  the  result  of  present  intoxication,  or  of 
delirium  supervening  upon  long  habits  of  indulgence.  This  state  of 
the  evidence  led  Judge  Curtis  to  state  the  rule  and  the  exception  with 
great  force  and  clearness.  In  this  state  the  cases  of  The  People  v. 
Hammoll  and  The  People  v.  Robinson,  reported  in  the  second  volume 
of  Judge  Parker's  Reports  (pp.  223,  23.5),  show  the  consistency  with 
which  the  doctrine  has  been  adhered  to  in  our  criminal  courts  and  in 
the  Supreme  Court.  The  opinion  in  the  last  case  contains  a  reference 
to  several  authorities  to  the  same  effect  in  the  other  states  of  the 
Union.  Where  a  principle  in  law  is  found  to  be  well  established  by  a 
series  of  authentic  precedents,  and  especially  where,  as  in  this  case, 
there  is  no  conflict  of  authority,  it  is  uiniecessary  for  the  judges  to 
vindicate  its  wisdom  or  policy.  It  will,  moreover,  occur  to 
mind  that  si^ch  a  principle  is  absolutely  essential  to  the  protec 
life  and  property.  In  the  forum  of  conscience  there  is  no  doubt 
siderable  difference  between  a  murder  deliberately  planned  and  exe-l 
cuted  by  a  person  of  unclouded  intellect,  and  the  reckless  taking  of 
life  by  one  infuriated  by  intoxication  ;  but  human  laws  are  based-upon 
considerations  of  policy,  and  look  rather  to  the  maintenance  of  per- 
sonal security  anrl  snein]  order  thaii- to  tin  acciirflle -discrimination  as 
^o  the  moral  gnalitips  of  individual  poiulnct.  But  there  is,  in  truth, 
no  injustice  in  holding  a  person  responsible  for  his  acts  committed  in 
a  state  of  voluntary  intoxication.  It  is  a  duty  which  every  one  owes 
to  his  fellow-men  and  to  society,  to  say  nothing  of  more  solemn  obli- 
gations, to  preserve,  so  far  as  it  lies  in  his  own  power,  the  inestimable 
gift  of  reason.  If  it  is  perverted  or  destroyexl  by  fixed  disease,  though 
brought  on  by  bis  own  vices,  the  law  hoWs  lnmjnot_accouiiiaiile.     But 


C7 

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c^ 


470  PEOPLE   V.    ROGERS.  [CHAP.  VII. 

if  by  a  voluntary  act  he  temporarily  casts  off  the_restraints  ofreason 
^Kdl^cienceTno  wrong  is  done  liim  if  he  is  considered  answerablp 
fV^T^^njurv  wbicli  in_thaL ataJgJl^Jiay  (ift  to  Otbers  or  to  society. 
— Before  proceeding  to  examine  the  judge's  charge,  it  is  necessary  to 
state  one  other  principle  connected  with  the  subject  of  intoxication. 
I  am  of  the  opinion  that,  in  cases  of  homicide,  the  fact  that  the  ac- 
cused was  under  the  influence  of  liquor  may  be  given  in  evidence  in 
his  behalf.     The  effect  which  the  evidence  ought  to  have  upon    the 
verdict  will  depend  upon  the  other  circumstances  of  the  case.     Thus, 
in  Rex  V.  Carroll,  which  was  a  case  of  murder  by  stabbing,  there  was 
not,  as  the  court  considered,  any  provocation  on  the  part  of  the  de- 
ceased, and  it  was  held  that  the  circumstance  that  the  prisoner  was 
intoxicated  was  not  at  all  material  to  be  considered.     Rex  v.  Meakin 
was  an  indictment  for  stabbing  with  a  fork,  with  intent  to  murder, 
and  it  was  shown  that  the  prisoner  was  the  worse  for  liquor.     Alder- 
son,  Baron,  instructed  the  jury  that,   with   regard   to  the  intention, 
<|riinkpnness  might  be  adverted  to  according  to  the  nature  of  the  iii- 
st.niment  used.     "  If,"  he  said,  "  a  man  uses  a  stick,  you  would  not 
infer  a  malicious  intent  so  strongly  against  him,   if  drunk  when  he 
made  an  intemperate  use  of  it,  as  you  would  if  he  had  used  a  different 
kind  of  weapon  ;  but  where  a  dangerous  instrumeiit  _i§  used,  whidi^ 
^Tco^WTngf^jQmf^^       grievous  bodilv  harm,  drunkenness  can  have  no 
effect  upon  the  consideration  pL  the  malicious  intent  of  thej2ait^ 
In  Rex  V.  Thomas  (for  maliciously  stabbing),  the  person  stabbed  had 
struck  the  prisoner  twice  with  his  fist,  when  the  latter,  being  drunk, 
stabbed  him,  and  the  jury  were  charged  that  drunkenness  might  be 
taken  into  consideration  in  cases  where  what  the  law  deems  sufficient 
provocation  has  been  given,  because  the  question  in  such   cases  is, 
whether  the  fatal  act  is  to  be  attributed  to  the  passion  of  anger  excited 
by  the  previous  provocation  ;  and  that  passion,  it  was  said,  is  more 
easily  excitable  in  a  person  when  in  a  state  of  intoxication  than  when 
he  is  sober.     So,  it  was  added,  where  the  question  is  whether  words 
have  been  uttered  with  a  deliberate   purpose,  or  are  merely  low  and 
idle  expressions,  the  drunkenness  of  the  person  uttering  them  is  proper 
to  be  considered.     But  if  there  is  really  a  i)revious  determination  to 
resent  a  slight  affront  in  a  barbarous  manner,  the  state  of  drunk'jnness 
in  which  the  prisoner  was,  ought  not  to  be  regarded,  for  it  would  fur- 
nish no  excuse. 

I  It  must  generally  happen,  in  homicides  committed  by  drunken  men, 
I  that  the  condition  of  the  prisoner  would  explain  or  give  character  to 
Isome  of  his  language,  or  some  part  of  his  conduct ;  and  therefore  I 
eim  of  opinion  that  it  would  never  be  correct  to  exclude  the  proof 
Altogether.  That  it  would  sometimes  be  right  to  advise  the  jury  that 
it  ought  to  have  no  influence  upon  the  case,  is,  I  think,  clear  from 
the  foregoing  authorities.  In  a  case  of  lengthened  premeditation,  of 
lying  in  wait,  or  where  the  death  was  b}'  poisoning,  or  in  the  case  of 
wanton  killing  without  any  provocation,  such  an  instruction  would 
j^lainly  be  proper. 


SECT.  II.]  PEOPLE   V.   ROGERS.  471 

Harris,  J.  No  rule  is  more  familiar  than  that  intoxication  is  never 
an  excuse  for  crime.  There  is  no  judge  who  lias  been  engaged  in  the 
adtninistration  of  criminal  law,  who  has  not  liad  occasion  to  assert  it. 
Even  where  intent  is  a  necessary  ingredient  in  the  crime  charged,  so 
long  as  the  offender  is  capable  of  conceiving  a  design,  he  will  be  pre- 
sumed, in  the  absence  of  proof  to  the  contrar}-,  to  have  intended  the 
natural  consequences  of  his  own  act.  Tluis,  if  a  man,  without  provo- 
. cation,  shoot  another  or  cleave  him  down  with  an  axCi  no  dpcri-pp  of 
intoxication,  short  of  that  which  shows  that  he  was  at  the  time  utterly 
incapable  of  acting  from  motive,  will  shield  him  from  convitttion.  This 
was,  in  substance,  the  doctrine  which  the  jury  received  from  the  court 
in  this  case.  The  defendant  had  struck  a  blow  with  a  deadly  weapon, 
which  had  resulted  in  immediate  death.  To  this  act  the  law,  without 
further  proof,  imputed  guilty  design.  If  the  perpetrator  would  escape 
the  consequences  of  an  act  thus  committed,  it  was  incumbent  on  him 
to  sliow,  either  that  he  was  incapable  of  entertaining  such  a  purpose, 
or  that  the  act  was  committed  under  provocation.  In  respect  to  the 
latter,  there  was  nothing  said  by  the  court,  nor  any  request  to  charge. 
Had  it  been  contended  that  the  blow  was  struck  in  the  heat  of  passion, 
it  might  then  have  been  proper  to  instruct  the  jury  that,  in  determin- 
ing this  question,  the  intoxication  of  the  defendant  might  well  be  con- 
sidered. No  such  ground  appears  to  have  been  taken  by  the  counsel 
for  the  defence.  There  was,  indeed,  some  testimon}'  tending  to  show 
that  the  defendant  had  been  struck  before  he  committed  the  act  for 
which  he  was  tried.  But  the  weight  of  the  testimon}'  is  clearly  ag.ainst 
this  theory  of  the  case.  It  was  no  doubt  judicious,  therefore,  for  the 
defendant's  counsel  to  refrain  from  asking  the  court  to  charge  that 
the  intoxication  of  the  defendant  might  be  considered  by  the  jury  in 
determining  whether  the  blow  was  struck  in  the  heat  of  passion,  or 
■with  premeditated  design.  Had  such  a  request  been  made,  I  think  it 
would  have  been  the  duty  of  the  court  so  to  charge  ;  though  from  tiie 
state  of  the  testimony,  it  is  not  likely  that  the  result  would  have  been 
favorable  to  the  defendant. 

In  tlie  case  now  before  ns,  there  was  no  attempt  to  show  that  the 
act  of  killing  was  committed  under  the  impulse  of  sudden  passion.  All 
that  the  court  was  requested  to  do  was  to  instruct  the  jury  that  if  they 
were  satisfied  thiit,  by  reason  of  intoxication,  there  was  no  intention  or 
motive  to_.CQmmit  the  crime-u£jiiurder,  the}-  sliould  convict  the  df'ff'id- 
ant  of  manslaughter  only.  In  refusing  so  to  charge,  there  was  no 
error,  if,  by  this  request,  the  counsel  for  the  defendant  meant,  as 
the  request  seems  to  have  been  interpreted  by  the  Supreme  Court,  tliat 
the  jury  should  be  instructed  to  take  into  consideration  the  intoxica- 
tion of  the  defendant  in  determining  the  intent  with  which  the  homi- 
cide was  committed,  the  proposition  is  not  law.  It  has  never  yet  been 
held  that  the  crime  of  murder  can  be  reduced  to  manslaughter  by 
showing  that  the  perpetrator  was  drunk,  when  the  same  offence,  if 
committed  by  a  sober  man,  would  be  murder.     If,  on  the  other  hand, 


472  CHOICE    V.    STATE.  [CHAP.  VII. 

it  was  intended  tliat  the  court  should  instruct  the  jury  that  if,  by  reason 
of  intoxication,  the  defendant  was  so  far  deprived  of  his  senses  as  to 
be  incapable  of  entertaining  a  purpose,  or  acting  from  design,  the  jury 
were  so  instructed.  This  was  enough,  unless  the  counsel  for  the  de- 
fendant desired  to  have  the  jury  decide  whether  the  act  was  not  com- 
mitted in  the  heat  of  passion.  In  that  case,  his  proposition  must  have 
been  very  differently  framed. 

Judgment  of  the  Supreme  Court  reversed,  and  that  of  the  General 
Sessions  affirmed. 


CHOICE  V.    STATE. 
Supreme  Court  of  Georgia.     1860. 

[Reported  31   Georgia,  424.] 

Lumpkin,  J.'  The  sixth  error  alleged  in  the  motion  for  a  new  trial 
is,  because  the  judge  failed  to  include  in  his  charge  to  the  jury  the 
law  on  the  material  facts  proven  in  the  evidence  and  insisted  on  in 
the  argument  of  counsel ;  and  especially  in  failing  to  charge  the  jury 
whether  the  prisoner  was  or  w  as  not  responsible  for  crime,  if  by  rea- 
son of  the  injury  to  his  brain  o)-  othericise  (mark  that  expression  !)he 
was  afflicted  with  the  disease  called  oinomania,  and  by  reason  of  this 
disease  was  irresistibly  impelled,  b}'  a  will  not  his  own,  to  drink,  and 
after  being  so  impelled  did  drink,  and  thus  became  insane  from 
drink,  and  while  thus  insane  he  committed  homicide.  The  court  also 
erred  in  not  charging  the  jury  that  if  they  believed  the  prisoner  had 
suffered  by  injury,  or  otherwise  (mark  that  again  !),  a  pathological  or 
organic  change  in  the  brain,  which  produced  the  disease  of  oinomania, 
and  by  this  disease  was  irresistibly  impelled  to  drink  liquor,  and  from 
the  liquor  tluis  drank  became  insane,  and  while  thus  insane  killed 
deceased,  he  was  not  guilty  of  murder. 

Whether  any  one  is  born  with  an  irresistible  desire  to  drink,  or 
whether  such  thirst  may  be  the  result  of  accidental  injury  done  to  the 
brain,  is  a  theory  not  yet  satisfactorily  established.  For  myself,  I 
capitally  doubt  whether  it  ever  can  be.  And  if  it  were,  how  far  this 
crazy  desire  for  liquor  would  excuse  from  crime,  it  is  not  for  me  to 
say.  That  this  controlling  thirst  for  liquor  may  be  acquired  by  the 
force  of  habit,  until  it  becomes  a  sort  of  second  nature,  in  common 
language,  I  entertain  no  doubt.  Whether  even  a  long  course  of  in- 
dulgence  will  produce  a  pathological  or  organic  change  in  the  brain,  I 
venture  no  opinion.  Upon  this  proposition,  however,  I  plant  myself 
immovably,  and  from  it  nothing  can  dislodge  me  but  an  Act  of  the 
Legislature  ;  namely,  that  neither  moral  nor  legal  responsibility  can  be 
avoided  in  this  way.     This  is  a  new  principle  sought  to  be  ingrafted 

^  Part  of  the  opinion  only  is  given. 


SECT.  II.]  STATE    V.   JOHNSON.  473 

ui)on  criminal  jurisprudence.  It  is  neither  more  nor  less  than  this, 
—  that  a  want  of  will  and  conscience  to  do  right  will  constitute  an 
excuse  for  the  commission  of  crime  ;  and  that,  too,  where  this  deficiency 
in  will  and  conscience  is  the  result  of  a  long  and  persevering  course  of 
wrong-doing.  If  this  doctrine  be  true,  —  I  speak  it  with  nil  serious- 
ness, —  the  devil  is  the  most  irresponsible  being  in  the  universe.  For, 
from  his  inveterate  hostility  to  the  Author  of  all  good,  no  other  crea- 
ture has  less  power  than  Satan  to  do  right.  The  burglar  and  the 
pirate  may  indulge  in  robbing  and  murder  until  it  is  as  hard  for  an 
Ethiopian  to  change  his  skin  as  for  tliem  to  cease  to  do  evil,  but  the 
inability  of  Satan  to  control  his  will,  to  do  right,  is  far  beyond  theirs ; 
and  yet  our  faith  assures  us  that  the  fate  of  Satan  is  unalterably  and 
eternally  fixed  in  the  prison-house  of  God's  enemies.  The  fact  is, 
responsibility  depends  upon  the  possession  of  will,  —  not  the  power 
over  it.  Nor  does  the  most  desperate  drunkard  lose  the  power  to 
control  his  will,  but  he  loses  the  desire  to  control  it.  No  matter  how 
deep  his  degradation,  the  drunkard  uses  his  will  when  he  takes  his 
cup.  It  is  for  the  pleasure  of  the  relief  of  the  draught,  that  he  takes 
it.  His  intellect,  his  appetite,  and  his  will,  all  work  rationall3^  if  not 
wisely,  in  his  guilty  indulgence.  And  were  you  to  exonerate  the  ine- 
briate from  responsibility,  you  would  do  violence  both  to  his  conscious- 
ness and  to  his  conscience  ;  for  he  not  only  feels  the  self-prompted 
use  of  every  rational  power  involved  in  accountability,  but  he  feels 
also  precisely  what  this  new  philosophy  denies,  —  his  solemn  and  | 
actual  wrong-doing,  in  the  very  act  of  indulgence.  Converse  seriously 
with  the  greatest  drunkard  this  side  of  actual  insanity,  —  just  compose 
him,  so  as  to  reach  his  clear,  constant  experience,  —  and  he  will  confess 
that  he  realizes  the  guilt,  and  therefore  the  responsibility  of  his  con- 
duct. A  creature  made  responsible  by  God  never  loses  his  respon- 
sibility save  by  some  sort  of  insanity.  There  have  always  existed 
amongst  men  a  variety  of  cases  wherein  the  will  of  the  transgressor 
is  universally  admitted  to  have  little  or  no  power  to  dictate  a  return  to 
virtue.  But  mankind  have  never,  in  any  age  of  the  world,  exonerated 
the  party  from  responsibility,  except  where  they  were  considered  to 
have  lost  rectitude  of  intellect  by  direct  mental  alienation.^ 


STATE   V.   JOHNSON. 
Supreme  Court  of  Errors  of  Connecticut.     1873. 

{Reported  AO  Connecticut,  136] 

Carpenter,  J.^    The  prisoner  was  indicted  and  on  trial  for  murder 
in  the  first  degree.     As  the  homicide  was  not  perpetrated  by  means  of 

1  See  accord  Flanigan  v.  People,  86  N.  Y.  554.  —  Ed. 

2  Part  of  the  opinion  only  is  given. 


474  PEOPLE    V.    WALKER.  [CHAP.  VII. 

poison,  or  lying  in  wait,  or  in  committing  or  attempting  to  commit  any 
of  the  crimes  enumerated  in  the  statute,  he  could  only  be  convicted  of 
the  higher  offence  by  showing  that  it  was  a  wilful,  deliberate,  and 
premeditated  killing.  A  deliberate  intent  to  take  life  is  an  essential 
element  of  that  offence.  The  existence  of  such  an  intent  must  be 
shown  as  a  fact.  Implied  malice  is  sufficient  at  common  law  to  make 
the  offence  murder,  and  under  our  statute  to  make  it  murder  in  the 
second  degree ;  but  to  constitute  murder  in  the  first  degree,  actual 
malice  must  be  proved.  Upon  this  question  the  state  of  the  prisoner's 
mind  is  material.  In  behalf  of  the  defence,  insanity,  intoxication,  or 
any  other  fact  which  tends  to  prove  that  the  prisoner  was  incapable  of 
deliberation,  was  competent  evidence  for  the  jury  to  weigh.  Intoxica- 
tion is  admissible  in  such  cases,  not  as  an  excuse  for  crime,  not  in 
mitigation  of  punishment,  but  as  tending  to  show  that  the  less  and  not 
the  greater  offence  was  in  fact  committed.  I  cite  a  few  only  of  the 
many  authorities  which  sustain  this  position.  Keenan  v.  The  Com- 
monwealth, 44  Pa.  55  ;  Roberts  v.  The  People,  19  Mich.  401 ;  Pigman 
V.  The  State,  14  Ohio,  555  ;  State  v.  Garvey,  11  Minn.  154  ;  Haile  v. 
The  State,  11  Humph.  154  ;  Shannahan  v.  The  Commonwealth,  8  Bush 
(Ky.),  463 ;  Ray's  Med.  Jur.  5th  ed.  566.* 


PEOPLE  V.  WALKER. 
Supreme  Court  of  Michigan.     1878. 

[Reported  38  Michigan,  156.] 

CooLET,  J.^  The  defendant  was  convicted  in  the  court  below  for 
the  larceny  of  a  sum  of  money  from  one  Martin.  All  the  evidence  in 
the  case  tended  to  show  that  if  the  defendant  took  the  money  wrong- 
fully, it  was  while  he  was  under  the  influence  of  liquor,  and  some  of 
it  indicated  that  he  was  very  drunk. 

The  circuit  judge  was  requested  to  charge  the  jury,  that,  "  even  if 
the  jury  should  believe  that  defendant  was  intoxicated  to  such  an 
extent  as  to  make  him  unconscious  of  what  he  was  doing  at  the  time 
of  the  commission  of  the  alleged  offence,  it  is  no  excuse  for  him,  and 
they  should  not  take  it  into  consideration.  A  man  who  voluntarily  puts 
himself  in  condition  to  have  no  control  of  his  actions  must  be  held  to 
intend  the  consequences."  This  charge  was  given  in  reliance  upon  the 
general  principle  that  drunkenness  is  no  excuse  for  crime. 

1  Ace.  Hopt  V.  People,  104  U.  S.  631;  Cartwright  v.  State,  8  Lea,  376;  Ferrell  ». 
State,  43  Tex.  503;  State  v.  Robinson,  20  W.  Va.  713. 

The  same  principle  would  seem  to  apph'  where  it  is  desired  to  show  that  hy  reason 
of  intoxication  an  intent  to  kill  was  absolutely  lacking,  and  so  to  reduce  the  degree  of 
a  homicide  to  manslaughter.     Reg.  v.  Doherty,  16  Cox  C.  C.  306.  —  Ed. 

■■'  Part  of  the  opinion  only  is  given. 


SECT.  III.]  ANONYMOUS.  475 

While  it  is  true  that  drunkenness  cannot  excuse  crime,  it  is  equally 
true  that  when  a  certain  intent  is  a  necessary  element  in  a  crime,  the 
crime  cannot  have  been  committed  when  the  intent  did  not  exist.  In 
larceny  the  crime  does  not  consist  in  the  wrongful  taking  of  the  prop- 
erty, for  that  might  be  a  mere  trespass  ;  but  it  consists  in  the  wrongful 
taking  with  felonious  intent ;  and  if  the  defendant,  for  any  reason 
whatever,  indulged  no  such  intent,  the  crime  cannot  have  been  com- 
mitted. This  was  fully  explained  by  Mr.  Justice  Christiancy  in  Roberts 
V.  People,  19  Mich,  401,  and  is  familiar  law.  See  also  Nichols  v. 
State,  8  Ohio  St.  435  ;  Regina  v.  Moore,  3  C.  &  K.  319. 

The  circuit  court  should  be  advised  to  set  aside  the  verdict  and 
grant  a  new  trial. 

The  other  justices  concurred.^ 


SECTION   III. 

Coercion. 

ANONYMOUS. 
Assizes.     1352. 

[Reported  Liber  Asst'sarum,  137  pi.  40.]  _ 

A  WOMAN  was  arraigned  for  that  she  had  feloniously  stolen  two 
shillings'  worth  of  bread.  She  said  that  she  did  it  by  (^omnmnd  of  him 
who  was  at  that  tinie  her  liusbamL.  And  the  justices  out  of  pity  would 
not  accept  her  confession,  but  took  a  jury ;  by  which  it  was  found 
that  she  did  it  by  coercion  of  her  husband,  in  spite  of  herself.  Where- 
fore she  was  acquitted.  And  it  was  said  that  by  command  of  a  husband., 
without^other  coercion,  there  shall  be  no  sort  of  felony,  etc.^ 

1  See  to  the  same  effect  the  following  cases:  People  v.  Blake,  65  Cal.  275  (forgery); 
State  V.  Bell,  29  la.  316  (burglary);  Roberts  v.  People,  19  Mich.  401  (assault  with 
intent  to  kill);  Pigman  v.  State,  14  Ohio,  555  (passing  counterfeit  money).  —  Ed. 

2  When  a  wife  commits  a  crime  in  her  husband's  presence,  the  presumption  is  that 
she  acted  by  his  coercion;  and  if  so,  she  is  excused.  Reg.  v.  Price,  8  C.  &  P.  19;  Com. 
V.  Eagan,  103  Mass.  71;  State  y.  Williams,  65  N.  C.  398.  This  presumption  may, 
however,  be  rebutted  by  proof  that  the  wife  did  not  act  by  the  husband's  coercion.  U.  S. 
V.  Terry,  42  F.  R.  317;  Seiler  v.  People,  77  N.  Y.  411;  Uhl  v.  Com.,  6  Gratt.  706; 
Miller  v.  State,  25  Wis.  384.  The  land  of  a  wife  who  left  the  country  with  her  hus- 
band was  held  not  liable  to  confiscation  under  the  "Absentee  Act "  in  Martin  v.  Com., 
1  Mass.  387.  —  Ed. 


476 


m'growtheu's  case.  [chap.  yii. 


ANONYMOUS. 
Cambridge  Assizes.     1664. 

[Reported  Kelyng,  31.] 

It  was  propounded  to  all  the  judges:  If  a  man  and  his  wife  go 
both  together  to  commit  a  burglary,  and  both  of  them  break  a  house 
in  the  night,  and  enter  and  steal  goods,  what  offence  this  was  in  the 
wife ;  and  agreed  by  all,  that  it  was  no  felony  in  the  wife,  for  the 
wife  being  together  with  the  husband  in  the  act,  the  law  supposeth 
the  wife  doth  it  by  coercion  of  the  husband.  And  so  it  is  in  all  larce- 
nies ;  but  as  to  murder,  if  husband  and  wife  both  join  in  it,  they  are 
both  equally  guilty.  Vid.  2  E.  III. ;  F.  Coroue,  160  ;  27  Ass.  pi.  40  ;  V. 
Corone,  199;  Poulton  de  Pace,  126,  b;  and  the  case  of  the  Earl  of 
Somerset  and  his  lady,  both  equally  found  guilty  of  the  murder  of  Sir 
Thomas  Overbury,  by  poisoning  him  in  the  Tower  of  Loudon  [2  How. 
St.  Tr.  951,  3  Co.  Inst.  49]. 


M'GROWTHER'S   CASE. 
Surrey  Special  Assizes.^     1746. 

[Reported  Foster  C  L.  13.] 

In  the  case  of  Alexander  M'Growther,  there  was  full  evidence 
touching  his  having  been  in  the  rebellion,  and  his  acting  as  a  lieu- 
tenant in  a  regiment  in  the  rebel  army  called  the  Duke  of  Perth's  regi- 
ment.    The  defence  he  relied  on  was  that  he  was  forced  in. 

And  to  that  purpose  he  called  several  witnesses,  who  in  general 
swore  that  on  the  2<Sth  of  August  the  person  called  Duke  of  Perth,  and 
the  Lord  Strathallan,  with  about  twenty  Highlanders,  came  to  the  town 
where  the  prisoner  lived ;  that  on  the  same  day  three  several  sum- 
monses were  sent  out  by  the  Duke,  requiring  his  tenants  to  meet  him, 
and  to  conduct  him  over  a  moor  in  the  neighborhood,  called  Luiny 
Moor ;  that  upon  the  third  summons  the  prisoner,  who  is  a  tenant  to 
the  Duke,  with  about  twelve  of  the  tenants,  appeared :  that  then  the 
Duke  proposed  to  them  that  they  should  take  arms  and  follow  him 
into  the  rebellion  ;  that  the  prisoner  and  the  rest  refused  to  go  ;  where- 
upon they  were  told  that  they  should  ])e  forced,  and  cords  were  brought 
by  the  Duke's  party  in  order  to  bind  them  ;  and  that  then  the  prisoner 
and  ten  more  went  off,  surrounded  by  the  Duke's  part}'. 

These  witnesses  swore  that  the  Duke  of  Perth  threatened  to  burn  the 

1  Coram  Lee,  C.  J.,  Willes.  C.  J.,  Wright  and  Foster,  JJ.,  Reynolds  and  Clive,  BB. 
Reported  also  18  How.  St.  Tr.  391.  —  Ed. 


SECT.  III.]  REGIXA   V.    DYKI-.S.  477 

houses  and  to  drive  off  the  cattle  of  such  of  his  tenants  as  should 
refuse  to  follow  him. 

They  all  spake  very  extravagantly  of  the  power  lords  in  Scotland 
exercise  over  their  tenants,  and  of  the  obedience  (even  to  the  joining 
in  rebellion)  wliich  they  expect  from  them. 

Lord  Chief  Justice  Lee,  in  summing  up,  observed  to  the  jury  that 
there  is  not,  nor  ever  was,  any  tenure  which  obligeth  tenants  to  follow 
their  lords  into  rebellion. 

And  as  to  the  matter  of  force,  he  said  that  the  fear  of  having 
houses  burnt  or  goods  spoiled,  supposing  that  to  have  been  tlie  case  of 
the  prisoner,  is  no  excuse  in  the  eye  of  the  law  for  joining  and  marching 
with  rebels. 

The  only  force  that  doth  excuse  is  a  force  upon  the  person,  and  pres- 
ent fear  of  death  ;  and  this  force  and  fear  must  continue  all  the  time 
the  party  remains  with  the  rebels.  It  is  incumbent  on  every  man,  wlio 
makes  force  his  defence,  to  shew  an  actual  force,  and  that  he  quitted 
the  service  as  soon  as  he  could ;  agreeably  to  the  rule  laid  down  in 
Oldcastle's  Case,  that  they  ]omQ(\  pro  timore  mortis,  et  recesserunt  quam 
cito  potuerunt. 

He  then  observed  that  the  only  force  the  prisoner  pretends  to  was 
on  the  28th  of  August ;  and  that  he  continued  with  the  rebels  and  bore 
a  commission  in  their  army  till  the  surrender  of  Carlisle,  which  was  on 
or  about  the  30th  of  December. 

The  jury  without  going  from  the  bar  found  him  guilty.  But  he  was 
not  executed. 

N.  B.  All  the  judges  that  were  in  town  were  present,  and  concurred 
in  the  points  of  law. 


REGINA   V.  DYKES. 

Maidstone  Assizes.    1885. 

[Reported  15  Cox  C  C  771] 

In  this  case  the  two  prisoners,  who  were  husband  and  wife,  were 
charged  with  highway  robbery  with  violence. 

The  facts  as  proved  in  evidence  clearly  disclosed  the  felony  charged 
in  the  indictment,  but  as  regards  the  female  prisoner  there  was  some 
evidence  to  show  that  in  what  she  had  done,  and  in  the  violence  which 
she  had  used  against  the  prosecutor,  she  was  acting  under  the  compul- 
sion of  her  husband,  and  in  fear  of  violence  from  him. 

H.  F.  Dickens,  for  the  prosecution. 

G.  L.  Denmon,  for  the  defence,  submitted,  on  the  authority  of  Reg. 
y.  Torpey,  12  Cox  C.  C.  45,  that  there  was  no  case  to  go  to  the  jury 
as  against  the  wife.  And  upon  the  learned  judge  ruling  that  it  was 
for  the  jury  to  find  whether  upon  the  facts  the  wife  had  acted  under 


]' 


478  COMMONWEALTH  V.   DALEY.  [CHAP.  VII. 

the  coercion  of  her  husband  or  not,  addressed  the  jury  for  the  defence ; 
and    while  admitting  that  the  male  prisoner  must  be  convicted,  urged 
that  the  wife  had  really  acted  under  the  coercion  of  the  husband. 
The  learned  judge  [Stephen,  J.],  in  summing  up,  left  the  following 

questions  to  the  jury  :  —  .       .,.    ^    ri.,  • 

1.  Were  the  prisoners  individually  guilty  or  not  guilty?  This  ques- 
tion to  be  answered  as  if  they  were  unmarried. 

2.  If  both  are  found  guilty,  then  as  a  matter  of  fact  did  the  wife 
act  under  the  compulsion  of  her  husband? 

The  jury  found  both  prisoners  guilty,  but  also  found  that  the  wife 
had  acted  under  the  compulsion  of  the  husband. 

Upon  this  finding  counsel  for  the  defence  claimed  a  verdict  of  not 
guilty  in  favor  of  the  wife,  quoting  the  case  already  cited,  and  also 
Reg.  V.  Woodward,  8  C.  &  P.  561. 

After  consideration  the  learned  judge  directed  an  acquittal  to  be 
entered  for  the  wife,  who  was  discharged.^ 


COMMONWEALTH   v.  DALEY. 
Supreme  Judicial  Court  of  Massachusetts.    1888. 

[Reported  148  Massachusetts,  11.] 

C.  Allen,  J.^  When  a  married  woman  is  indicted  for  a  crime,  and 
it  is  contended  in  defence  that  she  ought  to  be  acquitted  because  she 
acted  under  the  coercion  of  her  husband,  the  question  of  fact  to  be 
determined  is  whether  she  really  and  in  truth  acted  under  such  coercion, 
or  whether  she  acted  of  her  own  free  will  and  independently  of  any 
coercion  or  control  by  him.  To  aid  in  determining  this  question  of 
fact,  the  law  holds  that  there  is  a  presumption  of  such  coercion  from 
his  presence  at  the  time  of  the  commission  of  the  crime  ;  this  presump- 
tion, however,  is  not  conclusive,  and  it  may  be  rebutted.  And  in  order 
to  raise  this  presumption  it  is  also  established  that  the  husband's  pres- 
ence need  not  be  at  the  very  spot,  or  in  the  same  room,  but  it  is 
sufficient  if  he  was  near  enough  for  her  to  be  under  his  immediate 
control  or  influence. 

No  exact  rule  applicable  to  all  cases  can  be  laid  down  as  to  what 
degree  of  proximity  will  constitute  such  presence,  because  this  may 
vary  with  the  varying  circumstances  of  particular  cases.     And  where 

1  See  Rex  v.  Buncombe,  1  Cox  C.  C.  183;  People  v.  Wright,  38  Mich,  744. 

"A  wife  may  be  indicted  together  with  her  husband,  and  condemned  to  the  pillory 
with  him  for  keeping  a  bawdj'-house;  for  this  is  an  offence  as  to  the  government  of  the 
house,  in  which  the  wife  has  a  principal  share ;  and  also  such  an  offence  as  may  gener- 
ally be  presumed  to  be  managed  by  the  intrigues  of  her  sex."    1  Hawk.  P.  C.  ch.  1, 
^  8.  12.     See  Reg.  v.  Williams,  10  Mod.  63;  State  v.  Bentz,  11  Mo.  27.  —  Ed. 

2  Part  of  the  opinion  only  is  given. 


^ 


SECT.  IV.]  KEGINA   V.   SMITH.  479 

the  wife  did  not  act  in  the  direct  presence  of  her  husband  or  under  his 
eye,  it  must  usually  be  left  to  the  jury  to  determine  incidentally  whether 
his  presence  was  sufficiently  immediate  or  direct  to  raise  the  presump- 
tion. But  the  ultimate  question,  after  all,  is  whether  she  acted  under 
his  coercion  or  control,  or  of  her  own  free  will  independently  of  any 
coercion  or  control  by  him  ;  and  this  is  to  be  determined  in  view  of 
the  presumption  arising  from  his  presence,  and  of  the  testimony  or 
circumstances  tending  to  rebut  it,  if  any  such  exist.  Commonwealth 
V.  Burk,  11  Gray,  437;  Commonwealth  v.  Gannon,  97  Mass.  547; 
Commonwealth  v.  Welch,  97  Mass.  593  ;  Commonwealth  v.  Eagan, 
103  Mass.  71  ;  Commonwealth  v.  Munsey,  112  Mass.  287;  Common- 
wealth V.  Gormley,  133  Mass.  580  ;  Commonwealth  v.  Flaherty,  140 
Mass.  454 ;  Commonwealth  v.  Hill,  145  Mass.  305,  307.^ 


SECTION   IV. 

Infancy:  Incorporation. 

1  Hawk.  P.  C.  ch.  1,  s.  14.  Neither  a  son  nor  a  servant  are  excused 
the  commission  of  any  crime,  whether  capital  or  not  capital,  by  the 
command  or  coercion  of  the  father  or  master.'^ 


REGINA  V.  SMITH. 
Somerset  Assizes.    1845. 

[Reported  1  Cox  C.  C.  260.] 

^  /  Indictment  for  maliciously  setting  fire  to  a  hayrick. 

*<  It  appeared  that  the  prisoner  was  a  boy  of  the  age  of  ten  years. 

j  /  There  was  no  evidence  of  any  malicious  intention. 

Erle,  J.  (to  the  jury).  Where  a  child  is  under  the  age  of  seven 
years,  the  law  presumes  him  to  be  incapable  of  committing  a  crime ; 
after  the  age  of  fourteen,  he  is  presumed  to  be  responsible  for  his  actions 
as  entirely  as  if  he  were  forty  ;  but  between  the  ages  of  seven  and  four- 
teen, no  presumption  of  law  arises  at  all,  and  that  which  is  termed  a 
malicious  intent,  —  a  guilty  knowledge  that  he  was  doing  wrong,  — 
must  be  proved  by  the  evidence,  and  cannot  be  presumed  from  the 

1  Where  a  crime  is  committed  by  a  wife  in  the  absence  of  her  husband  there  is  no 
presumption  of  coercion,  though  coercion  in  fact  may  be  shown.  Com.  v.  Tryon,  99 
Mass.  442;  State  v.  Collins,  1  McCord,  355;  State  v.  Potter,  42  Vt.  495.  —  Ed. 

2  See  Com.  v.  Mead,  10  All.  398;  State  v.  Learnard,  41  Vt.  585.  —  Ed. 


480  COMMONWEALTH   V.   NEW   BEDFORD   BllIDGE,      [CHAP.  YII. 

mere  commissiou  of  tae  act.  You  are  to  determiue  from  a  review  of 
the  evidence  wliether  it  is  satisfactorily  proved  that  at  the  time  he  fired 
the  rick  (if  you  should  be  of  opinion  he  did  fire  it)  he  had  a  guilty 
knowledge  that  he  was  committing  a  crime.  Not  guilty.'^ 


COMMONWEALTH   v.  PROPRIETORS  OF   NEW   BEDFORD 

BRIDGE. 

Supreme  Judicial  Court  of  Massachusetts.    1854. 

[Reported  2  Gray,  339.] 

IxDiCTMENT  for  a  nuisance,  occasioned  by  the  erection  and  mainten- 
ance of  a  bridge  in  and  across  the  Acushnet,  a  navigable  river,  flowing 
between  the  city  of  New  Bedford  and  the  town  of  Fairhaven,  and 
thereby  filling  yp  and  obstructing  the  navigation  of  the  river.  The 
indictment  was  found  at  June  term,  1852,  of  the  Court  of  Common 
Pleas. 

At  the  trial  in  that  court,  before  Btixgton,  J.,  the  defendants 
admitted  that  they  had  erected  and  maintained  a  bridge  across  the 
Acushnet  River ;  that  the  bridge  was  so  far  an  obstruction  to  the  navi- 
gation of  the  river,  that  its  erection  and  maintenance  could  only  be 
justified  under  an  act  of  the  legislature  ;  and  that,  without  such  justifi- 
cation, they  would  be  subject  to  a  prosecution  of  some  kind.  But  they 
contended  that  they  were  not  liable  to  indictment. 

The  defendants  gave  in  evidence  their  act  of  incorporation  (St.  1796, 
c.  19),  under  which  they  acted  in  maintaining  their  bridge. 

The  presiding  judge,  "being  of  opinion  that  the  several  questions 
of  law  are  so  important  or  doubtful  as  to  require  the  opinion  of  the 
Supreme  Judicial  Court,"  directed  a  verdict  of  guilty,  and  reported 
the  case,  with  the  consent  of  the  defendants,  for  the  consideration  of 
this  court. 

BiGELOw,  J.  The  indictment  in  the  present  case  is  for  a  nuisance. 
The  defendants  contend  that  it  cannot  be  maintained  against  them,  on 
the  ground  that  a  corporation,  although  liable  to  indictment  for  non- 
feasance, or  an  omission  to  perform  a  legal  duty  or  obligation,  are  not 

'  See  ace.  Rex  v.  Owen,  4  C.  &  P.  236;  Angelo  v.  People,  96  111.  209;  State  v.  Fow- 
ler, 52  la.  103;   State  v.  Adams,  76  Mo.  355;  State  v.  Doheity,  2  Overton,  80. 

Criminal  capacity  in  a  child  between  seven  and  fourteen  may  be  jtroved  by  evidence, 
or  may  be  inferred  from  the  circumstances  of  the  act.  4  Bl.  Com.  23;  Godfrey  i-.  State, 
31  Ala.  323;  State  v.  Toney,  15  S.  C.  409. 

As  to  proof  of  criminal  capacity,  see  Willet  v.  Com.,  13  Bu.sh,  230;  Carr  i-.  State, 
24  Tex.  App.  562. 

As  to  the  conclusive  presumption  that  a  boy  under  fourteen  cannot  be  guilty  of  rape, 
except  as  principal  in  the  second  degree,  see  Rex  v.  Eldei-shaw,  3  C  &  P.  396;  Com.  v. 
Green,  2  Pick.  380  (supra);  Law  v.  Com.,  75  Va.  885.  —  Ed. 

2  Part  of  the  case  br)s  been  omitted. 


SECT.  IV.]        COMMONWEALTH   V.   NEW   BEDFORD   BRIDGE.  481 

amenable  in  this  form  of  prosecution  for  a  misfeasance,  or  the  doing 
of  any  act  unlawful  in  itself  and  injurious  to  the  rights  of  others. 
There  are  dicta  in  some  of  the  early  cases  which  sanction  this  broad 
doctrine,  and  it  has  been  thence  copied  into  text  writers,  and  adopted 
to  its  full  extent  in  a  few  modern  decisions.  But  if  it  ever  had  any 
foundation,  it  had  its  origin  at  a  time  when  corporations  were  few  in 
number,  and  limited  in  their  powers,  and  in  the  purposes  for  which 
they  were  created.  Experience  has  shown  the  necessit}'  of  essentially 
modifying  it ;  and  the  tendency  of  the  more  recent  cases  in  courts  of 
the  highest  authority  has  been  to  extend  the  application  of  all  legal 
remedies  to  corporations,  and  assimilate  them,  as  far  as  possible,  iu  their 
legal  duties  and  responsibilities,  to  individuals.  To  a  certain  extent, 
the  rule  contended  for  is  founded  in  good  sense  and  sound  principle. 
Corporations  cannot  be  indicted  for  offences  which  derive  their  crimi- 
nality from  evil  intention,  or  which  consist  in  a  violation  of  those  social 
duties  which  appertain  to  men  and  subjects.  They  cannot  be  guilty 
of  treason  or  felony,  of  perjury  or  offences  against  the  person.  But 
beyond  this,  there  is  no  good  reason  for  their  exemption  from  the  con- 
sequences of  unlawful  and  wrongful  acts  committed  by  their  agents  in 
pursuance  of  authority  derived  from  them.  Such  a  rule  would,  in 
many  cases,  preclude  all  adequate  remedy,  and  render  reparation  for 
an  injury,  committed  by  a  corporation,  impossible  ;  because  it  would 
leave  the  only  means  of  redress  to  be  sought  against  irresponsible  ser- 
vants, instead  of  against  those  who  truly  committed  the  wrongful  act 
by  commanding  it  to  be  done.  There  is  no  principle  of  law  which 
would  thus  furnish  immunity  to  a  corporation.  If  they  commit  a  tres- 
pass on  private  property,  or  obstruct  a  way  to  the  special  injury  and 
damage  of  an  individual,  no  one  can  doubt  their  liability  therefor.  In 
like  manner,  and  for  the  same  reason,  if  they  do  similar  acts  to  the 
inconvenience  and  annoj'ance  of  the  public,  they  are  responsible  in 
the  form  and  mode  appropriate  to  the  prosecution  and  punishment  of 
such  offences.  Angell  &  Ames  on  Corp.  ss.  394-396  ;  Maund  v.  Mon- 
mouthshire Canal,  4  M.  &  G.  452,  and  5  Scott  N.  R.  457  ;  The  Queen 
V.  Birmingham  &  Gloucester  Railway,  3  Q.  B.  223  ;  The  Queen  v. 
Great  North  of  England  Railway,  9  Q.  B.  315,  and  2  Cox  C.  C.  70; 
Eastern  Counties  Railway  v.  Broom,  6  Ex.  314  ;  The  State  v.  Morris 
&  Essex  Railroad,  23  N.  J.  (3  Zab.)  360.  If,  therefore,  the  defend- 
ants have  been  guilty  of  a  luiisance,  by  obstructing  unlawfully  a  navi- 
gable stream,  an  indictment  may  well  be  maintained  against  them.  It 
may  be  added  that  the  distinction  between  a  non-feasance  and  a  mis- 
feasance is  often  one  more  of  form  than  of  substance.  There  are  cases 
where  it  would  be  difficult  to  say  whether  the  offence  consisted  in  the 
doing  of  an  unlawful  act,  or  in  the  doing  of  a  lawful  act  in  an  improper 
manner.  In  the  case  at  bar,  it  would  be  no  great  refinement  to  say 
that  the  defendants  are  indicted  for  not  constructing  their  draws  in  a 
suitable  manner,  and  thereby  obstructing  navigation,  which  would  be 
a  non-feasance,  and  not  for  unlawfully  placing  obstructions  in  the 

31 


482  levett's  case.  [chap,  vil 

river,  which  would  be  a  misfeasance.  The  difficulty  in  distinguishing 
the  character  of  these  offences  strongly  illustrates  the  absurdity  of  the 
doctrine  that  a  corporation  are  indictable  for  a  non-feasance,  but  not 
for  a  misfeasance.     See  9  Q.  B.  325.^ 


SECTION  V. 

Ignorance  or  Mistake. 

1  Hale  P.  C.  42.  Ignorance  of  the  municipal  law  of  the  kingdom, 
or  of  the  penalty  thereby  inflicted  upon  offenders,  doth  not  excuse  any 
that  is  of  the  age  of  discretion  and  cornpos  mentis  from  the  penalty  of 
the  breach  of  it ;  because  every  person  of  the  age  of  discretion  and 
compos  mentis  is  bound  to  know  the  law,  and  presumed  so  to  do; 
Ignorantia  eorum  guce  quis  scire  tenetur  nan  excusat. 

But  in  some  cases  ignorantia  facti  doth,  excuse,  for  such  an  igno- 
rance many  times  makes  the  act  itself  morally  involuntary ;  and  in- 
deed many  of  the  cases  of  misfortune  and  casualty  mentioned  in  the 
former  chapter  are  instances  that  fall  in  with  this  of  ignorance  :  I  shall 
add  but  one  or  two  more. 

It  is  known  in  war  that  it  is  the  greatest  offence  for  a  soldier  to  kill, 
or  so  much  as  to  assault  his  general ;  suppose,  then,  the  inferior  officer 
sets  his  watch,  or  sentinels,  and  the  general,  to  try  the  vigilance  or 
courage  of  his  sentinels,  comes  upon  them  in  the  night  in  the  posture 
of  an  enemy  (as  some  commanders  have  too  rashlj'  done),  the  sentinel 
strikes,  or  shoots  him,  taking  him  to  be  an  enemy  ;  his  ignorance  of 
the  person  excuseth  his  offence.** 


LEVETT'S   CASE. 

Newgate  Sessions.     1638. 

[Reported  Croke  Car.  538.] 

Jones  said  that  it  was  resolved  by  the  Chief  Justice  Brampton,  him- 
self, and  the  Recorder  of  London,  at  the  last  sessions  at  Newgate,  in 
the  case  of  one  William  Levett,  who  was  indicted  of  the  homicide  of 
a  woman  called  Frances  Freeman,  where  it  was  found  by  special  ver- 
dict that  the  said  Levett  and  his  wife  being  in  the  night  in  bed  and 

^  As  to  the  criminal  liability  of  members  of  a  corporation  who  take  part  in  its  crimi 
nal  acts,  see  Reg.  v.  Ry.,  9  Q.  B.  315,  327;  People  v.  England,  27  Hun,  139.  —  Ed. 
*  Here  follows  a  statement  of  Levett's  Case,  infra.  —  Ed. 


SECT,  v.]  REX   V.    BAILEY.  483 

asleep,  one  Martha  Stapleton,  their  servant,  having  procured  the  said 
Frances  Freeman  to  help  her  about  house-business,  about  twelve  of 
the  clock  at  night  going  to  the  doors  to  let  out  the  said  Frances  Free- 
man, conceived  she  heard  thieves  at  the  doors  offering  to  break  them 
open ;  whereupon  she,  in  fear,  ran  to  her  master  and  mistress,  and 
informed  them  she  was  in  doubt  that  thieves  were  breaking  open  the 
house-door.  Upon  that  he  arose  suddenly  and  fetched  a  drawn  rapier. 
And  the  said  Martha  Stapleton,  lest  her  master  and  mistress  should 
see  the  said  Frances  Freeman,  hid  her  in  the  buttery.  And  the  said 
Levett  and  Helen  his  wife  coming  down,  he  with  his  sword  searched 
the  entry  for  the  thieves ;  and  she,  the  said  Helen,  espying  in  the 
buttery  the  said  Frances  Freeman,  whom  she  knew  not,  conceiving  she 
had  been  a  thief,  crying  to  her  husband  in  great  fear,  said  to  him, 
"Here  they  be  that  would  undo  us."  Thereupon  the  said  William 
Levett,  not  knowing  the  said  Frances  to  be  there  in  the  buttery,  has- 
tily entered  therein  with  his  drawn  rapier,  and  being  in  the  dark  and 
thrusting  with  his  rapier  before  him,  thrust  the  said  Frances  under 
the  left  breast,  giving  to  her  a  mortal  wound,  whereof  she  instantly 
died ;  and  whether  it  were  manslaughter,  they  prayed  the  discretion  of 
the  court.  And  it  was  resolved  that  it  was  not ;  for  he  did  it  igno- 
rantly  without  intention  of  hurt  to  the  said  Frances  ;  and  it  was  there 
so  resolved.* 


REX  V.   BAILEY. 
Crown  Case  Reserved.     1800. 

[Reported  Russell  Sf  Ryan,  \.\ 

The  prisoner  was  tried  before  Lord  Eldon,  at  the  Admiralty  Ses- 
sions, December,  1799,  on  an  indictment  for  wilfully  and  maliciously 
shooting  at  Henry  Truscott.^ 

It  was  Insisted  that  the  prisoner  could  not  be  found  guilty  of  the 
offence  with  which  he  was  charged,  because  the  Act  of  the  39  Geo.  III. 
c.  37,  upon  which  (together  with  the  statute  relating  to  maliciously 
shooting,  9  Geo.  I.  c.  22,  "  Black  Act")  the  prisoner  was  indicted  at 
this  Admiralty  Sessions,  and  which  act  of  the  39  Geo.  III.  is  entitled 
*'  An  act  for  amending  certain  defects  in  the,  law  respecting  offences 
committed  on  the  high  seas,"  only  received  the  royal  assent  on  the 
10th  of  May,  1799,  and  the  fact  charged  in  the  indictment  happened 
on  the  27th  of  June,  in  the  same  year,  when  the  prisoner  could  not 
know  that  any  such  act  existed  (his  ship,  the  "  Langley,"  being  at 
that  time  upon  the  coast  of  Africa.) 

Lord  Eldon  told  the  jury  that  he  was  of  opinion  that  he  was,  in 

1  See  Regina  v.  Lynch,  1  Cox  C.  C.  361 ;  McGehee  v.  State,  62  Miss.  772.  —  Ed. 
'  Part  of  the  case  is  omitted. 


484 


KEX   V.    HALL. 


[chip.  VII. 


Strict  law,  guilty  within  the  statutes,  taken  together,  if  the  facts  laid 
were  proved,  though  he  could  not  then  know  that  the  act  of  the  39 
Geo.  III.  c.  37  had  passed  ;  and  that  his  ignorance  of  that  fact  could  in 
no  otherwise  affect  the  case  than  that  it  might  be  the  means  of  recom- 
mending him  to  a  merciful  consideration  elsewhere  should  he  be  found 

^"on'the  first  day  of  Hilary  term,  1800,  all  the  Judges  (except  Mr. 
Justice  Buller)  met  at  Lord  Kexyon's  chambers,  and  were  of  opinion 
that  it  wouid  be  proper  to  apply  for  a  pardon,  on  the  ground  that  the 
fact  having  been  committed  so  short  a  time  after  the  Act  39  Geo.  III. 
c.  37  was  passed,  that  the  prisoner  could  not  have  known  of  it.^ 


\\ 


EEX  V.   HALL. 

Gloucester  Assizes.     1828. 

\_Reported  3  Carrington  Sf  Payne,  409.] 

Indictment  for  robbing  John  Green,  a  gamekeeper  of  Lord  Ducie, 
of  three  hare  wires  and  a  pheasant.  It  appeared  that  the  prisoner  had 
set  three  wires  in  a  field  belonging  to  Lord  Ducie,  in  one  of  which  this 
pheasant  was  caught,  and  that  Green,  the  gamekeeper,  seeing  this, 
took  up  the  wires  and  pheasant  and  put  them  into  his  pocket ;  and  it 
further  appeared  that  the  prisoner  soon  after  this  came  up  and  said, 
"  Have  you  got  my  wires  ?  "  The  gamekeeper  replied  that  he  had  and 
a  pheasant  that  was  caught  in  one  of  them.  The  prisoner  then  asked 
the  gamekeeper  to  give  the  pheasant  and  wires  up  to  him,  which  the 
gamekeeper  refused ;  whereupon  the  prisoner  lifted  up  a  large  stick 
and  threatened  to  beat  the  gamekeeper's  brains  out  if  he  did  not  give 
them  up.     The  gamekeeper,  fearing  violence,  did  so. 

Maclean,,  for  the  prosecution,  contended  that  by  law  the  prisoner 
could  have  no  property  in  either  the  wires  or  the  pheasant,  and  as  the 
gamekeeper  had  seized  them  for  the  use  of  the  lord  of  the  manor, 
under  the  statute  5  Anne  c.  14,  s.  4,  it  was  a  robbery  to  take  them  from 
him  by  violence. 

Vaughan,  B.  I  shall  leave  it  to  the  jury  to  say  whether  the  prisoner 
acted  on  an  impression  that  the  wires  and  pheasant  were  his  property; 
for  however  he  might  be  liable  to  penalties  for  having  them  In  his 
possession,  yet  if  the  jury  think  that  he  took  them  under  a  bona  fide 

1  "Although  proclamation  he  not  made  in  the  county,  every  one  is  bound  to  take 
notice  of  that  which  is  done  in  parliament ;  for  as  soon  as  the  parliament  hath  con- 
cluded anything,  the  law  intends  lAiat  every  person  hath  notice  thereof,  for  the  parlia- 
ment represents  the  body  of  the  whole  realm  ;  and  therefore  it  is  not  requisite  that 
any  proclamation  be  made,  seeing  the  statute  took  effect  before."  —  Thorpe,  C.  J.,  in 
Y.  B.  39  Edw.  III.  7  (translation  of  Cok«,  4  Inst.  26).     See  Brig  Ann,  1  Gall.  62.  —  Ed. 


SECT,  v.]  REX  V.    ESOP.  485 

impression  that  he  was  only  getting  back  the  possession  of  his  own 
property,  there  is  no  animus  /araadi,  and  I  am  of  opinion  that  the 
prosecution  must  fail.  Verdict,  Not  guilty.^ 


^^1 
REX  V.   ESOP. 
Central  Criminal  Court.     1836. 

[Reported  7  Carrington  ^-  Payne,  456.] 

The  prisoner  was  indicted  for  an  unnatural  offence,  committed  on 
board  of  an  East  India  ship,  lying  at  St.  Katherine's  Docks.  It 
appeared  that  he  was  a  native  of  Bagdad. 

Chambers,  for  the  prisoner.  In  the  country  from  which  the  priso- 
ner comes  it  is  not  considered  an  offence  ;  and  a  person  who  comes 
into  this  country  and  does,  an  act,  believing  that  it  is  a  perfectly  inno- 
cent one,  cannot  be  convicted  according  to  the  law  of  England.  A 
party  must  know  that  what  he  does  is  a  crime.  This  is  the  principle 
upon  which  infants,  idiots,  and  lunatics  are  held  not  to  be  answerable. 
If  a  person  is  unconscious  tliat  he  is  doing  a  wrong  act,  or  believes 
that  it  is  a  right  or  innocent  act,  he  is  exonerated.  Where  one  man 
kills  another  under  the  persuasion  that  he  is  doing  a  good  action,  he  is 
not  liable  to  punishment,  for  he  knows  not  the  distinction  between 
right  and  wrong,  and  upon  that  point  is  insane. 

BosANQUET,  J.  I  am  clearly  of  opinion  that  this  is  no  legal  de- 
fence. 

Vaughan,  J.  Where  is  the  evidence  that  it  is  not  a  crime  in  the 
prisoner's  own  country?  But  if  it  is  not  a  crime  there,  that  does 
not  amount  to  a  defence  here.  Numbers  have  been  most  improperly 
executed  if  it  is  a  defence. 

The  prisoner,  after  the  examination  of  some  witnesses  on  his  behalf, 
from  whose  statements  it  appeared  that  the  witnesses  for  the  prosecu- 
tion acted  under  the  influence  of  spite  and  ill  will,  was  found 

JS^t  guilty. 'i 

^  "  Ignorance  of  the  law  cannot  excuse  any  person;  but  at  the  same  time,  when  the 
question  is  with  what  intent  a  person  takes,  we  cannot  help  looking  into  their  state  of 
mind,  as  if  a  person  take  what  he  believes  to  be  his  own,  it  is  impossible  to  say  that  he 
is  guilty  of  felony."  —  Coleridge,  J.,  in  Reg.  v.  Reed,  C.  &  M.  306.  See  Reg.  v.  Hem- 
mings,  4  F.  k  F.  50;  Com.  v.  Stebbins,  8  Gray,  492.  — Ed. 

^  See  ace.  Barronet's  Case,  1  E.  &  B.  1.  —  Ed. 


486 


ANONYMOUS.  [CHAP.  VII., 


ANONYMOUS. 

Western   Circuit.    17  — . 

[Reported  Foster  C.  L.  (3d  ed.)  439.] 

A  WIDOW  WOMAN  was  indicted  on  the  statute  9  and  10  W.  III.  c.  41, 
for  having  in  her  custody  divers  pieces  of  canvas  marked  with  his 
Majesty's  mark  in  the  manner  described  in  the  Act,  she  not  being  a 
person  employed  by  the  commissioners  of  the  navy  to  make  the  same 
for  his  Majesty's  use. 

The  canvas  was  produced  at  the  trial  marked  as  charged  in  the 
indictment,  and  was  proved  to  the  satisfaction  of  the  court  and  jury 
to  be  of  that  sort  which  is  commonly  made  for  the  use  of  the  navy 
and  to  have  been  found  in  the  defendant's  custod}'. 

The  defendant  did  not  attempt  to  show  that  she  was  within  the 
exception  of  the  Act,  as  being  a  person  emploN'ed  to  make  canvas  for 
the  use  of  the  navy ;  nor  did  she  offer  to  produce  any  certificate  from 
any  officer  of  the  Crown  touching  the  occasion  and  reason  of  such 
canvas  coming  into  her  possession. 

Her  defence  was  that  when  there  happened  to  be  in  his  Majesty's 
stores  a  considerable  quantity  of  old  sails,  no  longer  tit  for  that  use, 
it  had  been  customary  for  the  persons  intrusted  with  the  stores  to 
make  a  public  sale  of  them  in  lots  larger  or  smaller  as  best  suited  the 
purpose  of  the  buyers ;  and  that  the  canvas  produced  in  evidence, 
which  happened  to  have  been  made  up  long  since,  some  for  table-linen 
and  some  for  sheeting,  had  been  in  common  use  in  the  defendant's 
famil}'  a  considerable  time  before  her  husband's  death,  and  upon  his 
death  came  to  the  defendant,  and  had  been  used  in  the  same  public 
manner  by  her  to  the  time  of  the  prosecution.  This  was  proved  by 
some  of  the  family,  and  b}'  the  woman  who  had  frequently  washed  the 
linen. 

This  sort  of  evidence  was  strongly  opposed  by  the  counsel  for  the 
Crown,  who  insisted  that,  as  the  Act  allows  of  but  one  excuse,  the 
defendant,  unless  she  can  avail  herself  of  that,  cannot  resort  to  any 
other ;  for  if  the  canvas  was  realh'  bought  of  the  commissioners  or  of 
persons  acting  under  them,  which  is  the  only  excuse  pointed  out  by 
the  statute,  why  was  no  certificate  of  that  matter  taken  at  the  time 
of  the  purchase,  since  the  fourth  section  of  the  Act  admits  of  that 
excuse,  and  the  second  section  admits  of  no  other  ? 


SECT,  v.]  REGINA   V.   TINKLER.  487 

But  the  judge  [Foster,  J.]  was  of  opinion  that,  though  the  clause 
of  the  statute  wliich  directs  the  sale  of  these  things  hath  not  pointed 
out  an}-  other  way  for  indemnifying  the  buyer  than  the  certificate  ;  and 
though  the  second  section  seems  to  exclude  any  other  excuse  for  those 
in  whose  custod}'  they  shall  be  found ;  yet  still  the  circumstances  at- 
tending every  case  which  ma}-  seem  to  fall  within  the  Act  ought  to 
be  taken  into  consideration  ;  otherwise  a  law  calculated  for  wise  pur- 
poses ma}^  by  too  rigid  a  construction  of  it,  be  made  a  handmaid  to 
oppression.  There  is  no  room  to  say  that  this  canvas  came  into  the 
possession  of  the  defendant  by  any  act  of  her  own.  It  was  brought 
into  famil}'  use  in  the  lifetime  of  her  husband,  and  it  continued  so  to 
the  time  of  his  death;  and  by. act  of  law  it  came  to  her.  Things  of 
this  kind  have  been  frequentl}'  exposed  to  public  sale ;  and  though  the 
Act  points  out  an  expedient  for  the  indemnit}'  of  the  buyers,  yet  prob- 
ably few  buyers,  especially  where  small  quantities  have  been  purchased 
at  one  sale,  have  used  the  caution  suggested  to  them  by  the  Act.  And 
if  the  defendant's  husband  reall}-  bought  this  linen  at  a  public  sale,  but 
neglected  to  take  a  certificate,  or  did  not  preserve  it,  it  would  be  con- 
trary to  natural  justice,  after  this  length  of  time,  to  punish  her  for  his 
neglect.  He  therefore  thought  the  evidence  given  by  the  defendant 
proper  to  be  left  to  the  jury,  and  directed  them  that  if,  upon  the  whole 
of  the  evidence,  the}'  were  of  opinion  that  the  defendant  came  to  the 
possession  of  the  linen  without  any  fraud  or  misbehavior  on  her  part, 
they  should  acquit  her ;  and  she  was  acquitted. 


REGINA  V.   TINKLER. 
Norfolk  Circuit.     1859. 

[Reported  1  Foster  ^  Finlason,  513.] 

The  prisoner  was  indicted,  under  the  9  Geo.  IV.,  c.  31,  s.  20,  for 
unlawfuU}'  taking  one  Sarah  Thompson,  she  being  then  unmarried,  and 
under  the  age  of  sixteen  years,  out  of  the  possession  and  against  the 
will  of  Jane  Barnes,  her  lawful  guardian. 

It  appeared  that  the  prisoner,  who  was  a  widower,  had  married  the 
elder  sister  of  Sarah  Thompson,  and  up  to  the  time  of  his  wife's  death, 
Sarah  Thompson,  who  was  an  orphan,  had  lived  in  the  prisoner's 
house.  On  that  occasion,  Mary  Johnson,  another  married  sister  of 
Sarah  Thompson,  caused  her  to  be  placed  under  the  care  of  Jane 
Barnes. 

No  improper  motive  was  alleged  against  the  prisoner,  he  having 
asserted,  as  his  reason  for  taking  the  child  away,  that  he  had  promised 
her  father,  on  his  deathbed,  to  take  care  of  her. 

The  Chief  Justice  [Cockburn]  told  the  jury  that  it  was  clear  the 
prisoner  had  no  right  to  act  as  he  had  done  in  taking  the  child  out  of 


488  REGINA   V.   TOWSE.  [CIIAP.  VII. 

Mrs.  Barnes's  custody.  But  inasmuch  as  no  improper  motive  was 
suggested  on  the  part  of  the  prosecution,  it  might  very  well  be  con- 
cluded that  the  prisoner  wished  the  child  to  live  with  him,  and  that 
he  meant  to  discharge  the  promise  which  he  alleged  he  had  made  to 
her  father,  and  that  he  did  not  suppose  he  was  breaking  the  law  when 
he  took  the  child  away.  This  being  a  criminal  prosecution,  if  the  jury 
should  take  this  view  of  the  case,  and  be  of  opinion  that  the  prisoner 
honestly  believed  that  he  had  a  right  to  the  custody  of  the  child,  then 
although  the  prisoner  was  not  legally  justified,  he  would  be  entitled  to 
an  acquittal  upon  this  charge.^ 

The  jury  found  the  prisoner  not  guilty. 


REGINA  V.   TOWSE. 
Exeter  Assizes.     1879. 

{Reported  14  Cox  C.  C.  327.] 

Prisoner  was  indicted  for  having  set  fire  to  some  furze  growing  on 
a  common  at  Culmstock.^ 

It  appeared  from  the  evidence  that  persons  living  near  the  common 
had  occasionally  burnt  the  furze  to  improve  the  growth  of  the  grass, 
although  the  existence  of  any  right  to  do  this  was  denied. 

But  the  prisoner  in  this  case  denied  having  set  the  furze  on  fire 
at  all. 

£ullen,  for  the  defence,  contended  that  even  if  it  were  proved  that 
the  prisoner  set  the  furze  on  fire  she  could  not  be  found  guilty  if  it 
appeared  that  she  bona  fide  believed  she  had  a  right  to  do  so,  whether 
the  right  were  a  good  one  or  not. 

Lopes,  J.  If  she  set  fire  to  the  furze  thinking  she  had  a  right  to  do 
so  that  would  not  be  a  criminal  offence.  I  shall  leave  two  questions  to 
the  jury.  I.  Did  she  set  fire  to  the  furze?  2.  If  yes,  did  she  do  it 
wilfully  and  maliciously  ? 

1  "  Whosoever  shall  nn1awfii1\v^  and  maliciously  set  fire  to  any  .  .  .  furze  or  fern, 
wheresoever  the  same  may  be  growing,  shauTe'guIlty  of  felony."  24  &  25  Vict.  c.  97, 
s.  16.  —  Eu. 


SECT.  V.J  COMMONWEALTH  V,    THOMPSON.  489 


COMMONWEALTH  v.   THOMPSON. 
Supreme  Judicial  Court  of  Massachusetts.     1863. 

[Reported  6  Allen,  591.] 

Indictment  for  adultery  with  Emeline  B.  Carlton. 

At  the  trial  in  the  Superior  Court,  before  Rockwell,  J.,  it  appeared 
that  in  November,  1861,  the  defendant  was  married  to  said  Emeline, 
and  lived  with  her  as  his  wife  thereafter.  The  defendant  contended 
on  the  evidence  which  was  offered  that  he  then  believed  her  to  be  a 
widow,  and  that  she  had  no  knowledge  that  her  former  husband  was 
alive,  and  had  not  seen  or  heard  from  him  for  eleven  3-ears ;  and  he 
asked  the  court  to  instruct  the  juiy  that  if  he  married  and  cohabited 
with  her  without  any  knowledge  that  she  had  a  husband  living,  and 
believing  that  she  had  no  husband  living,  such  cohabitation  would  not 
amount  to  the  crime  of  adulter}',  even  if  her  husband  was  not  dead. 
The  judge  refused  to  give  these  instructions,  but  instructed  the  jury 
that  if  the}'  were  satisfied  that  the  intercourse  took  place  as  alleged, 
it  would  be  adultery  if  the  former  husband  was  still  living,  although 
the  defendant  had  no  knowledge  or  belief  that  he  was  alive ;  and  he 
excluded  the  evidence  which  was  offered. 

The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged 
exceptions. 

G.  F.  Verry,  for  the  defendant. 

Foster,  Attorney-General,  for  the  Commonwealth. 

Dewey,  J.  The  court  properly  refused  to  rule  that  upon  the  mere 
showing  that  the  defendant  married  the  said  Emeline  B.  Carlton  and 
cohabited  with  her  without  any  knowledge  that  she  had  a  husband 
living,  and  believing  that  she  had  no  husband  living,  the  defendant 
could  not  be  convicted  of  adultery,  although  she  then  had  a  legal  hus- 
band in  full  life. 

The  objection  urged  in  behalf  of  the  defendant,  that  to  make  any 
act  criminal  there  must  be  a  criminal  intent,  will  not  screen  the  guilty 
party  under  such  circumstances.  Commonwealth  v.  Mash,  7  Met. 
474. 

This  would  dispose  of  the  case  but  for  the  facts  which  were  offered 
to  be  proved,  that  the  husband  had  been  absent  from  his  wife  for 
eleven  years  preceding  the  time  when  the  acts  complained  of  took 
place,  and  that  his  wife  had  not  seen  or  heard  of  him  during  that 
period,  and  had  no  knowledge  that  he  was  alive. 

It  is  a  well  settled  rule  of  law  that,  upon  a  person's  leaving  his  home 
for  temporary  purposes  of  business  or  pleasure,  and  not  being  heard 
of  or  known  to  be  living  for  the  term  of  seven  years,  the  presumption 
arises  of  his  death.  2  Stark.  Ev.  (4th  Amer.  ed.)  458.  Loring  v. 
Steineman,  1  Met.  211.  Although  this  is  merely  a  presumption  au- 
thorized by  law,  and  may  be  controlled  by  evidence  showing  that  the 


490 


STATE   V.    GOODENOW. 


[chap.  VII. 


^  w 

^ 

^    V 

V 

^ 

^ 

J 

V 

^ 

> 

fact  was  otherwise,  yet  in  reference  to  acts  of  other  parties,  and  in 
deciding  whether  they  are  criminal,  this  presumption  is  allowed  to 
have  its'  proper  effect.  Thus  in  reference  to  the  criminal  intercourse 
alleged  to  have  taken  place  between  Mrs.  Carlton  and  the  defendant, 
supposing  she  had  been  indicted  for  polygamy,  and  the  fact  had  ap- 
peared of  the  absence  of  her  husband  for  eleven  years,  she  not  knowing 
him  to  be  living  during  that  time,  this  would  constitute  a  legal  defence 
to  the  criminal  charge.  Gen.  Sts.  c.  165,  §  5.  We  think  this  statute, 
though  not  in  terms  applicable  to  an  indictment  for  adultery,  recog- 
nizes a  rule  that  should  operate  as  a  legal  defence  to  the  charge  of 
adultery,  when  the  alleged  criminal  acts  are  the  marrying  and  cohabit- 
ino-  with  a  woman  whose  husband  had  been  absent  more  than  seven 
years,  and  not  known  to  the  defendant  to  have  been  alive  during  that 
period. 

The  proper  instructions  to  the  jur^'  in  a  case  like  the  present  would 
be,  that  if  it  appeared  that  the  husband  had  absented  himself  from 
his  wife,  and  remained  absent  for  the  space  of  seven  years  together, 
a  man  who  should,  under  the  existence  of  such  circumstances,  and 
not  knowing  her  husband  to  have  been  living  within  that  time,  in  good 
faith  and  in  the  belief  that  she  had  no  husband,  intermarry  with  her 
and  cohabit  with  her  as  his  wife,  would  not  by  such  acts  be  criminally 
punishable  for  adultery,  although  it  should  subsequently  appear  that 
the  former  husband  was  then  living. 

Exceptlo7is  sustained} 


STATE  V.   GOODENOW. 
Supreme  Judicial  Court  of  Maine.     1876. 

[Reported  65  Maine,  30.] 

Peters,  J.^  The  respondents  are  jointly'  indicted  for  adulter}',  they 
having  cohabited  as  husband  and  wife  while  the  female  respondent 
was  lawfully  married  to  another  man  who  is  still  alive.  The  only 
question  found  in  the  exceptions  is,  whether  th©  evidence  offered  and 
rejected  should  have  been  received.  This  was,  that  the  lawful  hus- 
band had  married  again,  and  that  the  justice  of  the  peace  who  united 
the  respondents  in  matrimony  advised  them  that,  on  that  account,  thej' 
had  the  right  to  intermarry,  and  that  they  believed  the  statement  to 
be  true,  and  acted  upon  it  in  good  faith.  It  is  urged  for  the  respond- 
ents that  those  facts  would  show  that  they  acted  without  an}'  guilty 
intent.     It  is  undoubtedly  true  that  the  crime  of  adultery  cannot  be 

^  On  a  new  trial  it  appeared  that  Emeline  B.  Carlton  had  herself  left  her  husband, 
of  whom  she  had  not  thereafter  heard  for  eleven  years.  As  the  exception  in  the  stat- 
ute (Gen.  Stats,  c.  165,  §  5)  did  not  cover  the  case,  defendant  was  found  guilty,  and 
the  conviction  upheld.     11  All.  23.  —  Eu. 

*  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


«ECT.  v.]  STATE   V.   GOODENOW.  491 

committed  without  a  criminal  intent.  But  the  intent  may  be  inferred 
from  the  crimiualit}-  of  the  act  itself  Lord  Mansfield  states  the  rule 
thus  :  ' '  Where  an  act,  in  itself  indifferent,  becomes  criminal  if  done 
with  a  particiriar  intent,  there  the  intent  must  be  proved  and  found ; 
but  where  the  act  is  in  itself  unlawful,  the  proof  of  justification  or 
excuse  lies  on  the  defendant ;  and  in  failure  thereof,  the  law  implies 
a  criminal  intent." 

Here  the  accused  have  intentionally  committed  an  act  which  is  in 
itself  unlawful.  In  excuse  for  it,  they  plead  their  ignorance  of  the 
law.  This  cannot  excuse  them.  Ignorance  of  the  law  excuses  no 
one.  Besure,  this  maxim,  like  all  others,  has  its  exceptions.  None 
of  the  exceptions,  however,  can  apply  here.  The  law,  which  the  re- 
spondents are  conclusively'  presumed  to  have  known,  as  applicable  to 
their  case,  is  well  settled  and  free  of  all  obscurity  or  doubt.  It  would 
perhaps  be  more  exact  to  say,  they  are  bound  as  if  they  knew  the 
law.  Late  cases  furnish  some  interesting  discussions  upon  this  sub- 
ject. Cutter  V.  State,  36  New  Jer.  125  ;  United  States  v.  Anthony, 
11  Blatch.  200;  United  States  v.  Taintor,  id.  374;  2  Green's 
Crim.  Law  R.  218,  244,  275,  589  ;  Black  v.  Ward,  27  Mich.  191  ; 
s.  c.  15  Amer.  Law  Reports,  1G2  and  note,  171.  The  rule,  though 
productive  of  hardship  in  particular  cases,  is  a  sound  and  salutary 
maxim  of  the  law.  Then  the  respondents  say  that  they  were  misled 
by  the  advice  of  the  magistrate,  of  whom  they  took  counsel  concerning 
their  marital  relations.  But  the  gross  ignorance  of  the  magistrate 
cannot  excuse  them.  They  were  guilty  of  neghgence  and  fault,  to 
take  his  advice.  They  were  bound  to  know  or  ascertain  the  law  and 
the  facts  for  themselves  at  their  peril.  A  sufficient  criminal  intent  is 
conclusively  presumed  against  them,  in  their  failure  to  do  so.  The 
facts  offered  in  proof  may  mitigate,  but  cannot  excuse,  the  offence 
charged  against  them.  There  is  no  doubt  that  a  person  might  commit 
an  unlawful  act,  through  mistake  or  accident,  and  with  innocent  in- 
tention, where  there  was  no  negligence  or  fault  or  want  of  care  of  any 
kind  on  his  part,  and  be  legally  excused  for  it.  But  this  case  was  far 
from  one  of  that  kind.  Here  it  was  a  criminal  heedlessness  on  the 
part  of  both  of  the  respondents  to  do  what  was  done  by  them.  The 
Massachusetts  cases  cited  by  the  counsel  for  the  state,  go  much  further 
than  the  facts  of  this  case  require  us  to  go  in  the  same  direction,  to 
inculpate  the  respondents.  Besides  those  cases,  see  also  Common- 
wealth V.  Elwell,  2  Met.  190;  Commonwealth  v.  Farren,  9  Allen, 
489;  Commonwealth  v.  Goodman,  97  Mass.,  117;  Commonwealth  v. 
Emmons,  98  Mass.  6.  We  see  no  relief  for  the  respondents  except, 
if  the  facts  warrant  it,  through  executive  interposition. 

Exceptions  overruled  A 

V.  Taiutor,  11  Blatch.  374;  U.  S.  v. 


492 


KEGINA  V.  LESLEY. 


[chap.  Tin. 


^  ^ 


CHAPTER   VIII. 
AFFIRMATIVE   DEFENCE:   JUSTIFICATION. 


■  SECTION   I. 

Puhlio  Authority. 

Foster,  C.  L.  267.  The  execution  of  malefactors  under  sentence  of 
death  for  capital  crimes  hath  been  considered  by  former  writers  as  a 
species  of  homicide  founded  in  necessity.  I  think  it  hath  with  propri- 
ety enough  been  so  considered  ;  for  the  ends  of  government  cannot  be 
answered  without  it.  .  .  .  Where  persons  having  authority  to  arrest  or 
imprison,  using  the  proper  means  for  that  purpose,  are  resisted  in  so 
doing,  and  the  party  making  resistance  is  killed  in  the  struggle,  this 
homicide  is  justifiable.  .  .  .  AVhere  a  felony  is  committed,  and  the 
felon  fleeth  from  justice,  and  a  dangerous  wound  is  given,  it  is  the 
duty  of  every  man  to  use  his  best  endeavors  for  preventing  an  escape  ; 
and  if  in  the  pursuit  the  party  fleeing  is  killed,  tohere  he  cannot  be 
otherwise  overtaken,  this  will  be  deemed  justifiable  homicide  ;  for  the 
pursuit  was  not  barely  warrantable,  it  is  what  the  law  require th  and  will 
*  I  punish  the  wilful  neglect  of. 


i 


REGINA  V.   LESLEY. 
Crown  Case  Reserved.     1860. 

^  [Reported  Bell,  220 ;  8  Cox  C.  C.  269.] 

Erle,  C.  J.-^  In  this  case  the  question  is  whether  a  conviction  for 
false  imprisonment  can  be  sustained  upon  the  following  facts. 

The  prosecutor  and  others,  being  in  Chili,  and  subjects  of  that  state, 
were  banished  by  the  government  from  Chili  to  England. 

1  The  opinion  only  is  given.  In  addition  to  the  facts  therein  stated,  the  following 
may  be  useful :  — - 

It  appeared  by  the  evidence  for  the  prosecution  that  the  prisoners  requested  the 
defendant  to  take  them  to  Peru,  which  was  near,  offering  to  pay  him  wliat  the  Govern- 
ment of  Chili  paid  him,  but  that  the  defendant  refused,  on  the  ground  that  his  contract 
required  him  to  carry  the  prisoners  to  Liverpool.  They  made  no  other  request  to  be 
put  ashore.  The  vessel  touched  at  the  Azores,  and  the  defendant  made  holes  in  the 
boats  to  prevent  the  escape  of  the  prisoners. 

Watson,  B.  ,  who  tried  the  case,  directed  a  verdict  of  guilty,  and  reported  the  case 
to  the  Court  for  Crown  Cases  Reserved.  —  Ed. 


SECT.  I.] 


REGINA   V.   LESLEY. 


493 


\ 


^C) 


IJ 


The  defendant,  being  master  of  an  English  merchant  vessel  lying  in 
the  territorial  waters  of  Chili,  near  Valparaiso,  contracted  with  that 
government  to  take  the  prosecutor  and  his  companions  from  Valparaiso 
to  Liverpool,  and  they  were  accordingly  brought  on  board  the  defen- 
dant's vessel  by  the  officers  of  the  government  and  carried  to  Liverpool 
by  the  defendant  under  his  contract.  Then,  can  the  conviction  be 
sustained  for  that  which  was  done  within  the  Chilian  waters?  "We 
answer  no. 

We  assume  that  in  Chili  the  act  of  the  government  towards  its  sub- 
jects was  lawful ;  and  although  an  English  ship  in  some  respects  carries 
with  her  the  laws  of  her  country  in  the  territorial  waters  of  a  foreign 
state,  yet  in  other  respects  she  is  subject  to  the  laws  of  that  state  as  to 
acts  done  to  the  subjects  thereof. 

We  assume  that  the  government  could  justify  all  that  it  did  within 
its  own  territory,  and  we  think  it  follows  that  the  defendant  can  justify 
all  that  he  did  there  as  agent  for  the  government  and  under  its  author- 
ity. In  Dobree  v.  Napier,  2  Bing.  N.  C.  781,  the  defendant,  on  behalf 
of  the  Queen  of  Portugal,  seized  the  plaintiff's  vessel  for  violating  a 
blockade  of  a  Portuguese  port  in  time  of  war.  The  plaintiff  brought 
trespass  ;  and  judgment  was  for  the  defendant,  because  the  Queen  of 
Portugal,  in  her  own  territory,  had  a  right  to  seize  the  vessel  and  to 
employ  whom  she  would  to  make  the  seizure  ;  and  therefore  the  defend- 
ant, though  an  Englishman  seizing  an  English  vessel,  could  justify  the 
act  under  the  employment  of  the  Queen. 

We  think  that  the  acts  of  the  defendant  in  Chili  become  lawful  on 
the  same  principle,  and  therefore  no  ground  for  the  conviction. 

The  further  question  remains.  Can  the  conviction  be  sustained  for 
that  which  was  done  out  of  the  Chilian  territory?    And  we  think  it  can. 

It  is  clear  that  an  English  ship  on  the  high  sea,  out  of  any  foreign 
territory,  is  subject  to  the  laws  of  England  ;  and  persons,  whether  for- 
eign or  English,  on  board  such  ship,  are  as  much  amenable  to  English 
law  as  they  would  be  on  English  soil.  In  Regina  v.  Sattler,  1  D.  &  B. 
C.  C.  525,  this  principle  was  acted  on,  so  as  to  make  the  prisoner,  a  for- 
eigner, responsible  for  murder  on  board  an  English  ship  at  sea.  The 
same  principle  has  been  laid  down  by  foreign  writers  on  international 
law,  among  which  it  is  enough  to  cite  Ortolan,  "  Sur  la  Diplomatie  de 
la  Mer,"  liv.  2.  cap.  13. 

The  Merchant  Shipping  Act,  17  &  18  Vict.  c.  104,  s.  267,  makes  the 
master  and  seamen  of  a  British  ship  responsible  for  all  offences  against 
property  or  person  committed  on  the  sea  out  of  her  Majesty's  dominions 
as  if  they  had  been  committed  within  the  jurisdiction  of  the  Admiralty 
of  England. 

Such  being  the  law,  if  the  act  of  the  defendant  amounted  to  a  false 
imprisonment  he  was  liable  to  be  convicted.  Now,  as  the  contract  of 
the  defendant  was  to  receive  the  prosecutor  and  the  others  as  prisoners 
on  board  his  ship,  and  to  take  them,  without  their  consent,  over  the  sea 
to  England,  although  he  was  justified  in  first  receiving  them  in  Chili, 


94 


STATE  V.  MAYOK  &  ALDERMEN  OF  KNOXVILLE.  [CHAP.VIII. 


oet  that  justification  ceased  when  he  passed  the  line  of  Chihan  juris- 
diction and  after  that  it  was  a  wrong  which  was  intentionally  planned 
and  executed  in  pursuance  of  the  contract,  amounting  in  law  to  a  false 

imprisonment.  ,  .    ,      ^  ,  ,.     ^.      i  i. 

It  may  be  that  transportation  to  England  is  lawful  by  the  law  of 
Chili,  and  that  a  Chilian  ship  might  so  lawfully  transport  Chilian  sub- 
jects ;  but  for  an  English  ship  the  laws  of  Chili,  out  of  the  state,  are 
powerless,  and  the  lawfulness  of  the  acts  must  be  tried  by  EngUsh  law. 

For  these  reasons,  to  the  extent  above  mentioned,  the  conviction  is 
affirmed.  Conviction  confirmed  accordingly?' 


■% 


STATE  V.   MAYOR   AND   ALDERMEN   OF   KNOXVILLE. 
Supreme  Court  of  Tennessee.     1883. 

[Reported  12  Lea,  146.] 

Freeman,  J.,  delivered  the  opinion  of  the  court.^ 

It  appears  from  this  record  that  in  the  latter  part  of  the  year  1882, 
and  first  of  1883,  the  small-pox,  as  an  epidemic,  prevailed  to  a  con- 
siderable extent.  The  city  of  Knoxville,  as  well  as  the  county,  thought 
it  their  duty,  through  their  authorized  agencies,  to  take  active  measures 
to  relieve  as  well  as  prevent  the  spread  of  the  disease  both  in  the  city 
and  the  surrounding  country.  To  this  end  a  small-pox  hospital  was 
established  at  the  fair-grounds,  about  two  miles  from  the  city,  with  suita- 
ble buildings  for  receiving  infected  patients,  and  two  physicians,  Drs. 
Hudgins  and  Shaw,  employed,  the  one  by  the  city,  the  other  by  the 
coun°y,  to  attend  patients  suffering  with  the  disease.  Among  the  pre- 
cautionary measures  taken  to  prevent  the  spread  of  the  plague,  the 
clothing,  beds,  and  bedsteads  used  by  persons  who  had  the  disease,  and 
either  recovered  or  died,  were  directed  to  be  burnt,  no  doubt  under  the 
direction  of  the  attending  physicians.  This,  we  take  it,  was  done  regu- 
larly and  frequently  for  some  months,  as  often  as  occasion  required. 
The  fair-ground's  property  consisted  of  between  sixty  and  bixty-five 
acres  of  land,  the  building  being  within  this  property,  and  the  infected 
articles  burnt  on  these  grounds,  probably  in  pits  dug  for  the  purpose. 
The  burning  seems  to  have  been  some  four  hundred  yards  from  the 
nearest  houses,  but  there  appear  to  have  been  numerous  dwellings 
occupied  about  that  distance,  and  farther  off,  but  still  liable,  more  or 
less  to  be  affected  by  the  smoke  and  the  scent  from  the  burning  cloth- 
ing, etc.     That  this  at  times  was  more  or  less  offensive,  is  probable,  if 

1  For  the  extent  to  which  the  command  of  a  military  or  naval  superior  officer  will 
justify  a  criminal  act,  see  Reg.  v.  Thomas,  1  Russ.  Crimes,  731 ;  Reg.  v.  Hutchinson, 
0  Cox  C.  C.  556;  U.  S.  v.  Clark,  31  F.  R.  710,  iii/ra.  —  Ev. 

■''  Part  of  the  opinion  is  omitted. 


SECT.  I.J  STATE  V.  MAYOR  &  ALDERMEN  OF   KNOXVILLE.  495 

not  certain.  For  a  nuisance,  the  result  of  this  burning  and  the  unpleas- 
ant etfeets  of  the  smoke  thus  generated  and  disseminated,  the  defendants 
are  indicted. 

The  jury  have  found  the  defendants  guilty,  and  on  the  facts,  that  is 
of  the  existence  of  the  smoke,  and  of  its  rendering  the  occupation  of 
the  houses  of  persons  living  hard  by  uncomfortable,  and  the  air  less 
pure  temporarily  than  otherwise  would  have  been  the  case  from  the 
nature  of  their  location,  there  is  no  ground  on  which  this  court  could 
reverse  the  finding  of  facts  for  want  of  testimonj-  to  sustain  it. 

The  question  is,  whether  this  finding  was  under  a  correct  statement 
pf  the  law  by  the  court  below,  and  whether  there  was  a  sufficient  Jtisti- 
jication  and  authority  for  what  was  done ;  whether  his  Honor  gave 
defendants  the  benefit  of  the  rules  of  law  tending  to  show  such  justifi- 
cation and  authority  for  their  acts,  which  are  not  of  themselves  denied 
or  seriously  controverted. 

The  proof  very  definitely  tended  to  show  that  burning  the  articles 
mentioned  was  the  best  means  known  of  preventing  the  spread  of  infec- 
tion, if  not  the  only  certain  means  of  doing  so,  that  it  was  the  uniform 
practice  in  hospitals  where  such  diseases  were  being  treated,  and  recog- 
nized as  the  accredited  mode  recommended  and  endorsed  by  the  best 
lights  of  the  medical  profession. 

If  this  be  so,  then  the  simple  question  is,  whether  parties  using  such  -y 
means  so  accredited,  in  good  faith,  shall  be  held  criminally  liable  if  they    ^ 
should  produce  temporary  inconvenience  to  other  parties  near  by  ;  for 
this  is  the  substance  of  the  request  refused  by  his  Honor. 

The  loss  to  the  individuals  was  only  a  temporary  one,  by  having  the 
air  for  a  time  impregnated  with  smoke,  oflfensive  though  it  was  ;  yet  if 
this  was  done  in  order  to,  and  did  reasonably  tend  to,  prevent  the 
spread  of  a  loathsome  and  dangerous  disease,  by  which  the  lives  of 
from  twenty-five  to  fifty  per  cent  of  persons  attacked  are  liable  to  die,  as 
one  physician  swears  in  this  case,  then  it  is  too  clear  to  doubt  that  the 
interest  of  the  life  of  many  cannot  be  permitted  to  be  perilled  that  others 
may  enjoy  the  air  untainted  by  smoke  from  clothing  infected  by  the 
disease  being  burned  at  a  reasonably  safe  distance  from  their  dwellings. 
If  you  may  rightfully  destroy  the  house  in  which  a  man  dwells  in  order 
to  prevent  the  spread  of  a  fire  or  the  ravages  of  a  pestilence,  it  follows 
you  may  much  more  destroy  for  a  time  the  salubrity  of  the  air,  provided 
it  shall  tend  reasonably  to  the  result  demanded  by  the  public  interest. 
We  do  not  deem  it  necessary  to  enlarge  on  such  a  proposition. 
The  rule  applicable  to  such  a  case  is  that,  if  the  act  was  done  by 
public  authority  or  sanction,  and  in  good  faith,  and  was  done  for  the 
public  safety  and  to  prevent  the  spread  of  the  disease,  and  such  means 
used  as  are  usually  resorted  to  and  approved  by  medical  science  in  such 
cases,  and  was  done  with  reasonable  care  and  regard  for  the  safety  of 
others,  then  the  parties  were  justified  in  what  they  did,  and  the  parties 
inconvenienced  could  not  complain,  nor  could  the  state  enforce  a  crimi- 
nal liability  for  results  of  temporary  inconvenience  or  unpleasantness 


496  REGINA  V.    GRIFFIN.  [CHAP    VIII. 

that  accrue  from  the  use  of  such  proper  and  accredited  means  for  the 
safety  of  the  community  against  the  spread  of  disease. 

The  theory  of  his  Honor  is  the  opposite  of  this,  and  is  erroneous.    Let 
the  judgment  be  reversed  and  the  case  remanded  for  a  new  trial. 


SECTION   II. 

Domestic  Authority/. 

Foster,  C.  L.  262.  Parents,  masters,  and  other  persons,  having 
authoritj'  in  foro  domestico,  may  give  reasonable  correction  to  those 
under  their  care ;  and  if  death  ensueth  without  their  fault,  it  will  be 
no  more  than  accidental  death.  But  if  the  correction  exceedeth  the 
bounds  of  due  moderation,  either  in  the  measure  of  it  or  in  the 
instrument  made  use  of  for  that  purpose,  it  will  be  either  murder  or 
manslaughter  according  to  the  circumstances  of  the  case.^ 


REGINA  V.  GRIFFIN. 
^  Liverpool  Assizes.     1869. 

'h^'  [Reported  1 1  Cox  C.  C.  402.] 

The  prisoner,  David  Griffin,  was  indicted  for  the  manslaughter  of 
Ann  Griffin,  at  Liverpool,  on  the  7th  of  November,  1869. 

The  deceased,  who  was  the  daughter  of  the  prisoner,  was  two  years 
and  six  months  old,  and  her  death  took  place  under  the  following 
circumstances. 

On  the  7th  of  November  the  prisoner's  wife  had  occasion  to  leave 
the  house,  the  deceased,  with  her  brother  and  sister,  being  at  that  time 
in  bed,  in  a  room  adjoining  that  in  which  the  prisoner  wa?)  sitting. 
During  the  absence  of  his  wife,  the  prisoner  heard  the  deceased  crying, 
and  went  into  the  room  where  the  deceased  was,  and  took  her  out  of 
bed  into  another  room.  As  he  was  doing  this  she  committed  some 
childish  fault;  this  made  the  prisoner  angry  ;  and,  after  having  placed 
her  in  the  other  room,  he  got  a  strap  one  inch  wide  and  eighteen 
inches  long  and,  having  turned  up  her  clothes,  gave  her  from  six  to 
twelve  severe  strokes  over  the  lower  part  of  the  back  and  right  thigh. 
Deceased  did  not  cry  much  at  the  time,  but  appeared  very  frightened ; 

1  See  Reg.  v.  Hopley,  2F.  &  F.  202;  Com.  v.  Randall,  4  Grny,  36.  As  to  the  risht 
of  a  husband  to  beat  or  restrain  his  wife,  see  Reg  i-.  Jackson  (1S91),  1  Q.  B.  671 ;  Com. 
V.  McAfee,  108  Mass.  458  ;  People  v.  Winters,  2  Park.  C.  R.  10.  —  £d. 


SECT.  II.]  CLEARY  V.   BOOTH.  497 

she   never  recovered    from   the   effects,    and   died   on   the   following 
Wednesday,  November  10. 

Medical  evidence  was  given  to  the  effect  that  the  deceased  had  been 
a  healthy  child  and  well  nourished,  and  that  the  cause  of  death  was 
congestion,  accelerated  by  a  shock  to  the  nervous  system,  produced 
by  the  severe  beating  which  the  prisoner  had  given  it,  the  marks  of 
which  were  clearly  seen  at  the  jjost  mortem  examination  on  the  day 
following  her  death. 

Hawthorne,  for  the  prisoner,  contended  that  there  was  no  case  to 
go  to  the  jury,  for  the  prisoner  had,  as  a  father,  a  perfect  right  to  cor- 
rect his  child. 

Tidswell,  for  the  prosecution,  contended  that,  although  a  father 
might  correct  his  child,  the  law  did  not  permit  him  to  use  a  w^eapon 
improper  for  the  purpose  of  correction.  He  cited  Reg.  v.  Hopley  (2 
F.  &  F.  201.) 

Martin,  B.  (after  having  consulted  with  Willes,  J.,  who  concurred 

in   his   opinion).     The  law  as   to  correction  has  reference  only  to  a, 

child  capable  of  appreciating  correction,  and   not  to  an  infant   two 

years  and  a  half  old.     Although  a  slight  slap  may  be  lawfully  given  to 

an  infant  by  her  mother,  more  violent  treatment  of  an  infant  so  young 

by  her  father  would  not  be  justifiable  ;  and  the  only  question  for  the 

jury  to  decide  is,  whether  the  child's  death  was  accelerated  or  caused 

by  the  blows  inflicted  by  the  prisoner. 

Guilty. 


^^ 


CLEARY  y.  BOOTH. 

High  Court  of  Justice,  Queen's  Bench  Division.     1893. 

[Reported  1893,  1  Q.  B.  465.] 

Lawrance,  J.  The  question  in  this  case  is  not  an  easy  one  ;  there 
is  no  authority,  and  it  is  a  case  of  first  impression.  The  question  for 
us  is  whether  the  head  master  of  a  board  school  is  justified  in  inflicting 
corporal  punishment  upon  one  of  his  scholars  for  an  act  done  outside 
the  limits  of  the  school,  and  the  appellant's  counsel  has  in  his  argument 
relied  on  what  might  happen  if  a  boy  were  not  punished  by  the  master 
for  such  acts.  The  facts  seem  to  be  that  a  boy  while  coming  to  the 
appellant's  school  was  assaulted  by  another  boy  belonging  to  the  same 
school  ;  that  complaint  was  made  to  the  appellant,  who  then  and  there 
punished  the  boy  who  had  committed  the  assault  and  also  the  respond- 
ent, who  was  in  his  company.  The  first  observation  that  occurs  to  one 
to  make  is  that  one  of  the  greatest  advantages  of  any  punishment  is 
that  it  should  follow  quickly  on  the  offence.  The  cases  cited  to  us 
show  that  the  schoolmaster  is  in  the  position  of  the  parent.  "What 
is  to  become  of  a  boy  between  his  school  and  his  home?     Is  he  not 

32 


498  CLEAKY   V.   BOOTH.  [CHAP.  VIII. 

under  the  authority  of  his  parent  or  of  the  schoolmaster?  It  cannot 
be  doubted  that  he  is  ;  and  in  ray  opinion  among  the  powers  delegated 
by  the  parent  to  the  schoolmaster,  such  a  power  as  was  exercised  by 
the  appellant  in  this  case  would  be  freely  delegated.  If  we  turn  to  the 
Code  we  find  that  there  are  several  things  for  which  a  grant  may  be 
given,  including  discipline  and  organization,  and  that  the  children  are 
to  be  brought  up  in  habits  of  good  manners  and  language,  and  of  con- 
sideration for  others.  Can  it  be  reasonably  argued  that  the  only  right 
of  a  schoolmaster  to  inflict  punishment  is  in  respect  of  acts  done  in  the 
school,  and  that  it  is  only  while  the  boys  are  there  that  he  is  to  see 
that  they  are  well-mannered,  but  that  he  has  exceeded  all  the  authorit}' 
delegated  to  him  by  the  parent  if  he  punishes  a  boy  who  within  a  yard 
of  the  school  is  guilty  of  gross  misbehavior?  It  is  difficult  to  express 
in  words  the  extent  of  the  schoolmaster's  authority  in  respect  to  the 
punishment  of  his  pupils ;  but  in  my  opinion  his  authority  extends,  not 
only  to  acts  done  in  school,  but  also  to  cases  where  a  complaint  of  acts 
done  out  of  school,  at  any  rate  while  going  to  and  from  school,  is  made 
to  the  schoolmaster.  In  the  present  case  I  think  that  weight  may  prop- 
erly be  placed  on  the  fact  that  the  act  for  which  the  boy  was  punished 
was  done  to  another  pupil  of  the  same  school.  I  think,  therefore,  that 
^the  justices  were  wrong  in  convicting  the  appellant  as  they  did,  and 
that  the  case  must  be  sent  back  to  them  to  find  as  a  fact  whether  the 
pui\i|hment  was  excessive. 

Collins,  J.  I  am  of  the  same  opinion.  It  is  clear  law  that  a  father 
has  the  right  to  inflict  reasonable  personal  chastisement  on  his  son.  It 
is  equally  the  law,  and  it  is  in  accordance  with  very  ancient  practice, 
that  he  may  delegate  this  right  to  the  schoolmaster.  Such  a  right  has 
always  commended  itself  to  the  common  sense  of  mankind.  It  is  clear 
that  the  relation  of  master  and  pupil  carries  with  it  the  right  of  reason- 
able corporal  chastisement.  As  a  matter  of  common  sense,  how  far 
is  this  power  delegated  b}'  the  parent  to  the  schoolmaster?  Is  it  lim- 
ited to  the  time  during  which  the  bo}'  is  within  the  four  walls  of  the 
school,  or  does  it  extend  in  any  sense  beyond  that  limit?  In  my  opin- 
ion the  purpose  with  which  the  parental  authority  is  delegated  to  the 
schoolmaster,  who  is  entrusted  with  the  bringing  up  and  discipline  of 
the  child,  must  to  some  extent  include  an  authority  over  the  child 
while  he  is  outside  of  the  four  walls.  It  ma}-  be  a  question  of  fact  in 
each  case  whether  the  conduct  of  the  master  in  inflicting  corporal  pun- 
ishment is  right.  Very  grave  consequences  would  result  if  it  were  held 
that  the  parent's  authority  was  exclusive  up  to  the  door  of  the  school, 
and  that  then,  and  only  then,  the  master's  authorit}'  commenced;  it 
would  be  a  most  anomalous  result  to  hold  that  in  such  a  case  as  the 
present  the  boy  who  had  been  assaulted  had  no  remed}'  by  complaint 
to  his  master,  who  could  punish  the  assailant  by  a  thrashing,  but  must 
go  before  the  magistrate  to  enforce  a  remedy  between  them  as  citizens. 
Not  only  would  such  a  position  be  unworkable  in  itself,  but  the  Code, 


SECT.  II.]  COMMONWEALTH   V.   McAFEE.  499 

which  has  the  force  of  an  Act  of  Parliament,  clearly  contemplates  that 
the  duties  of  the  master  to  his  pupils  are  not  limited  to  teaching.  A 
grant  may  be  made  for  discipline  and  organization,  and  it  is  clear  that 
he  is  entrusted  with  the  moral  training  and  conduct  of  his  pupils.  It 
cannot  be  that  such  a  dut}'  or  power  ceases  the  moment  that  the  pupil 
leaves  school  for  home;  there  is  not  much  opportunity  for  a  boy  to 
exhibit  his  moral  conduct  while  in  school  under  the  eye  of  the  master : 
the  opportunity  is  while  he  is  at  play  or  outside  the  school ;  and  if  the 
schoolmaster  has  no  control  over  the  boys  in  their  relation  to  each  other 
except  when  they  are  within  the  school  walls,  this  object  of  the  Code 
would  be  defeated.  In  such  a  case  as  the  present,  it  is  obvious  that 
the  desired  impression  is  best  brought  about  by  a  summary  and  imme- 
diate punishment.  In  my  opinion  parents  do  contemplate  such  an 
exei'cise  of  authority  by  the  schoolmaster.  I  should  be  sorrj'  if  I  felt 
myself  driven  to  come  to  the  opposite  conclusion,  and  am  glad  to  be 
able  to  sa}^  that  the  principle  shows  that  the  authority  delegated  to  the 
schoolmaster  is  not  limited  to  the  four  walls  of  the  school.  It  is  always 
a  question  of  fact  whether  the  act  done  was  outside  the  'delegated 
authority';  but  in  the  present  case  I  am  satisfied,  on  the  facts,  that 
it  was  obviously  within  it.  The  question  of  excess  is  one  for  the 
magistrates. 


COMMONWEALTH  v.  McAFEE. 

Supreme  Judicial  Court  of  Massachusetts.     1871. 

[Reported  108  Mass.  458.] 

Indictment  of  Hugh  McAfee,  charging  him  with  the  manslaughter 
of  Margaret  McAfee,  his  wife,  in  that  he,  "  the  said  Margaret  did 
feloniously  and  wilfully  strike,  kick,  beat,  bruise,  and  wound,  in  and 
upon  the  head  and  body  of  her,  the  said  Margaret,  and  her,  the  said 
Margaret,  did  throw  upon  the  floor,  thereby  by  the  said  striking,  kick- 
ing, beating,  wounding,  and  throwing  upon  the  floor,  then  and  there 
giving  to  the  said  Margaret  divers  and  many  mortal  strokes,"  etc.,  of 
which  said  mortal  strokes,  etc.,  the  said  Margaret  then  and  there  died. 

It  appeared  at  the  trial  that  the  defendant's  wife  was  drunk ;  that  he 
struck  her  with  his  open  hand,  one  blow  on  the  cheek  and  one  upon  the 
temple  ;  and  that  she  fell  upon  the  floor  and  did  not  speak  afterward. 
Medical  witnesses  testified,  "  that  she  had,  by  falling  on  a  chair  most 
probably,  or  b}'  some  other  external  force,  been  affected  by  concussion 
of  the  brain  and  eflTusion  of  blood  on  the  brain,  and  that  thus  her  death 
was  occasioned." 

The  defendant  requested  the  judge  to  instruct  the  jury  that  the  hus- 
band had  a  legal  right  to  administer  due  and  proper  correction  and 
corporal  chastisement  on  his  wife.^ 

1  Only  so  much  of  the  case  as  discusses  this  request  is  given.  —  Ed. 


500  BEX  V.   COMPTON.  [CHAP.  VIII. 

The  judge  refused  so  to  instruct  the  jury,  and  gave  them  the  follow- 
ing instructions  :  "  Upon  any  view  of  the  facts  in  this  case,  which  the 
testimony,  taken  most  strongly  for  the  defendant,  will  allow,  there  was, 
as  matter  of  law,  no  justification  for  the  blows  given  by  the  defendant 
to  the  deceased.  If  the  unlawful  blows  of  the  defendant  caused  death, 
either  directly,  or  by  causing  the  deceased  to  fall  upon  the  floor  by  the 
force  and  effect  thereof,  and  so  death  thereby  ensued,  then  the  defend- 
ant is  guilty  of  manslaughter."  The  jury  returned  a  verdict  of  guilty, 
and  the  defendant  alleged  exceptions. 

Chapman,  C.  J.  .  .  .  The  beating  of  the  defendant's  wife  was  un- 
lawful. In  Pearman  v.  Pearman,  1  Swab.  &  Tristr,  601,  it  is  said  that- 
there  is  no  law  authorizing  a  man  to  beat  his  drunken  wife.  Beating  a 
wife  is  held  to  be  unlawful  in  New  York.  People  v.  Winters,  2 
Parker's  Crim.  Cas.  10;  Perry  v.  Perry,  2  Paige,  501,  503.  There  is 
no  authority  in  its  favor  in  this  commonwealth.  Beating  or  striking  a 
wife  violently  with  the  open  hand  is  not  one  of  the  rights  conferred  on 
a  husband  by  the  marriage,  even  if  the  wife  be  drunk  or  insolent. 
The  blows  being  illegal,  the  defendant  was  at  least  guilty  of  man- 
slaughter.   Commonwealth  v.  Fox,  7  Gray,  585. 

Exceptions  overruled. 


SECTION   III. 
Warrant. 


REX   V.   COMPTON. 
Assizes.     1347. 

[Reported  Liber  Assisarum,  97,  pi.  55.] 

H.  DE  CoMPTON  was  indicted,  &c.,  that  he  feloniously  killed  H.  Vescy 
at  C.  on  a  certain  day  in  the  fourteenth  year  of  the  present  King,  and 
also  for  that  he  received  one  R.,  who  was  outlawed  for  felony,  know- 
ing, &c.,  for  which  he  was  now  arraigned. 

H.  said  that  said  H.  V.  died  in  the  ninth  year  of  the  present  King ; 
and  that  said  H.  V.  and  another  were  indicted  in  the  ninth  year  of  the 
present  King,  before  Sir  T.  de  Rokeby,  Sheriff  of  York,  of  divers  felo- 
nies, when  the  sheriff  assigned  the  said  J.  [H.?]  de  C.  by  his  commission 
(which  he  exhibited  to  the  court)  to  arrest  and  take  the  said  H.  and 
the  other  thieves ;  and  the  said  H.  de  C.  with  others  came  to  the  said 
place,  and  there  found  the  said  H.  and  the  other  thieves,  and  sliowed 
them  their  warrant,  which  they  had  to  arrest  them,  find  ordered  them 


SECT.  III.]  EEX  V.   COMPTON.  501 

to  surrender ;  and  the}'  would  not  surrender,  but  defended  themselves, 
and  killed  and  wounded  divers  persons,  and  in  this  fight  H.  was  killed. 
And  we  do  not  think  that  our  Lord  the  King  ought  to  impeach  us  of 
his  death. 

Thorp,  C.  J.  All  shall  be  found  out  b}'  the  jury.  (And  he  told  them 
all  that  he  had  said.)  Wherefore  we  ask  3'ou  whether  H.  V.  died  in 
the  ninth  year  of  the  present  king  and  not  in  the  fourteenth,  as  the 
indictment  is,  and  if  there  was  no  other  H.  V.  whom  he  killed  in  the 
fourteenth  year,  and  also  if  he  might  have  taken  him  without  killing 
him,  so  that  he  killed  him  of  his  own  malice,  &c.,  and  if  you  find  that, 
speak  of  his  lands  and  goods. 

The  jury  said  that  H.  had  gone  (as  he  said) ,  and  that  there  was  no 
other  H.  V.  than  that  one,  &c.,  and  that  he  could  not  have  taken  him 
in  another  way. 

Thorp.  Tiie}'  have  acquitted  30U  of  this  charge,  and  we  acquit  30U. 
And  I  sa}'  well  to  you  that  when  a  man  kills  another  by  his  warrant 
he  may  well  avow  the  fact,  and  we  will  freely  acquit  him  without  wait- 
ing for  the  King's  pardon  b}'  his  charter  in  this  case.  And  in  many 
other  cases  a  man  may  kill  another  without  impeacliment,  as  if  thieves 
come  to  rob  a  man,  or  to  commit  burglar}'  in  his  house,  he  may  safely 
kill  them,  if  he  cannot  take  them.  And  note,  how  it  was  with  a 
gaoler  who  came  to  the  gaol  with  a  hatchet  in  his  hand,  and  just  then 
the  prisoners  had  broken  their  irons,  and  were  all  ready  to  have  killed 
him,  and  they  wounded  him  sorely,  but  with  the  hatchet  in  his  hand 
he  killed  two,  and  then  escaped,  &c.  And  it  was  adjudged  in  this 
case  by  all  the  council  that  he  would  not  have  done  well  otherwise,  &c. 
Likewise  he  said  that  evei'y  person  might  take  thieves  in  the  act  of 
larceny,  and  felons  in  the  act  of  felony,  and  if  they  would  not  sur- 
render peaceably,  but  stood  on  their  defence,  or  fled,  in  such  case  he 
might  kill  them  without  blame,  &c. 


502  KEGINA   V.   DADSON.  [CHAP.  YIIL 


SECTION  TV. 
Prevention  of  Crime. 

REX   r.    SMITH. 

Old  Bailey.     1804. 

[Reported  1  Russ.  Cr.  ^-  M.  458.] 

The  neighborhood  of  Hammersmith  had  been  alarmed  b}-  what  was 
supposed  to  be  a  ghost ;  the  prisoner  went  out  with  a  loaded  gun  to 
take  the  ghost ;  and,  upon  meeting  witli  a  person  dressed  in  white, 
immediately  shot  him. 

M'DoNALD,  C.  B.,  RoOKE  and  Lawrence,  JJ.,  were  clear  that  this 
was  murder,  as  the  person  who  appeared  as  a  ghost  was  onl\-  guilt}'  of  a 
misdemeanor  ;  and  no  one  might  kill  him,  though  he  could  not  otherwise 
be  taken. 

The  jury,  however,  brought  in  a  verdict  of  manslaughter;  but  the 
court  said  that  the}'  could  not  receive  that  verdict,  and  told  the  jury 
that  if  they  believed  the  evidence,  they  must  find  the  prisoner  guilty  of 
murder,  and  that  if  they  did  not  believe  the  evidence  they  should  acquit 
the  prisoner. 

The  jury  then  found  the  prisoner  guilty,  and  sentence  was  pronounced, 
but  the  prisoner  was  afterwards  reprieved. 


REGINA   V.  DADSON. 
Crown  Case  Reserved.    1850. 

[Reported  4  Cox  C.  C.  358.] 

The  prisoner  was  tried  and  convicted  before  Erle,  J.,  at  the  last 
Maidstone  Assizes,  but  the  learned  judge,  entertaining  some  doubt  as 
to  the  propriety  of  the  conviction,  reserved  the  following  case  :  — 

George  Dadson  was  indicted  for  shooting  at  William  Waters,  with 
intent  to  do  him  grievous  bodily  harm.  It  appeared  that  he,  being  a 
constable,  was  employed  to  guard  a  copse,  from  which  wood  had  been 
stolen,  and  for  this  purpose  carried  a  loaded  gun.  From  this  copse  he 
saw  the  prosecutor  come  out,  carrying  wood,  which  he  was  stealing, 
and  called  to  him  to  stop.    The  prosecutor  ran  away,  and  the  prisoner, 


SECT.  IV.]  REGINA   V.   MURPHY.  503 

having  no  other  means  of  bringing  him  to  justice,  fired,  and  wounded 
him  in  the  leg.  These  were  the  facts  on  which  the  prisoner  acted.  It 
was  alleged  in  addition  that  Waters  was  actually  committing  a  felon}-, 
he  having  been  before  convicted  repeatedly  of  stealing  wood,  but  these 
convictions  were  unknown  to  the  prisoner,  nor  was  there  any  reason 
for  supposing  that  he  knew  the  difference  between  the  rules  of  law 
relating  to  felony  and  those  relating  to  less  offences.  I  told  the  jury 
that  shooting  with  intent  to  wound  amounted  to  the  felony  charged, 
unless  from  other  facts  there  was  a  justification  ;  and  that  neither  the 
belief  of  the  prisoner  that  it  was  his  duty  to  fire  if  he  could  not  other- 
wise apprehend  the  prosecutor,  nor  the  alleged  felony,  it  being  unknown 
to  him,  constituted  such  justification.  Upon  this  the  prisoner  was  con- 
victed of  felony,  and  let  out  on  his  recognizances  to  come  up  for  judgment, 
if  required.  I  have  to  request  the  opinion  of  the  judges  whether  this 
conviction  was  right. 

[This  case  stood  for  argument  on  Wednesday,  November  20,  but  no 
counsel  were  instructed.  For  the  legal  distinction  adverted  to  in  the 
case  with  regard  to  the  apprehension  of  felons  and  misdemeanants  only, 
see  1  Hale,  481  •  4  Bl.  Com.  179  ;  Fost.  271  ;  R.  v.  Smith,  1  Russ.  on 
Cr.  546.1  ^'"^*-  ^^^^'  ^'^(^f- 

Pollock,  C.  B.,  delivered  the  judgment  of  the  court.  (After  stating 
the  facts  as  above.)  We  are  all  of  opinion  that  the  conviction  is  right. 
The  prosecutor  not  having  committed  a  felony  known  to  the  prisoner 
at  the  time  when  he  fired,  the  latter  was  not  justified  in  firing  at  the 
prosecutor  ;  and  having  no  justifiable  cause,  he  was  guilty  of  shooting 
at  the  prosecutor  with  intent  to  do  him  grievous  bodily  harm,  and  the 
conviction  is  right.  Conviction  affirmed. 


^  7    N 
REGINA   V.  MURPHY. 

Meath  Assizes.    1839. 

[Reported  1  Crawford  ^-  Dix,  20.] 

The  prisoner  was  indicted  under  the  statute  7  Will.  IV.  &  1  Vict. 
c.  85,  for  that  a  certain  gun  then  and  there  loaded  with  gunpowder  and 
divers  leaden  shot,  which  said  gun  he  the  said  P.  M.,  in  both  his  hands, 
then  and  there  had  and  held,  at  and  against  one  Christopher  Hand,  then 
and  there  feloniously,  unlawfully,  and  maliciously  did  shoot,  with  intent 
in  so  doing  thereby  then  and  there  the  said  C.  H.  to  disfigure,  to  disable, 
and  to  do  some  gi-ievous  bodil}'  harm. 

It  appeared  that  on  the  day  in  question  the  prisoner,  who  was  a 
game-keeper  and  woodranger  of  Lord  Dunsany,  and  armed  with  a 
fowling-piece,  detected  the  prosecutor  in  the  act  of  carrying  away  from 
his  employer's  lands  a  bundle  of  sticks,  consisting  of  branches  severed 
from  the  growing  timber  by  a  recent  storm ;  that  the  prosecutor  being 


^^,;r^> 


-JL>a 


ovuvjisLtv: 


^    [chap.  VIII. 


apparently  aBout  to  pass  over  a  ditch  and  hedge  upon  the  same  lands, 
the  prisoner  cried  out  to  him,  ''Have  you  no  other  way  of  going  but 
breaking  the  hedge  ?  "  that  the  prosecutor  made  no  reply,  but  instantly 
dropped  the  wood  and  leaped  the  ditch ;  that  the  prisoner  thereupon 
said,  "If  you  don't  stop  I  '11  fire  ;  "  that  the  prosecutor  still  going  on, 
the  prisoner  discharged  his  piece  and  wounded  the  prosecutor  in  the 
head,  back,  and  arms.  When  the  prosecutor  felt  himself  wounded  he 
said  to  the  prisoner,  who  had  come  up  with  him,  "I  did  not  think  you 
would  have  done  it ;"  to  which  the  latter  replied,  "I  would  do  that  and 
worse  to  3'ou." 

W.  Gorman,  for  the  prisoner,  submitted  that,  under  the  circum- 
stances, he  (the  prisoner)  was  entitled  to  an  acquittal ;  that  he,  being 
the  woodranger  of  the  owner  of  the  soil,  had  an  equal  right  to  defend 
the  property  thereon ;  and  that,  having  detected  the  prisoner  in  the  act 
of  committing  a  felon}',  1)y  carrying  off  the  dissevered  timber,  he  had 
made  use  of  the  only  means  in  his  power  for  the  purpose  of  arresting 
the  felon. 

Tickell,  Q.  (7.,  for  the  Crown.    The  prosecutor  was  a  mere  trespasser. 

DoHERTY,  C.  J.  He  was  something  more  than  a  trespasser ;  there  is 
no  doubt  that  the  prosecutor,  in  carrying  away  the  branches,  previously 
dissevered  from  the  trees,  was  committing  a  felony,  and  the  prisoner 
was  clearly  entitled  to  arrest  him  ;  but  in  discharging  his  gun  at  the 
prosecutor,  and  perilling  his  life,  the  prisoner  has  very  much  exceeded 
is  lawful  powers,  and  I  cannot  allow  it  to  go  abroad  that  it  is  lawful 
to  fire  upon  a  person  committing  trespass  and  larceny,  for  that  would 
be  punishing,  perhaps  with  death,  offences  for  which  the  law  has  pro- 
ided  milder  penalties.  It  appears,  moreover,  that  the  expressions 
addressed  by  the  prisoner  to  the  prosecutor  had  reference  rather  to  the 
acts  of  trespass  than  the  felony.  Verdict,  Guilty, 


UNITED   STATES  v.   CLARK. 

U.  S.  Circuit  Court,  E.  Dist.  Michigan.     1887. 

[Reported  31  Federal  Reporter,  710.] 

Brown,  J.  In  view  of  the  fact  that  this  was  a  homicide  committed 
b}'  one  soldier,  in  the  performance  of  his  alleged  duty,  upon  another 
soldier,  within  a  military  reservation  of  the  United  States,  I  had  at  first 
some  doubt  whether  a  civil  court  could  take  cognizance  of  the  case  at 
all ;  but,  as  crimes  of  this  nature  have  repeatedly*  been  made  the  subject 
of  inquiry  by  civil  tribunals,  I  have  come  to  the  conclusion  that  I  ought 
not  to  decline  to  hear  this  complaint.  Indeed,  it  is  difficult  to  see  how 
I  could  refuse  to  do  so  without  abdicating  that  supremacy  of  the  civil 


SECT.  IV.]  UNITED    STATES   V.   CLARK.  605 

power  which  is  a  fundamental  principle  of  the  Anglo-Saxon  politv. 
While  there  is  no  statute  expressl}-  conferring  such  jurisdiction,  there 
is  a  clear  recognition  of  it  in  the  fiftj-'ninth  article  of  war,  which  pro- 
vides that  "  when  any  officer  or  soldier  is  accused  of  a  capital  crime, 
or  of  any  offence  against  the  person  or  property  of  any  citizen  of  any 
of  the  United  States,  which  is  punishable  by  the  laws  of  the  land,  the 
commanding  officer,  and  the  officers  of  the  regiment,  troop,  battery, 
company,  or  detachment  to  which  the  person  so  accused  belongs,  are 
required  (except  in  time  of  war),  upon  application  duly  made  by  or  in 
behalf  of  the  party  injured,  to  use  their  utmost  endeavors  to  deliver 
him  over  to  the  civil  magistrate,  and  to  aid  the  officers  of  justice  in 
apprehending  him  and  securing  him,  in  order  to  bring  him  to  trial." 
This  article  makes  no  exception  of  crimes  committed  by  one  soldier 
upon  another,  nor  of  cases  where  there  is  concurrent  jurisdiction  in  the 
military  courts.  Tytler,  in  his  work  upon  Military  Law,  says:  "The 
martial  or  military  law,  as  contained  in  the  mutiny  act  and  articles  of 
war,  does  in  no  respect  supersede  or  interfere  with  the  civil  or  munici- 
pal laws  of  the  realm.  .  .  .  Soldiers  are,  equally  with  all  other  classes  of 
citizens,  bound  to  the  same  strict  observance  of  the  laws  of  the  country, 
and  the  fulfilment  of  all  their  social  duties,  and  are  alike  amenable 
to  the  ordinary  civil  and  criminal  courts  of  the  country  for  all  offences 
against  those  laws,  and  breaches  of  those  duties." 

In  the  case  of  U.  S.  v.  Cornell,  2  Mason,  61,  91,  Mr.  Justice  Story 
took  cognizance  of  a  murder  committed  b}-  one  soldier  upon  another  in 
Fort  Adams,  Newport  harbor.  The  case  was  vigorously  contested, 
and  the  point  was  made  that  the  State  courts  had  jurisdiction  of  the 
offence,  but  there  was  no  claim  that  there  was  not  jurisdiction  in  some 
civil  tribunal.  A  like  case  was  that  of  a  murder  committed  in  Fort 
Pulaski,  at  the  mouth  of  the  Savannah  River,  and  tried  in  1872  before 
Mr.  Justice  Woods  and  Judge  Erskine.  U.  S.  v.  Carr,  1  Woods,  480. 
No  question  was  raised  as  to  the  jurisdiction.  The  subject  of  the  civil 
responsibility  of  the  army  was  verj'  carefully  considered  by  Attorney- 
General  Gushing,  .in  Steiner's  Case,  6  Ops.  Atty.-Gen.  413,  and  the 
conclusion  reached  that  an  act  criminal  both  b}-  military  and  general 
law  is  subject  to  be  tried  either  by  a  military  or  civil  court,  and  that  a 
conviction  or  acquittal  by  the  civil  authorities  of  the  offence  against 
the  general  law  does  not  discharge  from  responsibilitj'  for  the  military 
offence  involved  in  the  same  facts.  The  converse  of  this  proposition  is 
equally  true. 

The  character  of  the  act  involved  in  this  case  presents  a  more  seri- 
ous question.  The  material  facts  are  undisputed.  There  is  no  doubt 
that  the  deceased  was  killed  by  the  prisoner  under  the  performance 
of  a  supposed  obligation  to  prevent  his  escape  by  any  means  in 
his  power.  There  is  no  evidence  that  the  prisoner  fired  before  the 
necessity  for  his  doing  so  had  become  apparent.  Stone  was  called 
upon  several  times  to  halt,  with  a  hail  by  the  quartermaster  sergeant 
that  there  was  "  a  load  after  him."     Duff,  his  nearest  pursuer,  was  not 


506 


UNITED   STATES   V.   CLARK.  [cHAP.  VIII. 


gainincr  upon  him,  and  in  another  half-minute  he  would  have  scaled  the 
two  fences  between  him  and  the  highway,  and  would  probably  have 
been  lost  in  the  houses  that  lie  on  the  other  side  of  the  street.  A  court 
of  inquiry,  called  for  the  purpose  of  fully  investigatiug  the  circum- 
stances was  of  the  opinion  that  if  Clark  had  not  performed  his  duty 
as  efficiently  as  he  did,  by  firing  on  deceased,  he  certainly  would  have 
effected  his  escape ;  and  found  that  no  further  action  was  necessary  in 
the  case.  The  prisoner  and  the  deceased  had  always  been  good  friends, 
and  it  is  at  least  doubtful  whether  Clark  recognized  him  at  the  time  of 
firing  the  fatal  shot.  The  prisoner  has  heretofore  borne  a  most  excellent 
repuUtion,  was  never  court-martialled  nor  punished,  and  was  pronounced 
by  all  the  witnesses  who  testified  upon  the  subject  to  be  an  exceptionally 
good  soldier.  There  is  not  the  slightest  reason  to  suppose  that  he  was 
not  acting  in  obedience  to  what  he  believed  to  be  his  duty  in  the 
premises.  There  was  some  conflicting  testimony  as  to  whether  he  was 
standing  or  kneeling  at  the  time  he  fired,  but  I  am  not  able  to  see  its 
raaterialit3^  If  he  was  authorized  to  shoot  at  all,  he  was  at  liberty  to 
take  such  position  as  would  insure  the  most  accurate  aim,  whether  his 
object  was  to  hit  the  deceased  in  the  leg  or  in  the  body.  Clark  says 
that  he  aimed  low,  for  the  purpose  of  merely  disabling  him,  but,  owing 
to  a  sudden  descent  in  the  ground,  the  shot  took  effect  in  the  back 
instead  of  the  leg.  For  the  purpose  of  this  examination,  however,  I  am 
bound  to  presume  that  he  intended  to  kill,  as  a  man  is  always  presumed 
to  intend  the  natural  and  probable  consequences  of  his  acts.  The  case, 
then,  reduces  itself  to  the  naked  legal  proposition  whether  the  prisoner 
is  excused  in  law  in  killing  the  deceased. 

The  general  rule  is  well  settled,  by  elementary  writers  upon  criminal 
law,  that  an  officer  having  custody  of  a  person  charged  with  felony  may 
take  his  life,  if  it  becomes  absolutely  necessary  to  do  so  to  prevent  his 
escape ;  but  he  may  not  do  this  if  he  be  charged  simply  with  a  misde- 
meanor ;  the  theory  of  the  law  being  that  it  is  better  that  a  misdemean- 
ant escape  than  that  human  life  be  taken.  I  doubt,  however,  whether 
this  law  would  be  strictly  applicable  at  the  present  day.  Suppose,  for 
example,  a  person  were  arrested  for  petit  larceny,  which  is  a  felony  at 
the  common  law,  might  an  officer  under  any  circumstances  be  justified 
in  killing  him?  1  think  not.  The  punishment  is  altogether  too  dispro- 
portioned  to  the  magnitude  of  the  offence.  Perhaps,  under  the  statute 
of  this  state,  2  How.  St.  §  9430,  wherein  a  felony  is  "construed  to  mean 
an  offence  for  which  the  offender,  on  conviction,  shall  be  liable  by  law 
to  be  punished  by  death,  or  by  imprisonment  in  the  state  prison,"  the 
principle  might  still  be  applied.  If  this  statute  were  applicable  to  this 
case,  it  would  operate  as  a  justification,  since  Stone  had  been  convicted 
and  sentenced  to  hard  labor  in  a  military  prison.  Under  the  recent 
case  of  ^a;  parte  Wilson,  114  U.  S.  417,  5  Sup.  Ct.  Rep.  935,  it  was 
adjudged  by  the  Supreme  Court,  upon  full  consideration,  that  a  crime 
punishable  by  imprisonment  for  a  term  of  years  at  hard  labor  was  au 
"infamous  crime,"  within  the  meaning  of  the  Constitution. 


SECT.  IV.]  UNITED   STATES    V.    CLARK.  507 

Manifestly,  however,  the  case  must  be  determined  b}'  different  con- 
siderations. Stone  had  been  court-martialled  for  a  military  offence,  in 
which  there  is  no  distinction  between  felonies  and  misdemeanors.  His 
crime  was  one  wholly  unknown  to  the  common  law,  and  the  technical 
definitions  of  that  law  are  manifestly  inappropriate  to  cases  which  are 
not  contemplated  in  the  discussion  of  common-law  writers  upon  the  sub- 
ject. We  are  bound  to  take  a  broader  view,  and  to  measure  the  rights 
and  liabilities  of  the  prisoner  by  the  exigencies  of  the  military  service, 
and  the  circumstances  of  the  particular  case.  It  would  be  extremely 
unwise  for  the  civil  courts  to  lay  down  general  principles  of  law  which 
would  tend  to  impair  the  efficiency  of  the  military  arm,  or  which  would 
seem  to  justify  or  condone  conduct  prejudicial  to  good  order  and  mili- 
tary discipUne.  An  army  is  a  necessity  —  perhaps  I  ought  to  say  an 
unfortunate  necessity  —  under  every  system  of  government,  and  no 
civilized  state  in  modern  times  has  been  able  to  dispense  with  one. 
To  insure  efficiency,  an  army  must  be,  to  a  certain  extent,  a  despotism. 
Each  officer,  from  the  general  to  the  corporal,  is  invested  with  an  arbi- 
trar}'  power  over  those  beneath  him,  and  the  soldier  who  enlists  in  the 
army  waives,  in  some  particulars,  his  rights  as  a  civilian,  surrenders 
his  personal  liberty  during  the  term  of  his  enlistment,  and  consents  to 
come  and  go  at  the  will  of  his  superior  officers.  He  agrees  to  become 
amenable  to  the  military  courts,  to  be  disciplined  for  offences  unknown 
to  the  civil  law,  to  relinquish  his  right  of  trial  by  jur}',  and  to  receive 
punishments  which,  to  the  civilian,  seem  out  of  all  proportion  to  the 
magnitude  of  the  offence. 

The  articles  of  war,  which  he  takes  an  oath,  upon  his  enlistment,  to 
observe,  are  in  fact  a  military  code  of  Draconic  severity,  and  authorize 
harsh  punishments  for  offences  which  seem  to  be  of  a  trivial  nature. 
Thus,  by  the  articles  of  war,  all  the  following  crimes  are  punishable  by 
death,  or  such  other  punishment  as  a  court-martial  may  direct :  strik- 
ing a  superior  officer;  drawing  or  lifting  up  a  weapon,  or  offering  any 
violence  against  him  ;  or  disobeying  any  lawful  command.  Article  21. 
Exciting  or  joining  in  any  mutiny  or  sedition.  Article  22.  Failing 
to  use  his  utmost  endeavors  to  suppress  such  mutiny  or  sedition,  or 
failing  to  give  information  thereof  to  his  commanding  officer.  Article  23. 
A  sentinel  sleeping  upon  his  post  or  leaving  it  before  he  is  relieved. 
Article  39.  Occasioning  false  alarms  in  camp  or  quarters.  Article  41. 
Misbehaving  himself  before  the  enemy,  running  away,  or  shamefully 
abandoning  any  post  which  he  is  commanded  to  defend  ;  speaking 
words  inducing  others  to  do  the  like  ;  casting  away  his  arms  or  amtnu- 
nition,  or  quitting  his  post  or  colors  to  plunder  or  pillage.  Article  42. 
Compelling  the  commander  of  any  post  to  surrender  it  to  the  enemy, 
or  to  abandon  it.  Article  43.  Making  known  the  watchword  to  any 
person  not  entitled  to  receive  it,  or  giving  the  watchword  different  from 
that  which  he  has  received.  Article  44,  Relieving  the  enemy  with 
mone}',  victuals,  or  ammunition,  or  harboring  or  protecting  an  enemy. 
Article  45.    Holding  correspondence  or  giving  intelligence  to  an  enemy. 


508  UNITED    STATES    V.    CLARK.  [CHAP.  TIIL 

Article  46.  Deserting  in  time  of  war.  Article  47.  Advising  or  per- 
suading another  to  desert  in  time  of  war.  Article  51.  Doing  violence  to 
anv  person  brino-ing  provisions  or  other  necessaries  to  camp  or  quarters 
of  "troops  in  foreign  parts.  Article  56.  Forcing  a  safeguard  in  a  foreign 
t^rritorv  or  during  a  rebellion.  Article  57.  Some  of  these  articles  are 
applicable  only  to  a  state  of  war,  but  some  of  them  treat  of  otfences 
which  mav  equally  weU  be  committed  in  time  of  peace.  Besides  these, 
there  are  a  number  of  minor  offences  punishable  as  a  court-martial  may 
direct,  and  a  general  and  very  sweeping  article  (No.  62)  providing  that 
all  crimes  not  capital,  and  all  disorders  and  neglects  to  the  prejudice  of 
good  order  and  military  discipline,  shall  be  justiciable  by  a  courtrmartial, 
and  punishable  at  the  discretion  of  the  court. 

Now,  while  the  punishment  in  Stone's  case  seems  to  the  ci\ilian 
quite  disproportionate  to  the  character  of  his  offence,  as  charged  in 
the  specifications,  which  was  no  more  nor  less  than  the  utterance  of  a 
malicious  falsehood,  when  gauged  by  the  penalties  attached  by  Congress 
to  the  several  offences  contained  in  the  articles  of  war,  it  does  not  seem 
so  excessive  ;  at  any  rate,  it  was  the  lawful  judgment  of  a  court  having 
jurisdiction  of  his  case,  and  it  was  his  duty  to  abide  by  it,  or  pursue 
his  remedy  in  the  method  provided  by  law.  In  seeking  to  escape,  the 
deceased  was  undoubtedly  guilty  of  other  conduct  prejudicial  to  good 
order  and  military  discipline,  and  was  liable  to  such  further  punishment 
as  a  court-martial  might  inflict.  In  suffering  him  to  escape,  the  prisoner 
became  amenable  to  article  69,  and,  failing  to  use  his  utmost  endeavor 
to  prevent  it,  was  himself  subject  to  such  punishment  as  a  court-martial 
mio-ht  direct.     Did  he  exceed  his  authority  in  using  his  musket  ? 

I  have  made  the  above  citations  from  the  military  code  to  show  that 
the  common-law  distinction  between  felonies  and  misdemeanors  is  of  no 
possible  service  in  gauging  the  duty  of  a  military  guard  with  respect  to 
a  soldier  in  the  act  of  escaping.  His  position  is  more  nearly  analogous 
to  that  of  an  armed  sentinel  stationed  upon  the  walls  of  a  penitentiar>' 
to  prevent  the  escape  of  convicts.  The  penitentiary  —  and  for  this 
purpose  we  may  use  the  house  of  correction  in  Detroit  as  an  example — 
may  contain  convicted  murderers,  felons  of  every  grade,  as  well  as  others 
charged  with  vagrancy  or  simple  breaches  of  the  peace,  and  criminals 
of  all  descriptions  between  the  two.  If  the  guard  sees  one  of  those 
prisoners  scaling  the  wall,  and  there  be  no  other  means  of  arresting 
him,  may  he  not  fire  upon  him  without  stopping  to  inquire  whether  he  is 
a  felon  or  a  misdemeanant  ?  If  he  prove  to  be  a  felon,  he  will  be  fully 
justified ;  if  he  prove  to  be  a  misdemeanant,  is  he  therefore  guilty  of 
murder?  There  are  undoubtedly  cases  where  a  person  who  has  no  mal- 
ice in  fact  may  be  charged  with  malice  in  law,  and  held  guilty  of  murder 
through  a  misapprehension  of  the  law.  Thus,  if  a  sheriff  charged  with 
the  execution  of  a  malefactor  by  hanging  should  carry  out  the  sentence 
by  shooting  or  beheading ;  or,  commanded  to  hang  upon  a  certain  day, 
should  hang  upon  another  day  ;  or  if  an  unauthorized  person  should 
execute  the  sentence, — it  would  probably  be  murder  at  common  law. 


SECT.  IV.]  UNITED    STATES   V.    CLAKK.  509 

But  these  cases  are  an  exception  to  the  general  rule,  that  actunl  malice 
must  exist  to  justify  a  conviction  for  murder.  "While  human  life  is 
sacred,  and  the  man  who  takes  it  is  held  strictly  accountable  for  his 
act,  a  reputable  citizen,  vho  certainl}-  does  not  lose  his  character  as 
such  by  enlisting  in  the  arm}',  ought  not  to  be  branded  as  a  murderer 
upon  a  mere  technicalit}-,  unless  such  technicality  be  so  clear  as  to 
admit  of  no  reasonable  doubt.  Thus,  if  a  sentinel  stationed  at  the  gate 
of  a  fort  should  wantonly  shoot  down  a  civilian  endeavoring  to  enter  in 
the  daytime,  or  an  officer  should  recklessl}'  ski}'  a  soldier  for  some  mis- 
conduct or  breach  of  discipline,  no  supposed  obligation  upon  his  part 
to  do  this  would  excuse  so  gross  an  outrage. 

In  this  connection  it  is  urged  by  the  defence  that  the  finding  of  the 
court  of  inquiry  acquitting  the  prisoner  of  all  blame  is  a  complete  bar 
to  this  prosecution.  I  do  not  so  regard  it.  If  the  civil  courts  have 
jurisdiction  of  murder,  notwithstanding  the  concurrent  jurisdiction  by 
court-martial  of  military  offences,  it  follows  logically  that  the  proceed- 
ings in  one  cannot  be  pleaded  as  a  bar  to  proceedings  in  the  other ; 
and  if  the  finding  of  such  court  should  conflict  with  the  well-recognized 
principles  of  the  civil  law,  I  should  be  compelled  to  disregard  it.  State 
V.  Rankin,  4  Cold.  145.  At  the  same  time  I  think  that  weight  should 
be  given,  and  in  a  case  of  this  kind  great  weight,  to  the  finding,  as  an 
expression  of  the  opinion  of  the  military  court  of  the  magnitude  of 
Stone's  offence,  and  of  the  necessity  of  using  a  musket  to  prevent  his 
escape.  I  am  the  more  impressed  with  this  view  from  the  difliculty  of 
applying  common  law  principles  to  a  case  of  this  description.  There  is 
a  singular  and  almost  total  absence  of  authority  upon  the  subject  of 
the  power  of  a  military  guard  in  time  of  peace.  But  considering  the 
nature  of  military  government,  and  the  necessity  of  maintaining  good 
order  and  discipline  in  a  camp,  I  should  be  loth  to  say  that  life  might 
not  be  taken  in  suppressing  conduct  prejudicial  to  such  discipline. 

In  charging  the  jur}'  in  U.  S.  v.  Carr,  1  Woods,  484,  Mr.  Justice 
Woods  instructed  them  to  "  inquire  whether,  at  the  moment  he  fired  his 
piece  at  the  deceased,  with  his  surroundings  at  that  time,  he  had  rea- 
sonable ground  to  believe,  and  did  believe,  that  the  killing  or  serious 
wounding  of  the  deceased  was  necessar}-  to  the  suppression  of  a  mutiny 
then  and  there  existing,  or  of  a  disorder  which  threatened  speedily  to 
ripen  into  a  mutiny.  If  he  had  reasonable  ground  so  to  believe,  and 
did  so  believe,  then  the  killing  was  not  unlawful.  .  .  .  But  it  must 
be  understood  that  the  law  will  not  require  an  officer  charged  with  the 
order  and  discipline  of  a  camp  or  fort  to  weigh  with  scrupulous  nicety 
the  amount  of  force  necessary  to  suppress  disorder.  The  exercise  of  a 
reasonable  discretion  is  all  that  is  required." 

So,  in  the  case  of  McCall  v.  McDowell,  1  Abb.  (U.  S.)  212,  218,  it  is 
said  that  "  except  in  a  plain  case  of  excess  of  authoritv,  where  at  first 
blush  it  is  apparent  and  palpable  to  the  commonest  understanding  that 
the  order  is  illegal,  I  cannot  but  think  that  the  law  should  excuse  the 
military  subordinate  when  acting  in  obedience  to  the  order  of  his  com- 


510  UNITED    STATES   V.   CLARK.  [CIIAP.  VIII. 

mander.  Otherwise  lie  is  placed  in  the  dangerous  dilemma  of  being 
liable  in  damages  to  third  persons  for  obedience  to  an  order,  or  to  the 
loss  of  his  commission  and  disgrace  for  disobedience  thereto.  .  .  .  The 
first  duty  of  a  soldier  is  obedience,  and  without  this  there  can  be  neither 
discipline  nor  eflBciencj  in  the  army.  If  every  subordinate  officer  and 
soldier  were  at  liberty  to  question  the  legality  of  the  orders  of  the  com- 
mander, and  obey  them  or  not  as  he  may  consider  them  valid  or  invalid, 
the  camp  would  be  turned  into  a  debating  school,  where  the  precious 
moment  for  action  would  be  wasted  in  wordy  conflicts  between  the 
advocates  of  conflicting  opinions."  It  is  true  this  was  a  civil  case  for 
false  imprisonment,  and  these  observations  were  made  with  reference  to 
a  question  of  malice,  which  was  material  as  bearing  upon  the  plaintiffs 
right  to  punitory  damages,  as  it  is  also  a  necessary  ingredient  in  the 
definition  of  murder. 

The  question  of  the  civil  responsibilit}'  of  a  naval  officer  (and  his 
criminal  responsibility  seems  to  be  the  same)  was  considered  by  the 
Supreme  Court  in  Wilkes  v.  Dinsman,  7  How.  89,  which  was  an  action 
of  trespass  against  Commodore  Wilkes  for  causing  the  plaintiff  to  be 
whipped  and  imprisoned  for  disobedience  of  orders,  near  the  Sandwich 
Islands.  In  discussing  the  responsibility  of  the  commanding  officer  of 
a  vessel  of  war,  Mr.  Justice  Woodbury  observed  :  "In  respect  to  those 
compulsory  duties,  whether  in  re-enlisting  or  detaining  on  board,  or  in 
punishing  or  imprisoning  on  shore,  while  arduously  endeavoring  to  per- 
form them  in  such  a  manner  as  might  advance  the  science  and  com- 
merce and  glory  of  his  country,  rather  than  his  own  personal  designs, 
a  public  officer,  invested  with  certain  discretionar}*  powers,  never  has 
been,  and  never  should  be,  made  answerable  for  any  injury-,  when 
acting  within  the  scope  of  his  authorit}',  and  not  influenced  b}'  malice, 
corruption,  or  cruelt\'.  .  .  .  The  officer,  being  intrusted  with  a  dis- 
cretion for  public  purposes,  is  not  to  be  punished  for  the  exercise  of  it, 
unless  it  is  first  proved  against  him,  either  that  he  exercised  the  power 
confided  to  him  in  cases  without  his  jurisdiction,  or  in  a  manner  not 
confided  to  him,  as,  with  malice,  cruelty,  or  wilful  oppression,  or,  in 
the  words  of  Lord  Mansfield,  that  he  exercised  it  as  if  '  the  heart  is 
wrong.'  In  short,  it  is  not  enough  to  show  that  he  committed  an  error 
in  judgment,  but  it  must  have  been  a  malicious  and  wilful  error." 

The  same  principle  was  applied  in  the  criminal  case  of  Riggs  v.  State, 
3  Cold.  85.  Riggs  was  a  private  soldier  who  had  been  convicted  of 
murder  in  killing  a  man  while  acting  under  the  orders  of  his  superior 
officer.  The  court  held  that  an  order  illegal  in  itself,  and  not  justifiable 
b}'  the  rules  and  usages  of  war,  so  that  a  man  of  ordinary  sense  and  un- 
derstanding would  know,  when  he  heard  it  read  or  given,  that  the  order 
was  illegal,  would  afford  the  private  no  protection  for  a  crime  under 
such  order ;  but  that  an  order  given  by  an  officer  to  his  private  which 
does  not  expressly  and  clearly  show  on  its  face,  or  the  body  thereof, 
its  own  illegality,  the  soldier  would  be  bound  to  obey,  and  such  order 
would  be  a  protection  to  him. 


SECT.  IV.]  STOREY  V.   STATE.  511 

I  have  no  doubt  the  same  principle  would  apply  to  the  acts  of  a 
subordinate  officer,  performed  in  compliance  with  his  supposed  duty  as 
a  soldier ;  and  unless  the  act  were  manifestly  beyond  the  scope  of  his 
authority,  or,  in  the  words  used  in  the  above  case,  were  such  that  a  man 
of  ordinary  sense  and  understanding  would  know  that  it  was  illegal,  that 
it  would  be  a  protection  to  him,  if  he  acted  in  good  faith  and  without 
malice.  As  there  is  no  reason  in  this  case  to  suppose  that  Clark  was 
not  doing  what  he  conceived  to  be  his  duty,  and  the  act  was  not  so 
clearly  illegal  that  a  reasonable  man  might  not  suppose  it  to  be  legal, — 
indeed,  I  incline  to  the  opinion  that  it  was  legal,  —  and  as  there  was  an 
entire  absence  of  malice,  I  think  he  ought  to  be  discharged. 

But,  even  if  this  case  were  decided  upon  common-law  principles,  the 
result  would  not  be  different.  By  the  statutes  of  the  State  in  which  the 
homicide  was  committed,  a  felony  is  defined  to  be  any  crime  punishable 
by  imprisonment  in  the  State's  prison.  Stone  had  been  convicted  of  a 
military  offence,  and  sentenced  to  hard  labor  in  the  military  prison  for 
two  years,  and,  so  far  as  the  analogies  of  the  common  law  are  applicable 
at  all,  he  must  be  considered,  in  a  case  of  this  kind,  as  having  been 
convicted  of  a  felony. 

It  may  be  said  that  it  is  a  question  for  a  jur}-,  in  each  case,  whether 
the  prisoner  was  justified  by  the  circumstances  in  making  use  of  his 
musket,  and  if  this  were  a  jury  trial  I  should  submit  that  question  to 
them  ;  but  as  I  am  bound  to  find  as  a  matter  of  fact  that  there  is  reasona- 
ble cause  to  believe  the  defendant  guilty,  not  merely  of  a  homicide,  but 
ot  a,  felonious  homicide,  and  as  I  would,  acting  in  another  capacity,  set 
aside  a  conviction,  if  a  verdict  of  guilty  were  rendered,  I  shall  assume 
the  responsibility  of  directing  his  discharge. 


STOREY  V.   STATE. 

Supreme  Court  of  Alabama.     1882. 

[Reported  71  Ala.  329.] 

The  defendant  was  convicted  of  the  murder  of  Josiah  Hall.  To  the 
refusal  to  give  certain  charges  to  the  jury  the  defendant  excepted.^ 

SoMERViLLE,  J.  .  .  .  The  record  contains  some  evidence  remotely 
tending  to  show  that  the  prisoner  was  in  pursuit  of  the  deceased  for  the 
purpose  of  recapturing  a  horse,  which  the  deceased  had  either  stolen, 
acquired  by  fraud,  or  else  unlawfully  converted  to  his  own  use. 

If  the  property  was  merely  converted,  or  taken  possession  of  in  such 
manner  as  to  constitute  a  civil  trespass,  without  any  criminal  intent,  it 
would  not  be  lawful  to  recapture  it  by  any  exercise  of  force  which  would 

1  This  short  statement  is  substituted  for  that  of  the  reporter.  Part  of  the  opinion 
only  is  given.  — Er>. 


512  STOREY  V.  STATE.  [CHAP.  VIII. 

amount  even  to  a  breach  of  the  peace,  much  less  a  felonious  homicide. 

—  Street  v.  Sinclair,  71  Ala.  110;  Burns  v.  Campbell,  71  Ala.  271. 
Taking  the  hypothesis  that  there  was  a  larceny  of  the  horse,  it  be- 
comes important  to  inquire  what  would  then  be  the  rule.  The  larceny 
of  a  horse  is  a  felony  in  this  State,  being  specially  made  so  by  statute, 
without  regard  to  the  value  of  the  animal  stolen.  —  Code,  1876,  §  4358. 
The  fifth  charge  requested  by  the  defendant  is  an  assertion  of  the  prop- 
osition that  if  the  horse  was  feloniously  taken  and  carried  away  by  the 
deceased,  and  there  was  an  apparent  necessity  for  killing  deceased  in 
order  to  recover  the  property  and  prevent  the  consummation  of  the 
felon}-,  the  homicide  would  be  justifiable.  The  question  is  thus  pre- 
sented, as  to  the  circumstances  under  which  one  can  kill  in  order  to 
prevent  the  perpetration  of  a  larceny-  which  is  made  a  felony  b}'  statute 

—  a  subject  full  of  difficulties  and  conflicting  expressions  of  opinion 
from  the  very  earliest  history  of  our  common-law  jurisprudence.  The 
broad  doctrine  intimated  by  Lord  Coke  was,  that  a  felon  ma\'  lie  killed 
to  prevent  the  commission  of  a  felony  without  anj-  inevitable  cause,  or 
as  a  matter  of  mere  choice  with  the  slayer.  —  3  Inst.  56.  If  such  a 
rule  ever  prevailed,  it  was  at  a  ver}'  early  day,  before  the  dawn  of  a 
milder  civilization,  with  its  wiser  system  of  more  benignant  laws ;  for 
Blackstone  states  the  principle  to  be,  that  "  where  a  crime,  in  itself 
capital,  is  endeavored  to  be  committed  by  force,  it  is  lawful  to  repel  that 
force  by  the  death  of  the  party  attempting."  4  Com.  181.  The  rea- 
son he  assigns  is,  that  the  law  is  too  tender  of  the  public  peace  and  too 
careful  of  the  lives  of  the  subjects  to  "  suffer,  with  impunit}',  an}'  crime 
to  be  prevented  by  death,  unless  the  same,  if  committed,  would  also  be 
punished  by  death."  It  must  be  admitted  that  there  was  far  more 
reason  in  this  rule  than  the  one  intimated  by  Lord  Coke,  altliough  all 
felonies  at  common  law  were  punishable  by  death,  and  the  person  kill- 
ing, in  such  cases,  would  seem  to  be  but  the  executioner  of  the  law. 
Both  of  these  views,  however,  have  been  repudiated  by  the  later 
authorities,  each  being  to  some  extent  mnterialh-  modified.  All  admit 
that  the  killing  can  not  be  done  from  meie  elioicc  ;  and  it  is  none  the 
less  certain  that  the  felon}'  need  not  be  a  ca[)italone  to  come  within  the 
scope  of  the  rule.  Gray  v.  Combs,  7  J.  J.  Marsh.  458 ;  Cases  on  Self- 
Defence  (Horr.  &  Thomp.),  725,  867  ;  Oliver  v.  The  State,  17  Ala. 
587;  Carroll  v.  The  State,  23  Ala.  28. 

We  find  it  often  stated,  in  general  terms,  both  by  text  writers  and 
in  many  well  considered  cases,  that  one  may,  as  Mr.  Bishop  expresses 
it,  "  oppose  another  who  is  attempting  to  perpetrate  any  felony,  to  the 
extinguishment,  if  need  be,  of  the  felon's  existence."  —  1  Bish.  Cr.  Law, 
§§  849-50  ;  The  State  v.  Rutherford,  1  Hawks,  457.  It  is  observed  by 
Mr.  Bishop,  who  is  an  advocate  of  this  theory,  that  "  the  practical 
carrying  out  of  the  right  thus  conceded,  is,  in  some  circumstances, 
dangerous,  and  wherever  admitted,  it  should  be  carefully  guarded." 
1  Bish.  Cr.  Law,  §  855. 


SECT.  IV.]  STOREY   V.   STATE.  513 

After  a  careful  consideration  of  the  subject  we  are  fully  persuaded 
that  the  rule,  as  thus  stated,  is  neither  sound  in  principle,  nor  is  it  sui> 
ported  by  the  weight  of  modern  authority.  The  safer  view  is  that  taken 
by  Mr.  Wharton,  that  tlie  rule  does  not  authorize  the  killing  of  persons 
attempting  secret  felonies,  not  accompanied  by  force,  —  Whart.  on 
Hom.  §  539.  Mr.  Greenleaf  confines  it  to  "  the  prevention  of  any 
atrocious  crime  attempted  to  be  committed  by  force  ;  such  as  murder, 
robbery,  house-breaking  in  the  night-time,  rape,  mayhem,  or  any  other 
act  of  felony  against  the  person"  (3  Greenl.  Ev.  115)  ;  and  such  seems 
to  be  the  general  esxpression  of  the  common  law  text  writers.  —  1  Russ. 
Cr.  665-70;  4  Black.  Com.  178-80;  Whart.  Amer.  Cr.  Law,  298-403; 
1  East  P.  C.  271  ;  1  Hale,  P.  C.  488  ;  Foster,  274.  It  is  said  by  the 
authors  of  Cases  on  Self-Defence  that  a  killing  which  "  appears  to  be 
reasonably  necessary  to  prevent  a  forcible  and  atrocious  felony  against 
property,  is  justifiable  homicide."  ''This  rule,"  it  is  added,  "the 
common-law  writers  do  not  extend  to  secret  felonies,  or  felonies  not 
accompanied  with  force,"  although  no  modern  case  can  be  found  ex- 
pressly so  adjudging.  They  further  add  :  "  It  is  pretty  clear  that  the 
right  to  kill  in  defence  of  property  does  not  extend  to  cases  of  larceny, 
which  is  a  crime  of  a  secret  character,  although  the  cases  which  illus- 
trate this  exception  are  generally  cases  of  theft  of  articles  of  small 
value."  — Cases  on  Self-Defence  (Horr.  &  Thomp.),  901-2.  This 
was  settled  in  Reg.  v.  Murphy,  2  Crawf.  &  Dix  C.  C.  20,  where  the 
defendant  was  convicted  of  shooting  one  detected  in  feloniously  carry- 
ing away  fallen  timber  which  he  had  stolen  from  the  premises  of  the 
prosecutor,  the  shooting  being  done  very  clearly  to  prevent  the  act, 
which  was  admitted  to  be  a  felony.  Dohertt,  C.  J.,  said  :  "  I  can  not 
allow  it  to  go  abroad  that  it  is  lawful  to  fire  upon  a  person  committing 
a  trespass  and  larceny;  for  that  would  be  punishing,  perhaps  with 
death,  offences  for  which  the  law  has  provided  milder  penalties."  This 
view  is  supported  by  the  following  cases:  State  v.  Vance,  17  Iowa, 
144  ;  McClelland  v.  Kay,  14  B.  Monroe,  106,  and  others  not  necessary 
to  be  cited.     See  Cases  on  Self-Defence,  p.  901,  note. 

There  is  no  decision  of  this  court,  within  our  knowledge,  which  con- 
flicts with  these  views.  It  is  true  the  rule  has  been  extended  to  statu- 
tory felonies,  as  well  as  felonies  at  common  law,  which  is  doubtless  the 
correct  doctrine,  but  the  cases  adjudged  have  been  open  crimes  com- 
mitted by  force,  and  not  those  of  a  secret  nature.  — Oliver's  case,  17 
Ala.  587;  Carroll's  case,  23  Ala.  28 ;  Dill's  case,  25  Ala.  15. 

In  Pond  V.  The  People,  8  Mich.  150,  after  endorsing  the  rule  which 
we  have  above  stated,  it  was  suggested  by  Campbell,  J.,  that  there 
might  possibly  be  some  "  exceptional  cases"  not  within  its  influence,  a 
proposition  from  which  we  are  not  prepared  to  dissent.  And  again  in 
Gray  v.  Combs,  7  J.  J.  Marsh.  478,  483,  it  was  said  by  Nicholas,  J., 
that  the  right  to  kill  in  order  to  prevent  the  perpetration  of  crime 
should  depend  "  more  upon  the  character  of  the  crime,  and  the  time 
aud   manner  of  its  attempted  perpetration,  than  upon  the  degree  of 

33 


514  STOEEY   V.    STATE.  [CHAP.  VIII. 

punishment  attached  by  law."  There  is  much  reason  in  this  view,  and 
a  strong  case  might  be  presented  of  one's  shooting  a  felon  to  prevent 
the  asportation  of  a  stolen  horse  in  the  night-time,  where  no  opportu- 
nity is  afforded  to  recognize  the  thief,  or  obtain  speedy  redress  at  law. 
Both  the  Roman  and  Athenian  laws  made  this  distinction  in  favor  of 
preventing  the  perpetration  of  theft  by  night,  allowing,  in  each  instance, 
the  thief  to  be  killed  when  necessary,  if  taken  in  the  act.  —  4  Black. 
Com.  180,  181. 

The  alleged  larceny  in  the  present  case,  if  it  occurred  at  all,  was  in 
the  open  daylight,  and  the  defendant  is  not  shown  to  have  been  unable 
to  obtain  his  redress  at  law.  Where  opportunity  is  afforded  to  secure 
the  punishment  of  the  offender  by  due  course  of  law,  the  case  must  be 
an  urgent  one  which  excuses  a  killing  to  prevent  any  felony,  much  less 
one  not  of  a  forcible  or  atrocious  nature. — Whart.  Hom.  §§  536-8. 
"  No  man,  under  the  protection  of  the  law,"  says  Sir  Michael  Foster, 
"is  to  be  the  avenger  of  his  own  wrongs.  If  they  are  of  such  a  nature 
for  which  the  law  of  society  will  give  him  an  adequate  remedy,  thither 
he  ought  to  resort."  —  Foster,  296.  It  is  everywhere  settled  that  the 
law  will  not  justify  a  homicide  which  is  perpetrated  in  resisting  a  mere 
civil  trespass  upon  one's  premises  or  property,  unaccompanied  by  force, 
or  felonious  intent.  —  Carroll's  case,  23  Ala.  28  ;  Clark's  Man.  Cr.  Law, 
§§  355-7 ;  Whart.  on  Hom.  §  540.  The  reason  is  that  the  preservation 
of  human  life  is  of  more  importance  than  the  protection  of  property. 
The  law  may  afford  ample  indemnity  for  the  loss  of  the  one,  while  it 
utterly  fails  to  do  so  for  the  other. 

The  rule  we  have  above  declared  is  the  safer  one,  because  it  better 
comports  with  the  public  tranquillity  and  the  peace  of  society.  The 
establishment  of  any  other  would  lead  to  disorderly  breaches  of  the 
peace  of  an  aggravated  nature,  and  therefore  tend  greatly  to  cheapen 
human  life.  This  is  especially  true  in  view  of  our  legislative  policy 
which  has  recently  brought  many  crimes,  formerly  classed  and  punished 
as  petit  larcenies  within  the  class  of  statutory  felonies.  It  seems  settled 
that  no  distinction  can  be  made  between  statutory  and  common  law 
felonies,  whatever  may  be  the  acknowledged  extent  of  the  rule.  Oliver's 
case,  17  Ala.  587;  Cases  on  Self-Def.  901,  867  ;  Bish.  Stat.  Cr.  §  139. 
The  stealing  of  a  hog,  a  sheep,  or  a  goat  is,  under  our  statute,  a  felony, 
without  regard  to  the  pecuniar}'  value  of  the  animal.  So  would  be  the 
larceny  of  a  single  ear  of  corn,  which  is  "  a  part  of  an}'  outstanding 
crop."  — Code,  §  4358  ;  Acts  1880-81,  p.  47.  It  would  be  shocking  to 
the  good  order  of  government  to  have  it  proclaimed,  with  the  sanction 
of  the  courts,  that  one  maj',  in  the  broad  daylight,  commit  a  wilful 
homicide  in  order  to  prevent  the  larceny  of  an  ear  of  corn.  In  our 
judgment  the  fifth  charge,  requested  by  the  defendant,  was  properly 
refused. 

It  cannot  be  questioned,  however,  that  if  there  was  in  truth  a  larceny 
of  the  prisoner's  horse,  he,  or  any  other  private  person,  had  a  lawful 
right  to  pursue  the  thief  for  the  purpose  of  arresting  him,  and  of  recap- 


SECT.  IV.]  THOMAS  V.   KINKEAD.  515 

turing  the  stolen  property. — Code,  §§  4668-70;  1  Bish.  Cr.  Proc 
§§  164-5.  He  is  not  required,  in  such  case,  to  inform  the  party  flee- 
ing of  his  purpose  to  arrest  him,  as  in  ordinary  cases.  —  Code,  §  4669. 
And  he  could,  if  resisted,  repel  force  with  foi'ce,  and  need  not  give 
back,  or  retreat.  If,  under  such  circumstances,  the  party  making 
resistance  is  unavoidabl}'  killed,  the  homicide  would  be  justifiable.  2 
Bish.  Cr.  Law,  §  647  ;  1  Russ.  Cr.  665 ;  State  v.  Roane,  2  Dev.  58.  If 
the  prisoner's  purpose  was  honestly  to  make  a  pursuit,  he  would  not  for 
this  reason  be  chargeable  with  the  imputation  of  having  wrongfully 
brought  on  the  difficulty;  but  the  law  would  not  permit  him  to  resort  to 
the  pretence  of  pursuit,  as  a  mere  colorable  device,  beneath  which  to 
perpetrate  crime. 


THOMAS   V.  KINKEAD. 

Supreme  Court  of  Arkansas.     1892. 

[Reported  55  Ark.  502.] 

Mansfield,  J.  This  action  was  brought  by  the  widow  and  minor  chil- 
dren of  John  Thotnas,  deceased,  against  Ewing  Kinkead,  a  constable 
of  Pulaski  county,  and  the  sureties  on  his  official  bond,  to  recover 
damages  for  the  alleged  wrongful  killing  of  Thomas  by  Jesse  F.  Heard, 
a  deputy  of  the  defendant  Kinkead  as  such  constable.  Heard  was 
also  made  a  defendant.  The  complaint  avers  that  the  act  of  killing 
was  committed  under  color  of  a  warrant  for  the  arrest  of  Thomas,  to 
answer  for  a  misdemeanor  charged  against  him  before  a  justice  of  the 
peace,  and  that  it  was  done  wantonly  and  without  cause. 

The  defendants  by  their  pleading  justify  the  killing  as  having  been 
done  by  Heard  in  self-defence,  while  lawfully  exercising  his  power  to 
execute  the  warrant  mentioned  in  the  complaint,  and  while  Thomas 
was  unlawfully  resisting  arrest  and  attempting  to  escape.  The  appeal 
is  from  a  judgment  rendered  on  the  verdict  of  a  jury  against  the 
plaintiffs. 

The  death  of  Thomas  resulted  from  a  wound  inflicted  by  a  pistol- 
shot,  and  the  evidence  as  to  the  immediate  circumstances  of  the  homi- 
cide was  such  as  to  make  it  questionable  whether  he  had  been  actually 
placed  under  arrest  before  he  was  shot.  It  was  contended  at  the  trial 
that  his  arrest  had  been  accomplished,  and  that  he  was  killed  while 
attempting  to  break  away  from  the  custody  of  the  officer.  As  appli- 
cable to  this  view  of  the  facts,  the  court,  against  the  objection  of  the 
plaintiffs,  gave  the  jury  the  following  instruction:  "If  the  jury  find 
from  the  evidence  that  Heard  had  actually  arrested  Thomas,  whether 
for  felony  or  misdemeanor,  if  Thomas  attempted  to  get  away,  Heard 
had  a  right  to  shoot  him,  if  this  shooting  was  necessary  to  prevent 


516  THOMAS   V.    KINKEAD.  [CHAP.  VIII. 

his  escape;  provided  Heard  acted  in  the  exercise  of  due  caution  and 
prudence." 

In  repeating  substantially  the  same  charge  in  a  different  connection, 
the  jury  were  told  that  life  can  be  taken  to  prevent  an  escape  only  in 
case  of  extreme  necessity  and  when  the  officer  has  exhausted  all  other 
means  of  enforcing  the  prisoner's  submission.  The  duty  which  the  law 
enjoins  upon  an  officer  to  exercise  his  authority  with  discretion  and 
prudence  was  also  fully  and  properly  stated,  and  the  jury  were  in  effect 
instructed  that  the  needless  killing  of  a  prisoner  would  in  all  cases  be 
wrongful.  In  another  part  of  the  charge  it  was  stated,  as  an  admis- 
sion of  the  pleadings,  that  the  offence  of  which  Thomas  was  accused 
was  a  misdemeanor.  And  in  other  respects  the  charge  of  the  court  was 
such  that  the  plaintiffs  were  not  prejudiced  by  the  instruction  we  have 
quoted,  if  the  life  of  a  prisoner  may  be  taken  under  any  circumstances 
merely  to  prevent  his  escape  after  arrest  for  a  misdemeanor. 

The  doctrine  of  the  court's  charge  is  approved  by  Mr.  Bishop,  who 
states  it  in  his  work  on  Criminal  Procedure  substantially  in  the  lan- 
guage employed  by  the  trial  judge.  1  Bishop,  Cr.  Pro.,  sec.  161.  In 
his  note  on  the  section  cited,  the  author  refers  to  his  work  on  Criminal 
Law  (vol.  2,  sees.  647,  650)  and  to  two  cases  decided  by  the  Supreme 
Court  of  Texas  —  Caldwell  v.  State,  41  Texas,  86,  and  Wright  v.  State, 
44  Texas,  645.  In  the  first  of  these  cases,  a  prisoner  who  had  been 
arrested  for  horse  stealing  broke  away  from  the  custody  of  the  officer, 
and  the  latter  sliot  and  killed  him  as  he  ran  in  the  effort  to  make  his 
escape.  It  was  held  that  the  officer  was  rightly  convicted  of  murder 
in  the  second  degree  —  the  evidence  showing  that  the  prisoner  was 
unarmed,  and  neither  attacking  nor  resisting  the  officer.  The  judge 
who  delivered  the  opinion  said:  "  The  law  places  too  high  an  estimate 
on  a  man's  life,  though  he  be  ...  a  prisoner,  to  permit  an  officer  to 
kill  him  while  unresisting,  simpl}'  to  prevent  an  escape."  But  as  the 
arrest  was  for  a  felony,  it  may  be  that  the  decision  was  controlled  by  a 
statute  of  that  State  which  provides  that  an  "  officer  executing  an  order 
of  arrest  shall  not  in  an\'  case  kill  one  who  attempts  to  escape,  unless 
in  making  or  attempting  such  escape,  the  life  of  the  officer  is  endangered 
or  he  is  threatened  with  great  bodily  injury."  However  that  may  have 
been,  the  case  gives  no  support  to  the  text  in  connection  with  which  it 
is  cited.  Nor  is  such  support  to  be  found  in  the  case  of  Wright  v. 
State,  where  the  decision  was  that  the  power  conferred  by  a  Texas 
statute  upon  an  officer  having  the  custody  of  a  convicted  felon  to  take 
the  life  of  the  prisoner  to  prevent  his  escape  does  not  extend  to  an  officer 
attempting  to  re-arrest  an  escaped  convict. 

The  rule  laid  down  without  qualification  in  "  Criminal  Procedure  "  is 
stated  only  as  "  a  general  proposition  "  in  one  of  the  sections  referred 
to  in  the  work  on  Criminal  Law.  From  the  text  of  the  latter  reference 
is  made  to  the  treatise  of  Russell  on  Crimes  and  to  the  earlier  works  of 
Hale  and  Hawkins.  But  these  writers  all  appear  to  limit  the  applica- 
tion of  the  rule  to  cases  of  felony  or  to  cases  where  the  jailer  or  other 


SECT.  IV.]  THOMAS   V.   KINKEAD.  517 

officer  having  the  custody  of  a  prisoner  is  assaulted  by  the  latter  in  his 
effort  to  escape  and  the  officer  kills  hira  in  self-defence.  1  Hale,  P.  C. 
481,  496  ;  1  Russell  on  Crimes,  666,  667  ;  1  Hawkins,  P.  C.  81,  82. 
The  decisions  cited  by  Mr.  Bishop  in  the  section  last  referred  to,  as  far 
as  we  have  had  the  opportunity  to  examine  them,  go  no  further  than  the 
authors  we  have  mentioned.  U.  S.  v.  Jailer,  etc.,  2  Abb.  265  ;  State 
V.  Anderson,  1  Hill,  S.  B.  327 ;  Regina  v.  Dadson,  14  Jur.  1051.  See 
also  4  Blackstone,  180. 

The  case  of  State  v.  Sigman,  106  N.  C.  728  ;  S.  C.  11  S.  E.  Rep. 
520,  is  relied  upon  as  sustaining  the  instruction  in  question.  In  that 
case  an  officer  was  indicted  for  an  assault  with  a  deadly  weapon,  com- 
mitted by  discharging  a  pistol  at  a  person  accused  of  a  misdemeanor, 
and  who  had  escaped  from  the  officer's  custody  and  was  fleeing  to  avoid 
re-arrest.  The  officer  being  unable  to  overtake  the  prisoner  fired  upon 
him.  He  was  convicted  and  the  judgment  of  the  trial  court  was  af- 
firmed, the  Supreme  Court  holding  that  the  defendant  was  guilty  of  an 
assault,  whether  his  intention  in  firing  was  to  hit  the  escaped  prisoner 
or  simply  to  intimidate  him  and  thereby  induce  him  to  surrender.  This 
rulino-  followed  as  a  conclusion  from  two  propositions  stated  in  the 
opinion.  These  are:  (1)  That  an  officer  who  kills  a  person  charged 
with  a  misdemeanor  and  fleeing  from  him  to  avoid  arrest  will  at  least 
be  guilty  of  manslaughter.  (2)  That  where  a  prisoner  "  has  already 
escaped,"  no  means  can  be  used  to  re-capture  him  which  would  not  have 
been  justifiable  in  making  the  first  arrest ;  and  that  if  in  pursuing  him 
the  officer  intentionally  kills  him,  it  is  murder.  But  the  second  proposi- 
tion is  preceded  by  the  following  paragraph  of  the  opinion  upon  which 
the  appellees  specially  rely:  "After  an  accused  person  has  been 
arrested,  an  officer  is  justified  to  detain  him  in  custody,  and  he  may 
kill  his  prisoner  to  prevent  his  escape,  provided  it  becomes  necessary, 
whether  he  be  charged  with  a  felony  or  a  misdemeanor."  Citing  the 
first  volume  of  Bishop's  Criminal  Procedure.  The  view  thus  expressed 
does  not  appear  to  be  consistent  with  the  court's  decision.  Nor  does  it 
seem  to  be  an  unquaUfied  approval  of  the  rule  as  it  is  stated  in  Bishop's 
Criminal  Procedure.  As  stated  in  the  quotation  made,  it  seems  to  be 
laid  down  with  reference  only  to  cases  where  a  prisoner  resists  by  force 
the  effort  of  the  officer  to  prevent  him  from  "  breaking  away  "  and  is 
killed  in  the  struggle  or  affray  which  follows.  In  the  case  then  before 
the  court  the  prisoner  had  entirely  escaped ;  and  having  been  subse- 
quently found,  had  run  some  distance  before  he  was  shot  at.  There 
was  no  occasion  therefore  for  deciding  whether  the  shooting,  although 
not  in  self-defence,  would  have  been  justifiable  if  it  had  been  done  in  an 
effort  to  detain  the  prisoner  in  the  officer's  custody.  But  we  are  wholly 
unable  to  perceive  any  ground  for  a  distinction  between  the  latter  case 
and  that  on  which  the  court's  ruling  was  made.  In  a  paragraph  of  the 
opinion  preceding  that  from  which  we  have  quoted,  in  speaking  of 
the  case  of  one  who,  being  charged  with  a  misdemeanor,  flees  from 
the  officer  to  avoid  arrest,  the  court  said:  "The  accused  is  shielded, 


518  THOMAS   V.    KINKEAD.  [CHAP.  VIIL 

.  .  .  even  from  an  attempt  to  kill,  .  .  .  by  the  merciful  rule  which 
forbids  the  risk  of  human  life  or  the  shedding  of  blood  in  order  to  bring 
to  justice  one  who  is  charged  with  so  trivial  an  offence,  when  it  is  prob- 
able that  he  can  be  arrested  another  day  and  held  to  answer."  This 
humane  principle  was  permitted  to  prevail  against  the  officer  in  the 
case  decided,  although  the  person  assaulted  had  been  arrested  and  was 
shot  at  in  the  endeavor  made  to  re-arrest  him.  Why  should  it  not 
also  protect  the  life  of  the  prisoner  arrested  on  a  similar  charge  who 
endeavors  forcibly  to  break  away  from  the  officer  but  offers  no  violence 
to  the  latter  endangering  his  life  or  exposing  his  person  to  great 
harm? 

The  case  of  Head  v.  Martin,  3  S.  W.  Rep.  (Ky.)  622,  is  also  cited  by 
the  appellees.  But  the  only  ruling  there  made,  as  indicated  by  the 
syllabus,  was  that  a  peace  officer,  having  arrested  one  accused  of  a 
misdemeanor,  cannot,  when  he  is  fleeing,  kill  him  to  prevent  his  escape  ; 
and  all  that  the  court  says  is  strongly  against  the  contention  of  the  ap- 
pellee on  the  point  we  are  considering.  On  the  point  embraced  in  the 
quotation  of  counsel  from  the  opinion,  in  that  case,  the  jury  in  the 
present  case  were  properly  charged  by  instructions  other  than  that  now 
under  consideration.  The  only  question  presented  by  the  latter  is 
whether  an  officer  having  in  his  custody  a  prisoner  accused  of  a  misde- 
meanor may  take  his  life  if  he  attempts  to  break  away,  where,  in  the 
language  of  the  court's  charge,  ^'  no  other  means  are  available  "  to 
prevent  his  escape.  A  resort  to  a  measure  so  extreme  in  cases  of  mi.s- 
demeanor  was  never  permitted  by  the  common  law.  1  P^ast,  P.  C.  302. 
That  law  has  not,  it  is  believed,  lost  any  of  its  humanity  since  the  time 
of  the  writer  we  have  just  cited ;  and  no  statute  of  this  State  operates 
to  restrain  its  mercy.  We  have  adopted  its  rule  in  making  arrests  in 
cases  of  felony.  (Carr  v.  The  State,  43  Ark.  99.)  But  without  legis- 
lative authority  the  severity  of  a  remote  age  ought  not  to  be  exceeded 
in  dealing  with  those  who  are  accused  of  smaller  offences. 

East,  in  his  Pleas  of  the  Crown,  after  stating  the  rule  that  a  felon 
fleeing  from  justice  may  be  lawfully  killed  "  where  he  cannot  be  other- 
wise overtaken,"  says:  "  The  same  rule  holds  if  a  felon  after  arrest 
break  away  as  he  is  carrying  to  gaol,  and  his  pursuers  cannot  retake 
without  killing  him.  But  if  he  may  be  taken  in  any  case  without  such 
severity,  it  is  at  least  manslaughter  in  him  who  kills  him."  (1  East, 
P.  C.  298.)  No  distinction,  it  will  be  noticed,  is  made  between  the 
case  of  a  felon  fleeing  from  arrest  and  that  of  one  "  breaking  awa}- " 
after  arrest;  and  such  is  still  the  law.  No  reason  whatever  is  given 
for  making  such  a  distinction  in  cases  of  misdemeanor,  and  we  have 
found  no  adjudged  case  which  in  our  opinion  supports  it.  See  Clem- 
ments  v.  State,  50  Ala.  117 ;  Head  v.  Martin,  3  S.  W.  supra;  Reneau 
V.  State,  2  Lea,  720. 

In  United  States  v.  Clark,  31  Fed.  Rep.  710,  Mr.  Justice  Brown 
says :  "  The  general  rule  is  well  settled,  by  eleraentar}'  writers  upon 
criminal  law,  that  an  officer  having  custody'  of  a  person  charged  with 


SECT.  IV.]  THOMAS   V.   KINKEAD.  519 

felony  may  take  his  life,  if  it  becomes  absolutely  necessary  to  do  so  to 
prevent  his  escape;  but  he  may  not  do  this  if  he  be  charged  simply  with 
-a  misdemeanor,  the  theory  of  the  law  being  that  it  is  better  that  a  mis- 
demeanant escape  than  that  human  life  be  taken."  And  he  expresses 
a  doubt  whether  the  law  permitting  life  to  be  taken  to  prevent  an  escape 
is  applicable  at  the  present  day  even  to  all  cases  of  felony.  (See  also 
State  V.  Bryant,  65  N.  C.  355)  ;  Reneau  v.  State,  2  Lea,  supra. 

It  has  been  said  that  the  officers  of  the  law  are  "  clothed  with  its 
sanctit}'  "  and  "  represent  its  majest}'."  Head  v.  Martin,  3  S.  W.  Rep. 
623.  And  the  criminal  code  has  provided  for  the  punishment  of  those 
who  resist  or  assault  them  when  engaged  in  the  discharge  of  their 
duties.  Mansf.  Dig.,  sees.  1765-67.  But  the  law-making  power 
itself  could  not,  under  the  constitution,  inflict  the  death  penalty 
as  a  punishment  for  a  simple  misdemeanor.  (Art.  2,  sec.  9,  const.) 
And  it  would  ill  become  the  "  majesty  "  of  the  law  to  sacrifice  a  human 
life  to  avoid  a  failure  of  justice  in  the  case  of  a  petty  offender  who  is 
often  brought  into  court  without  arrest  and  dismissed  with  a  nominal 
fine.  It  is  admitted  that  an  officer  cannot  lawfully  kill  one  who  merel}' 
flees  to  avoid  arrest  for  a  misdemeanor,  although  it  may  appear  that  he 
can  never  be  taken  otherwise.  If  he  runs,  then,  before  the  officer  has 
laid  his  hands  upon  him  with  words  of  arrest,  he  may  do  so  without 
danger  to  his  life.  But  if,  b}'  surprise  or  otherwise,  he  be  for  a  moment 
sufficiently  restrained  to  constitute  an  arrest  and  then  "break  away," 
the  officer  ma}'  kill  him  if  he  cannot  overtake  him.  Such  is  the  effect 
of  the  argument  and  of  the  rule  in  support  of  which  it  is  made.  We 
can  see  no  principle  of  reason  or  justice  on  which  such  a  distinction  can 
rest,  and  we  therefore  hold  that  the  force  or  violence  which  an  officer 
may  lawfully  use  to  prevent  the  escape  of  a  person  arrested  for  a  mis- 
demeanor is  no  greater  than  such  as  might  have  been  rightfully  employed 
to  effect  his  arrest.  In  making  the  arrest  or  preventing  the  escape,  the 
officer  may  exert  such  physical  force  as  is  necessary  on  the  one  hand 
to  effect  the  arrest  by  overcoming  the  resistance  he  encounters,  or  on 
the  other  to  subdue  the  efforts  of  the  prisoner  to  escape  ;  but  he  can- 
not in  either  case  take  the  life  of  the  accused,  or  even  inflict  upon  him 
a  great  bodily  harm,  except  to  save  his  own  life  or  to  prevent  a  like 
harm  to  himself. 

The  circuit  court  erred  in  so  much  of  its  charge  as  was  not  in  har- 
mon}'  with  this  statement  of  the  law.  In  other  respects  the  instructions 
contain  no  error  prejudicial  to  the  appellant.  For  the  error  indicated 
the  judgment  will  be  reversed,  and  the  cause  remanded  for  a  new 
trial. 


I 


520 


THE  BRIG   WILLIAM   GRAY.  [CHAP.  VIIL 


SECTION  V. 

Necessity. 


KEGINA  V.  BAMBER. 
Queen's  Bench.     1843. 

[Reported  5  Queen's  Bench,  279.] 

Lord  Denman,  C.  J.'  I  think  the  defendant  below  is  entitled  to 
judgment.  Both  the  road  which  the  defendant  is  charged  with  liability' 
to  repair  and  the  land  over  which  it  passes  are  washed  away  by  the 
sea.  To  restore  the  road,  as  he  is  required  to  do,  he  must  create  a 
part  of  the  earth  anew.  I  do  not  rely  much  upon  the  argument  that 
the  ancient  hne  of  highway  has  been  removed.  But  here  all  the  mate- 
rials of  which  a  road  could  be  made  have  been  swept  away  by  the  act 
of  God.  Under  those  circumstances  can  the  defendant  be  liable  for 
not  repairing  the  road?  We  want  an  authority  for  such  a  proposition, 
and  none  has  been  found. 


THE   BRIG   WILLIAM  GRAY. 

Circuit  Court  of  the  United  States.     1810. 
[Reported  1  Paine,  16.] 

Livingston,  J.  In  defence  of  the  libel  filed  against  this  vessel  for 
proceeding  from  the  United  States  to  the  island  of  Antigua,  contrary 
to  the  act  laying  an  embargo,  and  the  first  act  in  addition  thereto,  the 
claimant  alleges  that  while  on  a  voyage  from  Alexandria  to  Boston, 
she  was  driven  by  storms,  tempests,  stress  of  weather,  and  necessity, 
out  of  her  course,  and  forced  to  proceed  to  that  island  for  her  own 
preservation  and  that  of  the  cargo,  and  of  the  lives  of  the  persons  on 
board. 

Both  the  fact  and  the  legal  consequences  deduced  from  it  by  the 
appellant  are  denied  by  the  counsel  for  the  United  States. 

In  looking  at  the  testimony,  it  cannot  be  denied  that  there  is  every 
reason  to  believe  that  the  real  destination  of  the  William  Gray  was 
Boston.  Two  witnesses  swear  to  this  fact  positive]}',  and  she  had  actu- 
ally arrived  at  Martha's  Vineyard  on  that  voyage.  Why  it  was  not 
completed  is  very  minutely  accounted  for.     An  attempt  was  made  to 

1  The  opiuiou  only  is  given  ;  it  sufficiently  states  the  case. 


SECT,  v.]  THE   BRIG   WILLIAM   GRAY.  521 

reach  Boston,  but  the  inclemency  of  the  season,  the  frozen  and  muti- 
lated condition  of  several  of  the  hands,  and  the  wrecked  state  of  the 
brig,  are  assigned  as  reasons  for  not  being  able  to  effect  this  purpose. 
In  this  state  of  things  it  appears  to  have  been  unanimously  thought 
necessary  for  the  preservation  of  life,  and  on  the  advice  of  the  pilot,  to 
bear  away  for  the  West  Indies,  it  being  deemed  impossible  to  return 
to  any  port  on  the  continent  of  America.  What  the  pilot  advised  to  be 
done  is  a  matter  of  fact,  and  may  be  proved  as  such  by  any  witness. 
Such  advice  or  conduct  on  his  part  cannot  be  classed,  as  has  been  done, 
with  hearsay  testimony.  To  this  body  of  evidence  the  Court  is  desired 
to  oi»pose  its  own  opinion  as  to  the  practicability  of  arriving  at  some 
one  or  other  port  within  the  United  States.  It  is  certain  that  a  story 
may  be  so  very  improbable  that  although  attested  to  by  more  than  one 
credible  witness,  no  one  would  be  bound  to  believe  it.  But  this  is  not 
of  that  description,  although  it  does  appear  to  the  Court  somewhat 
extraordinary  that  a  vessel  so  near  the  continent,  and  in  so  high  a  lati- 
tude, should  not  be  able  to  make  some  part  of  it ;  yet,  for  aught  it  can 
know  to  the  contrary,  vessels  quite  as  near,  if  not  nearer,  may  have 
been  blown  off  in  the  winter  season,  especially  if  in  a  shattered  order, 
to  the  West  Indies.  It  would,  therefore,  be  unpardonable  in  either  a 
jury  or  a  Court,  merely  because  a  fact  appears  somewhat  improbable, 
to  disregard  the  evidence  establishing  it,  and  to  decide  in  conformity 
with  its  own  opinion,  unassisted  by  that  of  professional  men,  in  the  face 
of  all  the  proofs  in  the  cause. 

In  the  judgment  of  this  Court,  then,  the  alleged  necessity  is  suffi- 
ciently made  out.  Whether  it  takes  the  case  out  of  the  statute  is  next 
to  be  considered.  Were  this  res  Integra,  the  very  able  argument  on 
behalf  of  the  United  States  would  be  entitled  to  the  most  respectful 
consideration.  It  is  perhaps  to  be  lamented  that  judges  ever  permitted 
themselves  to  make  any  exceptions  to  an  act  which  the  legislature 
itself  had  not  thought  proper  to  incorporate  within  the  body  of  it.  The 
latitude  which  has  been  assumed  in  this  way  has  very  much  added  to 
the  uncertainty  of  the  written  law  of  the  land,  and  produced  much  liti- 
gation, which  a  firm  adherence  to  its  letter  would  have  prevented.  But 
it  is  too  late  for  speculations  of  this  kind.  Their  only  use  can  be  to 
make  Courts  careful,  and  they  cannot  be  too  much  so,  never  to  depart, 
under  the  idea  of  preventing  a  particular  hardship,  from  the  plain  and 
obvious  meaning  of  the  legislature.  This  restriction,  which  every  judge 
should  impose  on  himself,  is  not  transcended  when,  in  the  interpreta- 
tion of  penal  statutes,  any  principle  is  applied  whi(;h  is  found  in  every 
code  of  laws,  divine  or  human,  and  has  from  time  immemorial  been 
ingrafted  into  the  common  law  of  the  country,  from  which  our  jurispru- 
dence is  borrowed.  Where  such  rules  or  principles  exist  and  have 
invariably  and  on  all  occasions  governed  Courts  in  the  administration  of 
criminal  justice,  they  become  as  much  a  part  of  the  law,  and  are  as 
obligatory  on  a  Court  as  the  statute  which  it  may  be  called  on  to  ex- 
pound.    Of  this  kind  is  the  one  of  which  the  appellants  now  claim  the 


522  COMMONWEALTH   V.   BKOOKS.  [CHAP.  VIII. 

benefit;  that  the  concurrence  of  the  will  in  what  is  done,  where  it  has 
a  choice,  is  the  only  thing  that  renders  a  human  action  culpable,  or,  in 
other  words,  that  to  make  a  complete  oflPence  there  must  be  both  a  will 
and  an  act.  This  axiom,  as  it  may  be  termed,  is  applied  as  well  to 
offences  created  by  statute  as  to  those  which  are  such  at  common  law. 
The  variety  of  cases  in  which  this  absence  of  will  excuses  those  who 
would  otherwise  be  offenders  have  been  mentioned  in  the  course  of  the 
argument,  and  among  them  we  find  that  on  which  this  defence  pro- 
ceeds, namely,  an  act  which  proceeds  from  compulsion  and  inevitable 
necessity.  Whether  the  legislature  might  not  by  apt  words  punish  an 
act  taking  place  under  such  circumstances  is  foreign  from  the  present 
inquiry;  but  where  this  is  not  done  in  terms,  they  are  supposed  to 
know  "that,  by  the  rules  of  the  common  law,  it  is  always  considered  as 
excepted,  and  therefore  do  not  make  the  exception  themselves.  The 
cases  which  have  been  produced  by  the  appellant  are  as  strong  and 
conclusive  as  perhaps  were  ever  submitted  to  a  Court  in  support  of  any 
proposition  of  law.  If  the  necessity  which  leaves  no  alternative  but 
the  violation  of  law  to  preserve  life  be  allowed  as  an  excuse  for  com- 
mitting what  would  otherwise  be  high  treason,  parricide,  murder,  or 
any  other  of  the  higher  crimes,  why  should  it  not  render  venial  an 
oflfence  which  is  only  tnalum  prohibitum,  and  the  commission  of  which 
is  attended  with  no  personal  injury  to  another.  The  Court,  therefore, 
cannot  but  yield  to  the  weight  of  so  many  authorities,  especially,  too, 
when  every  decision  accords  with  reason,  common  sense,  and  the  feel- 
ings of  mankind,  which  are  universal  and  indelible. 

But  is  it  so  very  clear  that  the  law  itself  does  not  make  the  excep- 
tion? The  Court  is  inclined  to  think  that,  on  a  fair  comparison  of  the 
different  acts  with  each  other,  this  will  be  found  to  be  done.  The  leg- 
islature, by  some  of  the  provisions  of  the  enforcing  law,  as  it  is  called, 
certainly  appear  to  have  been  of  the  same  opinion. 

The  Court,  therefore,  thinks  that  the  necessity  which  is  proved  to 
have  existed  excused  the  party  from  all  guilt,  and  of  course  from  the 
forfeiture  which  is  sought;  and  that  none  having  accrued,  it  is  not 
among  those  cases  which  are  referred  for  mitigation  to  the  Secretary  of 
the  Treasury. 

The  sentence  of  the  District  Court  must  accordingly  be  reversed. 


COMMONWEALTH   v.   BROOKS. 
Supreme  Judicial  Court  of  Massachusetts.     1868. 

[Reported  99  Massachusetts,  434.] 

Complaint  for  the  violation  of  s.  34  of  an  ordinance  of  the  city  of 
Boston  relating  to  carriages,  which  section  is  printed  in  the  margin. 

1  "  No  owner,  driver,  or  other  person  having  the  care  or  ordering  of  any  chaise, 
carryall,  hackney  carriage,  truck,  cart,  waggon,  handcart,  sleigh,  sled,  haudsled,  or  any 


SECT,  v.]  COMMONWEALTH   V.  BROOKS.  623 

(Laws  and  Ordinances  of  Boston,  ed.  1863,  p.  106)  in  suffering  the 
defendant's  wagon  to  stop  in  South  Market  Street  in  Boston  more 
than  twenty  minutes.^ 

Gray,  J.  It  is  very  clear  that  the  defendant  was  not  proved  to  have 
violated  the  city  ordinance  on  which  he  was  prosecuted.  No  person 
transgresses  the  ordinance,  who  does  not  voluntarily  suffer  his  vehicle 
to  stop  in  the  street  for  more  than  twenty  minutes.  The  defendant, 
indeed,  drove  into  South  Market  Street  more  than  twenty  minutes 
before  four  o'clock,  and  intended  to  remain  in  that  street  until  four 
o'clock.  But  he  had  the  right  to  travel  in  the  street,  if  he  did  not  volun- 
tarily suffer  his  vehicle  to  stop  in  it  for  the  prohibited  period.  If  he 
had  arrived  on  his  stand  more  than  twenty  minutes  before  four  o'clock 
and  voluntarily  remained  there  with  his  wagon  until  that  hour,  or  if  he 
had  voluntarily  stopped  his  wagon  for  more  than  twenty  minutes  at 
any  other  place  in  the  street,  it  would  have  been  a  violation  of  the 
ordinance.  So,  perhaps,  if  he  had  stopped  for  more  than  twenty 
minutes  in  all  in  two  places  near  each  other,  in  the  execution  of  one 
purpose.  But  it  is  unnecessary  in  this  case  to  consider  under  what 
circumstances  repeated  intermissions  of  travel,  or  time  spent  in  driving 
about  the  street  without  intention  of  moving  onward  towards  a  par- 
ticular destination,  might  be  treated  as  going  to  make  up  one  stopping, 
within  the  meaning  of  the  ordinance  ;  for  it  appears  that  the  defend- 
ant, while  driving  his  wagon  through  the  street  towards  his  stand,  was 
delayed  by  the  crowding  of  other  vehicles  which  he  could  not  control 
for  five  or  six  minutes,  and  then  drove  on  and  occupied  his  stand.  He 
did  not  voluntarily  stop  at  all  before  arriving  at  his  stand  ;  he  did  not 
stop  on  his  stand  but  fifteen  minutes  before  four  o'clock ;  and  after 
four  o'clock,  being  a  marketman,  engaged  in  bringing  vegetables  into 
the  city  and  selling  them  from  his  wagon  at  a  stand  occupied  by  him 
within  the  established  limits  of  the  market,  though  in  a  public  street, 
he  is  admitted  to  have  had  a  right,  by  virtue  of  the  exception  in  the 
ordinance,  and  of  the  St.  of  1859,  c.  211,  to  be  and  remain  upon  his 
stand  with  his  wagon.  New  trial  ordered. 

other  vehicle  whatsoever,  new  or  old,  finished  or  unfinished,  with  or  without  a  horse 
or  horses,  or  other  animal  or  animals  harnessed  thereto,  shall  suffer  the  same  to  stop 
in  any  street,  square,  lane,  or  alley  of  this  city  more  than  five  minutes,  without  some 
proper  person  to  take  care  of  the  same,  or  more  than  twenty  minutes  in  any  case  ;  and 
any  person  so  offending  shall  be  liable  to  a  fine  of  not  less  than  three,  nor  more  than 
twenty  dollars  for  each  offence.  But  this  section  shall  not  apply  to  the  carriages  of 
physicians  while  visiting  the  sick,  or  to  the  vehicles  of  market  and  provision  men,  who 
may  stand  with  the  same,  without  the  limits  of  Faneuil  Hall  Market,  until  eleven 
o'clock  in  the  forenoon,  at  such  places  in  tlie  city  as  the  board  of  aldermen  may  desig- 
nate, for  the  purpose  of  vending  provisions." 
1  The  evidence  is  omitted. 


EEGINA  V.  RANDALL. 


[chap.  VIII. 


SECTION  VI. 
Public  Benefit. 

C\  c-  ^ 

REGINA  V.  RANDALL. 

Winchester  Assizes.     1842. 

[Reported  Car.  ^  M.   496.] 

Indictment  for  a  nuisance  in  building  and  continuing  a  wharf  in  the 
navigable  river  Itcheu.     Plea,  not  guilty. 

For  the  prosecution,  it  was  proved  that  the  wharf  was  built  between 
high  and  low  water-mark,  and  projected  over  a  portion  of  the  river  on 
which  boats  formerl}'  passed. 

For  the  defence,  it  was  shown  that,  before  the  erection  of  the  wharf, 
there  was  no  means  of  unloading  trading  vessels  in  the  river,  except  by 
liofhtening  them  in  the  middle  of  the  stream,  and  then  getting  them  at 
high  water  on  to  the  mud  between  high  and  low  water-mark.  Since  the 
erection  of  the  wharf  in  question  such  vessels  had  been  unloaded  at  it, 
and  thus  the  centre  of  the  river  was  kept  clear,  and  the  general  navi- 
gation improved. 

It  was  contended  for  the  prosecution  that,  in  point  of  law,  the  ver- 
dict must  be  for  the  crown,  if  the  jury  should  find  that  the  wharf 
covered  any  part  of  the  soil  of  the  river  over  which  boats  formerly 
navigated.  For  the  defendant,  it  was  urged  that,  although  the  wharf 
covered  a  portion  of  the  river  over  which  boats  formerly  went,  yet,  that 
it  was  for  the  jury  to  say  whether  in  fact  any  sensible  nuisance  or  im- 
pediment to  the  navigation  of  the  river  by  the  public  had  been  occa- 
sioned by  the  act  of  the  defendant;  and  that,  in  coming  to  their 
conclusion,  the  jury  were  justified  in  taking  into  consideration  the  effect 
produced  by  the  building  and  use  of  the  wharf  in  keeping  clear  the 
channel  of  the  river.  The  cases  of  Rex  ?'.  Russell,  6  B.  &  C.  566  ; 
Rex  V.  Ward,  4  A.  &  E.  384;  and  Rex  v.  Tindall,  6  A.  &  E.  143, 
were  cited. 

WiGHTMAN,  J.  (in  summing  up),  left  it  to  the  jury  to  saj'  whether 
the  wharf  itself  occasioned  any  hinderance  or  impediment  whatever  to 
the  navigation  of  the  river  by  any  description  of  vessels  or  boats ;  and 
told  them  that  they  were  not  to  take  into  their  consideration  the  cir- 
cumstance that  a  benefit  had  resulted  to  the  general  navigation  of  the 
river  by  the  mid-channel  being  kept  clear,  as  proved  by  the  defendant's 
witnesses. 

The  jury,  however,  could  not  agree  upon  their  verdict ;  and,  after 
being  locked  up  throughout  the  night,  were  discharged. 


SECT.  VI.]  STATE   V.   WRAY.  525 


STATE  V.  WRAY. 
Supreme  Court  of  North  Carolina.    1875. 

[Reported  72  North  Carolina,  253.] 

Settle,  J.  The  defendants  being  indicted  for  retailing  spirituous 
liquors  without  a  license  so  to  do,  the  jury  rendered  the  following 
special  verdict:  "The  defendants  were  druggists  and  partners  in  the 
town  of  Shelby,  and  kept  medicines  for  sale,  but  had  no  license  to 
retail  spirituous  liquors.  In  the  month  of  July,  1872,  Dr.  O.  P.  Gardner, 
a  practising  physician  in  the  town  of  Shelby,  prescribed  the  use  of  a 
half-pint  of  French  brandy  for  Mrs.  Durham,  the  wife  of  the  witness, 
Hill  Durham,  and  directed  the  witness  to  go  to  the  defendants  for  it. 
That  Dr.  Gardner  also  went  to  the  defendants  and  directed  them  to 
let  the  witness  have  the  said  brandy  for  his  wife  as  medicine.  The 
witness  then  went  to  the  defendants  and  purchased  the  half-pint  of 
French  brandy,  and  his  wife  used  it  as  medicine.  That  French  brandy 
is  a  spirituous  liquor ;  that  it  is  also  an  essential  medicine,  frequently 
prescribed  by  physicians,  and  often  used,  and  that  in  this  case  it  was 
bought  in  good  faith  as  a  medicine,  and  was  used  as  such." 

The  letter  of  the  law  has  been  broken,  but  has  the  spirit  of  the  law 
been  violated?  The  question  here  presented  has  been  much  discussed, 
but  it  has  not  received  the  same  judicial  determination  in  all  the  States 
in  which  it  has  arisen.  In  this  conflict  of  authority  we  shall  remember 
that  the  reason  of  the  law  is  the  life  of  the  law,  and  when  one  stops 
the  other  should  also  stop. 

What  was  the  evil  sought  to  be  remedied  by  our  statute  ?  Evidently 
the  abusive  use  of  spirituous  liquors,  keeping  in  view  at  the  same  time 
the  revenues  of  the  State.  The  special  verdict  is  very  minute  in  its 
details,  and  makes  as  strong  a  case  for  the  defendants  as  perhaps  will 
ever  find  its  way  into  court  again.  A  physician  prescribes  the  brandy 
as  a  medicine  for  a  sick  lady,  and  directs  her  husband  to  get  it  from 
the  defendants,  who  are  druggists.  It  may  be  that  a  pure  article  of 
brandy,  such  as  the  physician  was  willing  to  administer  as  a  medicine, 
was  not  to  be  obtained  elsewhere  than  at  the  defendants'  drugstore. 
The  doctor  himself  goes  to  the  defendants  and  directs  them  to  let  the 
witness  have  the  brandy  as  a  medicine  for  his  wife.  And  the  further 
fact  is  found,  which  perhaps  might  have  been  assumed  without  the  find- 
ing, that  French  brandy  is  an  essential  medicine,  frequently  prescribed 
by  physicians  and  often  used  ;  and  the  farther  and  very  important  fact 
is  established,  that  in  this  case  it  was  bought  in  good  faith  as  a  medi- 
cine, and  was  used  as  such.  After  this  verdict  we  cannot  doubt  that 
the  defendants  acted  in  good  faith  and  with  due  caution,  in  the  sale 
which  is  alleged  to  be  a  violation  of  law. 

In  favor  of  defendants,  criminal  statutes  are  both  contracted  and 


526  EEX   V.  EONKETT.  [CHAP.  VIII. 

expanded.  1  Bishop,  par.  261.  Now  unless  this  sale  comes  within 
the  mischief  which  the  statute  was  intended  to  suppress,  the  defend- 
ants are  not  guilty ;  for  it  is  a  principle  of  the  common  law  that  no 
one  shall  suffer  criminally  for  an  act  in  which  his  mind  does  not  con- 
cur. The  familiar  instance  given  by  Blackstone  illustrates  our  case 
better  than  I  can  do  by  argument.  The  Bolognian  law  enacted  "that 
whosoever  drew  blood  in  tlie  street,  should  be  punished  with  the  utmost 
severity."  A  person  fell  down  in  the  street  with  a  fit,  and  a  surgeon 
opened  a  vein  and  drew  blood  in  the  street.  Here  was  a  clear  viola- 
tion of  the  letter  of  the  law,  and  yet  from  that  day  to  this,  it  has  never 
been  considered  a  violation  of  the  spirit  of  the  law.  Perhaps  it  will 
give  us  a  clearer  view  of  the  case  if  we  put  the  druggist  out  of  the 
question,  and  suppose  that  the  physician  himself,  in  the  exercise  of 
his  professional  skill  and  judgment,  had  furnished  the  liquor  in  good 
faith  as  a  medicine.  Can  it  be  pretended  that  he  would  be  any  more 
guilty  of  a  violation  of  our  statute,  than  the  surgeon  was  guilty  of  a 
violation  of  the  Bolognian  law?    We  think  not. 

But  we  would  not  have  it  understood  that  physicians  and  druggists 
are  to  be  protected  in  an  abuse  of  the  privilege.  They  are  not  only 
prohibited  from  selling  liquor  in  the  ordinary  course  of  business,  but 
also  from  administering  it  as  a  medicine  unless  it  be  done  in  good 
faith,  and  after  the  exercise  of  due  caution  as  to  its  necessity  as  a 
medicine.  The  sale  of  liquor  without  a  license,  in  quantities  less  than 
a  quart,  is  prima  facie  unlawful,  and  it  is  incumbent  upon  one  who 
does  so  sell  to  show  that  it  was  done  under  circumstances  which  ren- 
der it  lawful.  In  this  case  we  think  such  circumstances  have  been 
shown,  and  we  concur  in  the  judgment  of  his  honor,  that  the  defend- 
ants are  not  guilty. 

Per  Curiam.  Judgment  affirmed. 


REX  V.  RONKETT. 

King's  Bench.     160T. 

[Manuscript  A1 

One  John  Ronkett  was  indicted  in  pais  for  that  he  had  made 
candles  within  the  vill  of  Bury,  whereby  he  had  caused  such  a  noisome 
smell  that  it  was  to  the  nuisance  of  the  inhabitants  of  said  vill,  and 
dangerous  by  reason  of  infection. 

1  S.  C.  2  Roll.  Abr.  139,  Ranketf  s  Case.  —  Ed. 


SECT.  VI.]  COMMONWEALTH  V.  MILLER.  527 

The  indictment  was  held  insufficient  by  all  the  Court.  For  candles 
are  a  necessarj'  commodity,  without  which  people  cannot  well  live  ;  and 
though  it  be  noisome  in  smell,  still  since  it  is  needful  for  the  common- 
wealth it  shall  be  suffered.  But  in  boroughs  and  cities  the  corporation 
ma}'  well  make  ordinances  that  such  noisome  trades  shall  be  in  some 
other  part  of  the  town.  But  if  a  butcher  or  chandler  or  other  such 
necessary  trader  allow  his  filth  to  remain,  to  the  nuisance  of  the  inhabi- 
tants, action  on  the  case  lies,  or  indictment  for  the  nuisance ;  for  this 
is  the  fault  of  the  butcher  or  chandler  and  not  of  the  trade,  because  he 
does  not  avoid  it  as  he  well  may.  And  the  indictment  was  adjudged 
void.^ 


COMMONWEALTH   v.    MILLER. 
Supreme  Court  of  Pennsylvania.     1890. 

[Reported  139  Pa.  77.] 

Williams,  J.^  The  defendants  own  and  operate  a  refinery  where 
crude  petroleum  and  its  products  are  prepared  for  market.  There  are 
four  acres  within  the  enclosure  fronting  on  the  Ohio  river.  The  Pitts- 
burgh &  Western  Railroad  passes  in  front  of  it,  along  the  river's  edge. 
The  Cleveland  &  Pittsburgh  Railroad  runs  upon  the  street  directly  in 
the  rear.  The  city  of  Allegheny,  like  its  sister  city  Pittsburgh,  owes 
its  growth  and  prosperity  to  the  extent  of  its  manufacturing  interests, 
and  the  river  front  is  almost  wholly  given  over  to  these  great  industries. 
The  indictment  charges  that  the  defendants'  refinery  is  a  public  and 
common  nuisance,  because  of  the  emission  therefrom  of  certain  noxious 
and  offensive  smells  and  vapors,  and  because  the  oils  and  gases  stored 
and  used  therein  are  inflammable,  explosive,  and  dangerous.  The  jury, 
under  the  instructions  of  the  court,  found  the  defendants  guilty,  and 
the  sentence  which  has  been  pronounced  requires  the  abatement  or 
destruction  of  a  plant  in  which  some  three  hundred  thousand  dollars 
are  said  to  be  invested,  and  which  gives  employment  to  seventy-five 
men.  The  assignments  of  error  are  quite  numerous,  but  the  important 
questions  raised  are  few. 

The  first  four  assignments,  the  sixth,  ninth,  tenth,  and  sixteenth, 
may  be  considered  together,  as  they  relate  more  or  less  directly  to  the 
same  subject.     The  learned  judge  had  his  attention  directed  by  the 

1  Part  of  the  opinion  only  is  given. 


528  COMMONWEALTH  V.   MILLEK.  [CHAP.  VIII. 

written  points  to  the  definition  of  a  public  nnisance,  and  to  tlie  circum- 
stances under  which  the  defendants'  refinery  had  been  established  and 
maintained  for  many  years  ;  and  he  instructed  the  jury  that  the  charac- 
ter of  the  location  whei-e  tiie  refinerj'  was  established,  the  nature  and 
importance  of  the  business,  the  length  of  time  it  had  been  in  operation, 
the  capital  invested,  and  the  influence  of  the  business  upon  the  growth 
and  prosperity  of  the  communit}",  were  no  defence  to  an  indictment  for 
nuisance.  Among  other  expressions  used  by  him  are  the  following : 
"It  is  no  defence  to  an  indictment  for  a  common  nuisance  that  the 
business  complained  of  has  been  in  operation  many  years."  "  I  do 
not  think  the  size  of  an  establishment  makes  any  difference."  And 
a^ain  :  "  Neither  is  it  a  defence  in  an\'  measure  that  the  business  is  a 
useful  one,"  etc.  If  it  had  been  an  admitted  or  an  established  fact  that 
the  business  of  the  defendants  was  a  common  nuisance,  and  they  had 
attempted  to  justify  its  maintenance,  these  instructions  would  have 
been  appropriate ;  but,  the  question  before  the  jur^-  was  whether  the 
business  was  a  nuisance.  The  decision  of  that  question  depended  upon 
a  knowledge  of  all  the  circumstances  peculiar  to  the  business,  the  place, 
its  surroundings,  and  the  employments  of  the  persons  in  the  vicinity. 
While  no  one  of  these,  nor  all  together,  would  justify-  the  maintenance 
of  a  nuisance,  they  might  be  sufficient,  and  the}'  certainl}'  were  compe- 
tent evidence  from  which  the  jury  might  determine  whether  the  defend- 
ants' refinery  was  a  common  nuisance  at  the  place  where  it  was  located, 
and  this  was  tne  question  to  be  determined  by  the  trial.  They  might 
make,  therefore,  or  contribute  to  make,  a  defence  to  the  indictment  trj'- 
ing.  This  distinction  between  an  eflTort  to  justify  an  admitted  or  estab- 
lished nuisance,  and  a  denial  that  the  business  complained  of  amounts 
to  a  nuisance,  was  evidently  in  the  mind  of  the  learned  judge,  but,  in 
the  haste  that  attends  jury  trials,  he  failed  to  place  it  clearly  before  the 
jury.  He  did  say  that  the  facts  referred  to  had  "  weight,  and  are  to  be 
considered  in  determining  the  degree  of  the  injury  produced,  and 
whether  the  effects  are  so  annoying,  so  productive  of  inconvenience 
and  discomfort,  that  it  can  be  said  to  be  realh'  so  prejudicial  to  the 
public  as  to  be  a  nuisance,"  but,  following  an  explicit  statemeni  that 
these  same  facts  were  "  no  defence  to  an  indictment  for  erecting  and 
maintaining  a  nuisance,"  such  as  the}-  were  then  trying,  the  jury  was 
left  without  an  adequate  presentation  of  the  defence. 

That  such  facts  are  proper  for  consideration  and  may  make  a  defence, 
has  been  long  and  well  settled  :  Wood  on  Nuis.,  §  430.  The  same  rule 
was  applied  in  this  state  in  Huckenstine's  App.,  70  Pa.  102  ;  and  in 
Commonwealth  v.  Reed,  34  Pa.  275.  The  character  of  the  business 
complained  of  must  be  determined  in  view  of  its  own  peculiar  location 
and  surroundings,  and  not  by  the  application  of  an}'  abstract  prin- 
ciple. Wood  V.  SutcliflTe,  16  Jur.  75.  In  the  case  last  cited.  Lord 
Cranworth  referred  to  a  case  at  nisi  prius,  in  which  he  had  instructed 
the  jury  to  consider,  not  only  whether  the  quantity  of  smoke  complained 
of  would  amount  to  a  nuisance,  considered  abstractly,  but  "  whether  It 


SECT.  VI.]  PEOPLE  V.    DETROIT   WHITE   LEAD   WORKS.  529 

is  a  nuisance  to  a  person  living  in  Shields,"  which  was  the  name  of  the 
town  in  which  the  business  was  conducted.  It  was  in  this  respect  that 
the  instructions  complained  of  in  the  first,  second,  and  thnxl  specifica- 
tions were  inadequate.  They  gave  the  general  rule  without  the  qualifi- 
cations which  the  situation  of  the  defendants'  refinery  entitled  him  to. 
The  right  to  pure  air  is,  in  one  sense,  an  absolute  one,  for  all  persons 
have  the  right  to  life  and  health,  and  such  a  contamination  of  the  air  as 
is  injurious  to  health  cannot  be  justified  ;  but,  in  another  sense,  it  is 
relative,  and  depends  upon  one's  surroundings.  People  who  live  in 
great  cities  that  are  sustained  by  manufacturing  enterprises  must  neces- 
saril}'  be  subject  to  many  annoyances  and  positive  discomforts,  by 
reason  of  noise,  dust,  smoke,  and  odors,  more  or  less  disagreeable, 
produced  b}'  and  resulting  from  the  business  that  supports  the  cit\-. 
The}'  can  onlj'  be  relieved  from  them  b}-  going  into  the  open  country. 
The  defendants  had  a  right  to  have  the  character  of  their  business 
determined  in  the  light  of  all  the  surrounding  circumstances,  including 
the  character  of  Allegheny  as  a  manufacturing  cit}',  and  the  manner  of 
the  use  of  the  river  front  for  manufacturing  purposes.  If,  looked  at  in 
this  wa}',  it  is  a  common  nuisance,  it  should  be  removed  ;  if  not,  it  may 
be  conducted  without  subjecting  the  proprietors  to  the  pecuniary  loss 
which  its  removal  would  involve. 


PEOPLE  t\   DETROIT  WHITE  LEAD   WORKS. 
Supreme  Court  of  Michigan.     1890. 

[Reported  82  Mich.  471.] 

Grant,  J.^  This  case  is  brought  to  this  court  by  writ  of  certiorari 
from  the  Recorder's  Court  of  the  cit\-  of  Detroit. 

The  defendants  were  convicted  of  unlawfully  and  wilfully  creating 
and  maintaining  a  nuisance,  consisting  of  the  creation  and  emission  of 
unwholesome,  offensive,  and  nauseating  odors,  smells,  vapors,  and 
smoke,  to  the  great  damage  and  common  nuisance  of  all  people  living 
in  the  neighborhood  thereof,  and  of  all  people  passing  and  repassing 
on  the  streets  and  alleys  adjacent  thereto,  contrary  to  an  ordinance  of 
the  city  in  such  case  made  and  provided,  being  section  5,  chap.  55, 
Rev.  Ord.  1884.  The  ordinance  m  question  is  set  forth  in  the  return  of 
the  judge  to  the  writ. 

The  defendant  the  Detroit  White  Lead  Works  is  a  corpoi-ation  organ- 
ized under  the  laws  of  the  state.  Defendant  Hinchman  is  president, 
defendant  Dean  is  vice-president,  and  defendant  Rogers  is  treasurer 
and  manager.     The  defendants  Hinchman,   Dean,   and  Rogers  were 

^  Part  of  the  opinion  is  omitted. 
34 


530  PEOPLE    V.    DETROIT   WHITE   LEAD   WORKS.      [CIIAP.  VIIL 

fined  ^1  each,  and  the  defendant  the  Detroit  White  Lead  Works  $10 
and  costs.     No  other  penalty  was  imposed. 

The  facts  found  and  returned  by  the  Recorder's  Court  clearly  estab- 
lish a  nuisance,  according  to  all  the  authorities.  These  facts  so  found 
are  conchisive  in  this  court,  and  we  can  only  apply  the  law  to  the 
facts.  Counsel  for  defendants  cannot,  therefore,  seriously  contend  that 
we  can  enter  into  a  discussion  and  determination  of  that  question, 
especially  as  the  evidence  is  not  before  us. 

Defendants  are  not  aided  by  the  fact  found  by  the  court  that,  during 
the  time  covered  by  the  complaint,  the  business,  in  all  respects,  had 
been  carried  on  in  a  careful  and  prudent  manner,  and  nothing  liad  been 
done  by  those  managing  it  that  was  not  a  reasonable  and  necessary 
incident  of  the  business  ;  nor  by  the  further  fact  that,  when  the  defend- 
ant company  commenced  its  business,  the  lands  in  the  vicinity  of  its 
works  were  open  common.  It  is  undoubtedly  true  that  the  defendants, 
or  their  predecessors,  established  their  works  at  a  point  remote  from 
habitation,  possibly  in  recognition  of  the  fact  that  such  a  business  was 
at  least  not  pleasant,  if  not  injurious,  to  the  health  and  enjoyment  of 
those  living  near  it.  The  city  of  Detroit  has  extended  to  the  defend- 
ants' works,  and  the  owners  of  adjoining  lands  have  erected  dwellings 
thereon.  This  they,  of  course,  had  the  legal  right  to  do.  The  defend- 
ants cannot  be  protected  in  the  enjoyment  of  their  property,  and  the 
carrying  on  of  their  business,  if  it  becomes  a  nuisance  to  people  living 
upon  the  adjoining  properties,  and  to  those  doing  legitimate  business  with 
them.  Whenever  such  a  business  becomes  a  nuisance,  it  must  give 
way  to  the  rights  of  the  public,  and  the  owners  thereof  must  either 
devise  some  means  to  avoid  the  nuisance,  or  must  remove  or  cease  the 
business.  It  may  not  be  continued  to  the  injury  of  the  health  of  those 
living  in  its  vicinity.  This  rule  is  founded  both  upon  reason  and 
authoritv.  Nor  is  it  of  any  consequence  that  the  business  is  useful  or 
necessary,  or  that  it  contributes  to  the  wealth  and  prosperity  of  the 
community.  Wood,  Nuis.,  §  19;  Queen  v.  Train,  2  Best  &  S.  640; 
Works  V.  Railroad  Co.,  5  McLean,  425;  Respublica  r,  Caldwell,  1  Dall. 
150  ;  Ross  «'.  Butler,  19  N.  J.  Eq.  296  ;  Robinson  v.  Baugh,  31  Mich. 
290. 

It  is  true  that,  in  places  of  population  and  business,  not  everything 
that  causes  discomfort,  inconvenience,  and  annoyance,  or  which,  per- 
haps, may  lessen  the  value  of  surrounding  property,  will  be  condemned 
and  abated  as  a  nuisance.  It  is  often  difficult  to  determine  the  bound- 
ary line  in  many  such  cases.  The  carrying  on  of  many  legitimate 
businesses  is  often  productive  of  more  or  less  annoyance,  discomfort, 
and  inconvenience,  and  may  injure  surrounding  property  for  certain 
purposes,  and  still  constitute  no  invasion  of  the  rights  of  the  people  living 
in  the  vicinity.  Such  a  case  was  Gilbert  v.  Showerman.  23  Mich.  448. 
A  case  similar  in  its  facts  was  before  this  court  in  Robinson  v.  Baugh, 
31  Mich.  290,  which  was  distinguished  by  the  court  from  Gilbert  v. 
bhowermau.     In  the  former  case  the  business  was  legitimate  and  neces- 


SECT.  VI.]  PEOPLE   V.    DETllOIT   WHITE   LEAD    WORKS.  531 

saiy.  The  suit  was  brought  in  equity  to  enjoin  the  business  at  the 
place  where  carried  on.  The  facts  were  that  smoke  and  soot  from  de- 
fendant's works  were  often  borne  by  the  wind  in  large  amounts  to  the 
premises  of  the  complainants,  and  sometimes  entered  their  dwellings  by 
the  chimneys,  and  through  cracks  by  the  doors  and  windows,  in  such 
measure  as  to  be  extremely  offensive  and  harmful,  and  the  noise  so 
great  as  to  be  disagreeable,  and  positively  hurtful,  the  jar  annoying 
and  disturbing  the  sick,  and  in  some  cases  causing  substantial  damage 
to  dwellings.     The  court  laid  down  the  rule  (page  296)  as  follows  :  — 

"  However  lawful  tlie  business  may  be  in  itself,  and  however  suitable 
in  the  abstract  the  location  may  be,  they  cannot  avail  to  authorize  the 
conductor  of  the  business  to  continue  it  in  a  wa}-  which  directly,  palpably, 
and  substantially  damages  the  property  of  others,  unless,  indeed,  the 
operator  is  able  to  plant  himself  on  some  peculiar  ground  of  grant, 
covenant,  license,  or  privilege  which  ought  to  prevail  against  complain- 
ants, or  on  some  prescriptive  right,  and  which  in  this  country  can 
rarely  happen." 

No  case  has  been  cited,  and  we  think  none  can  be  found,  sustain- 
ing the  continuance  of  a  business  in  the  midst  of  a  populous  com- 
munity, which  constantly  produces  odors,  smoke,  and  soot  of  such  a 
noxious  character,  and  to  such  an  extent,  that  they  produce  headache, 
nausea,  vomiting,  and  other  pains  and  aches  injurious  to  health,  and 
taint  the  food  of  the  inhabitants. 

All  the  defendants  were  properly  convicted.  The  officers  of  the  com- 
pany are  jointly  responsible  for  the  business.  It  is  not  necessary  to 
conviction  that  they  should  have  been  actually'  engaged  in  work  upon  the 
premises.  The  work  is  carried  on  bj*  employees.  The  directors  and 
officers  are  persons  primarily  responsible,  and  therefore  the  proper 
ones  to  be  prosecuted.  A  fine  can  be  collected  against  the  defendant 
company,  and  therefore  it  is  subject  to  prosecution. 


532 


NOTE. 


[chap.  IX. 


V 


CHAPTER  IX. 
AFFIRMATIVE  DEFENCE:    EXCUSE. 


SECTION  I. 


Self-defence. 

REX  V.   ROBERT  OF  HERTHALE. 
Shropshire  Eyre.     1203. 

[1  Selden  Soc.  31.] 

Robert  of  Herthale,  arrested  for  having  in  self-defence  slain  Roger, 
Swein's  son,  who  had  slain  five  men  in  a  fit  of  madness,  is  committed 
to  thfe  sheriff  that  he  may  be  in  custody  as  before,  for  the  King  must 
be  consulted  about  this  matter. 


NOTE. 


Northampton  Iter.     1328. 
[Reported  Fltz.  Abr.  Coron.  361.] 

Note  that  when  a  man  is  acquitted  before  the  justices  errant  for 
death  of  a  man  soy  defendendo,  the  process  is  such  that  he  shall  have 
the  writ  of  the  Chief  Justice,  within  which  writ  shall  be  contained  all 
the  record  of  his  acquittal,  to  the  Chancellor,  who  shall  make  him  his 
writ  of  pardon  without  speaking  to  the  King  by  course  of  law.  Such  a 
man  is  bailable  after  the  acquittal,  etc. 


NOTE. 
1346. 

[Reported  Y.  B.  21  Edw.  3,  17.] 

Note  that  a  man  was  found  guilty  that  he  had  killed  another  se 
defendendo  ;  and  yet  his  chattels  shall  be  forfeited  thougli  his  life  shall 
be  saved.     And  the  cause  was  because  at  Common  Law  a  man  was 


SECT.  I.]  NOTE.  533 

hanged  in  such  a  case  as  above,  just  as  if  he  had  done  it  feloniously;  and 
though  the  king  now  by  the  statute  ^  has  released  his  life,  his  chattels 
remain  as  at  common  law. 


MEMORANDUM. 
1347. 

[Reported  Fitz.  Ahr.  Coron.  261.] 

Where  a  man  justifies  the  death  of  another,  as  by  warrant  to 
arrest  him,  and  he  will  not  obey  him,  or  that  he  comes  to  his  house  to 
commit  burglary  and  the  like,  if  the  matter  be  so  found,  the  justices  let 
him  go  quit  without  the  King's  pardon ;  it  is  otherwise  where  a  man 
kills  another  by  misfortune,  etc. 


NOTE. 


Newgate.     1368. 

[Reported  43  Lib.  Assis.  31,] 

Note  that  at  the  delivery  made  at  Newgate  before  Knivet  and 
LoDEL,  JJ.,  it  was  found  by  the  verdict  that  a  chaplain  killed  a  man  se 
defendendo.  And  the  Judges  asked  how ;  and  they  said  that  the  de- 
ceased pursued  him  with  a  stick  and  hit  him  ;  but  the  other  struck 
back  and  killed  him.  And  they  said  that  the  defendant  might  have 
fled  from  the  assailant  if  he  would.  And  therefore  the  Judges  held 
him  a  felon,  and  said  that  he  was  bound  to  flee  as  far  as  he  could 
to  save  hig  life.     And  the  chaplain  was  adjudged  to  the  Ordinary,  etc. 

1  Statute  of  Gloucester,  6Edw.  1,  ch.  9. 

The  King  commandeth  that  no  writ  shall  be  granted  out  of  the  Chancery  for  the 
death  of  a  man  to  enquire  whether  a  man  did  kill  another  by  misfortune,  or  in  his  own 
defence,  or  in  other  manner  without  felony ;  but  he  shall  be  put  in  prison  until  the 
coming  of  the  justices  in  eyre  or  justices  assigned  to  the  gaol-delivery,  and  shall  put 
himself  upon  the  country  before  them  for  good  and  evil.  In  case  it  be  found  by  the 
country  that  he  did  it  in  his  defence,  or  by  misfortune,  then  by  the  report  of  the  jus- 
tices to  the  King,  the  King  shall  take  hira  to  his  grace,  if  it  please  him. 


534  MEMORANDUM.  [CHAP.  IX. 

MEMORANDUM. 

Chancery.     1488. 

IReported  Y.  B.  4  Hen.  7,  2.] 

In  the  chancery  it  was  moved  that  one  was  indicted  because  he 
killed  a  man  se  ipsum  defendendo,  etc.  And  the  Chancellor  said  that 
the  indictment  should  be  removed  into  the  King's  Bench,  and  that  he 
would  grant  a  pardon  of  common  grace  unto  the  party  according  to 
their  form. 

And  it  was  suggested  by  the  Sergeants  at  the  bar  that  there  was 
no  need  of  having  any  pardon  in  this  case  ;  for  here  the  Justices  would 
not  arraign  him,  but  dismiss  him,  &c.  ;  but  if  the  indictment  were  for 
felony  and  the  party  put  himself  upon  the  inquest  for  good  and  ill 
according  to  the  statute  of  Gloc.  c.  9,  then  if  the  inquest  found  that  he 
did  it  se  defendendo,  the  Justices  would  adjudge  him  to  prison  until  he 
had  a  pardon;  but  here  he  should  be  dismissed,  and  not  lose  his 
goods. 

Fairfax,  J.,  who  was  in  the  Chancery,  went  to  his  companions  and 
returned  and  said  that  their  custom  was  to  take  inquest  and  inquire 
whether  he  did  it  se  defendendo  or  not,  and  if  so  found,  he  lost  his 
goods,  etc. ;  and  so  in  either  way  he  should  have  a  pardon  by  his 
opinion.  And  so  it  seemed  to  the  Chancellor  that  a  pardon  should  be 
granted. 

Note  the  opinion  of  the  Justices  of  the  Bench  against  the  Sergeants. 


Foster,  C.  L.  273.  Self-defence  naturally  falleth  under  the  head  of 
homicide  founded  in  necessit}',  and  may  be  considered  in  two  different 
views.  It  is  either  that  sort  of  homicide  se  et  sua  defendendo,  which  is 
perfectly  innocent  and  justifiable,  or  that  which  is  in  some  measure 
blameable  and  barely  excusable.  The  want  of  attending  to  this  dis- 
tinction hath,  I  believe,  thrown  some  darkness  and  confusion  upon  this 
part  of  the  law. 

The  writers  on  the  Crown  Law,  who,  I  think,  have  not  treated  the 
subject  of  self-defence  with  due  precision,  do  not  in  terms  make  the 
distinction  I  am  aiming  at,  yet  all  agree  that  there  are  cases  in  which  a 
man  may,  without  retreating,  oppose  force  to  force,  even  to  the  death. 
This  I  call  justifiable  self-defence,  they  justifiable  homicide. 

They  likewise  agree  that  there  are  cases  in  which  the  defendant  can- 


SECT.  I.]  ■        MEMORANDUM.  535 

not  avail  himself  of  the  plea  of  self-defence  without  showing  that  he 
retreated  as  far  as  he  could  with  safety,  and  then,  merely  for  the  pres- . 
ervation  of  his  own  life,  killed  the  assailant.     This  1  call  self-defence 
culpable,  but  through  the  benignity  of  the  law  excusable. 

In  the  case  of  justifiable  self-defence  the  injured  party  may  repel  force 
by  force  in  defence  of  his  person,  habitation,  or  property,  against  one 
who  manifestly  intendeth  and  endeavoreth  by  violence  or  surprise  to 
commit  a  known  felony  upon  either.  In  these  cases  he  is  not  obliged 
to  retreat,  but  may  pursue  his  adversary  till  he  findeth  himself  out  of 
danger,  and  if  in  a  conflict  between  them  he  happeneth  to  kill,  such 
killing  is  justifiable. 

The  right  of  self-defence  in  these  cases  is  founded  in  the  law  of  nature, 
and  is  not,  nor  can  be,  superseded  by  any  law  of  society.  For  before 
civil  societies  were  formed  (one  may  conceive  of  such  a  state  of  things, 
though  it  is  difficult  to  fix  the  period  when  civil  societies  were  formed), 
I  say  before  societies  were  formed  for  mutual  defence  and  preservation, 
the  right  of  self-defence  resided  in  individuals  ;  it  could  not  reside  else- 
where ;  and  since  in  cases  of  necessity,  individuals  incorporated  into 
society,  cannot  resort  for  protection  to  the  law  of  the  society,  that  law 
with  great  propriety  and  strict  justice  considereth  them,  as  still,  in  that 
instance,  under  the  protection  of  the  law  of  nature. 

I  will,  by  way  of  illustration,  state  a  few  cases,  which,  I  conceive, 
are  reducible  to  this  head  of  justifiable  self-defence. 

"Where  a  known  felony  is  attempted  upon  the  person,  be  it  to  rob  or 
murder,  here  the  party  assaulted  may  repel  force  by  force  ;  and  even 
his  servant  then  attendant  on  him,  or  any  other  person  present  may 
interpose  for  preventing  mischief;  and  if  death  ensueth,  the  party 
so  interposing  will  be  justified.  In  this  case  nature  and  social  duty 
co-operate. 

A  woman  in  defence  of  her  chastity  may  lawfully  kill  a  person  attempt- 
ing to  commit  a  rape  upon  her.  The  injury  intended  can  never  be  repaired 
or  forgotten  ;  and  nature,  to  render  the  sex  amiable,  hath  implanted  in 
the  female  heart  a  quick  sense  of  honor,  the  pride  of  virtue,  which  kin- 
dleth  and  enflameth  at  every  such  instance  of  brutal  lust.  Here  the  law 
of  self-defence  plainly  coincideth  with  the  dictates  of  nature. 

An  attempt  is  made  to  commit  arson  or  burglary  in  the  habitation  ; 
the  owner,  or  any  part  of  his  family,  or  even  a  lodger  with  him  may 
lawfully  kill  the  assailants  for  preventing  the  mischief  intended.  Here 
likewise  nature  and  social  duty  co-operate. 

I  will  now  proceed  to  that  sort  of  self-defence  which  is  culpable  and 
through  the  benignity  of  the  law  excusable.  And  this  species  of  self- 
defence,  I  choose,  upon  the  authority  of  the  statute  of  Hen.  VIII.,  to 
distinguish  from  the  other  by  the  name  of  homicide  se  defendendo  upon 
chance-medley.  The  term  "  chance-medley  "  hatli  been  very  improperly 
applied  to  the  case  of  accidental  death,  and  in  vulgar  speech  we  gener- 
ally affix  that  single  idea  to  it.  But  the  ancient  legal  notion  of  homicide 
by  chance-medley  was  when  death  ensued  from  a  combat  between  the 


536  MEMORANDUM.  [CHAP.  IX. 

parties  upon  a  sudden  quarrel.  How,  upon  the  special  circumstances 
of  the  case,  the  species  of  homicide  se  defendendo  which  I  am  now 
upon  is  distinguishable  from  that  species  of  felonious  homicide  which 
we  call  manslaughter  will  be  presently  considered. 

The  difference  between  justifiable  and  excusable  self-defence  appear- 
eth  to  me  to  be  plainh-  supposed  and  pointed  out  b}-  the  statute  I  have 
just  mentioned  ;  for,  after  reciting  that  it  had  been  doubted  whether  a 
person  killing  another  attempting  to  rob  or  murder  him  under  the  cir- 
cumstances there  mentioned  should  forfeit  goods  and  chattels,  "As," 
proceedeth  the  statute,  "any  other  person  should  do  that  b}-  chance- 
medley  should  happen  to  kill  or  slay  any  other  person  in  his  or  their 
defence,"  it  enacteth  that  in  the  cases  first  mentioned  the  party  killing 
shall  forfeit  nothing,  but  shall  be  discharged  in  Uke  manner  as  if  he 
were  acquitted  of  the  death. 

He  who,  in  the  case  of  a  mutual  conflict,  would  excuse  himself  upon 
the  foot  of  self-defence,  must  show  that  before  a  mortal  stroke  given 
he  had  declined  any  farther  combat  and  retreated  as  far  as  he  could 
with  safety  ;  and  also  that  he  killed  his  adversary-  through  mere  neces- 
sity, and  to  avoid  immediate  death.  If  he  faileth  in  either  of  these 
circumstances  he  will  incur  the  penalties  of  manslaughter. 

The  authorities  I  shall  cite  will  serve  to  explain  these  principles,  and 
in  some  measure  fix  the  boundaries  between  the  cases  of  manslaughter 
and  excusable  self-defence. 

A.  being  assaulted  by  B.  returneth  the  blow,  and  a  fight  ensneth.  A. 
before  a  mortal  wound  given,  declineth  any  farther  conflict,  and  retreat- 
eth  as  far  as  he  can  with  safety,  and  then,  in  his  own  defence,  killeth 
B. ;  this  is  excusable  self-defence  ;  though,  saith  Stanford,  A.  had  given 
several  blows  not  mortal  before  his  retreat. 

But  if  the  mortal  stroke  had  been  first  given,  it  would  have  been 
manslaughter. 

The  cases  here  put  suppose  that  the  first  assault  was  made  upon  the 
party  who  killed  in  his  own  defence.  But  as  in  the  case  of  manslaughter 
upon  sudden  provocations,  where  the  parties  fight  on  equal  terms,  all 
malice  ^part,  it  mattereth  not  who  gave  the  first  blow  ;  so,  in  this  case 
of  excusable  self-defence,  I  think  the  first  assault  in  a  sudden  aflfray, 
all  malice  apart,  will  make  no  difference,  if  either  party  quitteth  the 
combat  and  retreateth  before  a  mortal  wound  be  given.  But  if  the  first 
assault  be  upon  malice,  which  must  be  collected  from  circumstances, 
and  the  assailant,  to  give  himself  some  color  for  putting  in  execution 
the  wicked  purposes  of  his  heart,  retreateth,  and  then  turneth  and  kill- 
eth, this  will  be  murder.  If  he  had  killed  without  retreating  it  would 
undoubtedly  have  been  so ;  and  the  craft  of  flying  rather  aggravateth 
than  excuseth,  as  it  is  a  fresh  indication  of  the  malitia  already  mentioned, 
the  heart  deliberately  bent  upon  mischief. 

The  other  circumstance  necessary  to  be  proved  in  a  plea  of  self- 
defence  is  that  the  fact  was  done  from  mere  necessity,  and  to  avoid 
immediate  death.     To  this  purpose  I  will  cite  a  case  adjudged  upon 


SECT.  I.]  EEGINA   V.    HEWLETT.  537 

great  deliberation.  It  was  the  case  of  one  Nailor,  which  came  on  at 
O.  B.  in  Apr.  1704,  before  Holt,  Trac}',  and  Biuy. 

The  prisoner  was  indicted  for  the  murder  of  his  brother,  and  the  case 
upon  evidence  appeared  to  be,  that  the  prisoner  on  the  night  the  fact 
was  committed  came  home  drunk.  His  father  ordered  him  to  go  to 
bed,  which  he  refused  to  do ;  whereupon  a  scutHe  happened  betwixt  the 
father  and  son.  The  deceased,  who  was  then  in  bed,  hearing  the  dis- 
turbance got  up,  and  fell  upon  the  prisoner,  threw  him  down,  and  beat 
him  upon  the  ground ;  and  there  kept  him  down,  so  that  he  could  not 
escape  nor  avoid  the  blows ;  and  as  they  were  so  striving  together  the 
prisoner  gave  the  deceased  a  wound  with  a  penknife ;  of  which  wound 
he  died. 

The  judges  present  doubted,  whether  this  was  manslaughter  or  se 
defendendo,  and  a  special  verdict  was  found  to  the  effect  before  set 
forth. 

After  Michaelmas  term,  at  a  conference  of  all  the  judges  of  England, 
it  was  unanimously  holden  to  be  manslaughter  ;  for  there  did  not  appear 
to  be  any  inevitable  necessity  so  as  to  excuse  the  killing  in  this  manner. 


ANONYMOUS. 

[Reported  Kelyng,  58.] 

If  a.  hath  malice  against  B.  and  meeteth  him  and  striketh  him,  and 
then  B.  draweth  at  A,,  and  A.  flyeth  back  until  he  come  to  a  wall,  and 
then  kills  B.,  this  is  murder,  notwithstanding  his  flying  to  the  wall ;  for 
the  craft  of  flying  shall  not  excuse  the  malice  which  he  had,  nor  shall 
any  such  device  to  wreak  his  malice  on  another,  and  think  to  be  excused 
by  law,  avail  him  anything,  but  in  such  case  the  malice  is  enquirable, 
and  if  that  be  found  by  the  jury,  then  his  flight  is  so  far  from  excusing 
the  crime,  that  it  aggravates  it. 


REGINA  V.   HEWLETT. 
Bristol  Assizes.     1858. 

[Reported  1  Foster  and  F Mason,  91.] 

Wounding  with  intent.  The  prisoner  was  indicted  for  wounding 
with  intent  to  do  grievous  bodily  harm  to  the  prosecutor.  It  appeared 
that  the  prisoner,  with  a  knife,  struck  at  one  Withy.  The  prosecutor 
interfered  and  caught  the  blow  intended  for  Withy  on  his  arm. 

Crowder,  J.    This  will  not  sustain  the  charge  of  wounding  with 


538  SHORTER   V.   PEOPLE.  [CHAP.  IX. 

intent  to  do  grievous  bodilj'  harm  to  the  prosecutor,  but  he  may  be 
convicted  of  unlawfully  wounding. 

It  appeared  that  the  prosecutor,  With}'  and  two  women,  who  had 
been  drinking  together,  met  the  prisoner  at  midnight  on  the  highway. 
Some  words  passed  between  them,  when  With}-  struck  the  prisoner. 
The  prisoner  then  made  the  blow,  which  was  the  subject  of  the  charge. 
It  was  contended  for  him  that,  under  the  circumstances,  he  was  justi- 
fied in  doing  so. 

Crowder,  J.  (to  the  jurj-).  Unless  the  prisoner  apprehended  rob- 
bery or  some  similar  offence,  or  danger  to  life  or  serious  bodily  danger 
(not  simpl}'  being  knocked  down),  he  would  not  be  justified  in  using 
the  knife  in  self-defence. 

Not  guilty. 


SHORTER  V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1849. 

[Reported  2  Comstock,  193.] 

Henry  Shorter,  a  negro,  was  indicted  for  the  murder  of  Stephen  C. 
Brush,  and  tried  at  the  Erie  County  Oyer  and  Terminer  in  November, 
1848.1 

The  evidence  having  closed.  Justice  Hoyt,  presiding  at  the  trial, 
proceeded  to  charge  the  jury  at  large  upon  the  case,  and  having  done 
so,  the  counsel  for  the  prisoner  requested  the  court  to  charge  that  if 
the  deceased  struck  the  first  blow,  and  if  there  was  reasonable  ground 
to  apprehend  a  design  on  the  part  of  the  deceased  to  do  the  prisoner 
some  great  personal  injury,  and  the  prisoner  believed  that  there  was 
imminent  danger  of  such  design  being  accomplished,  it  was  a  case  of 
justifiable  homicide,  although  he  might  be  mistaken  in  such  belief;  and 
that  the  question  was  not  whether  such  danger  existed,  but  whether 
the  prisoner  believed  it  to  exist.  The  court  refused  so  to  charge,  but 
on  the  contrary  charged  that  to  render  the  killing  justifiable  the  jury 
should  be  satisfied  that  there  was  in  fact  imminent  danger  that  the 
deceased  would  commit  some  great  personal  injury  upon  the  prisoner. 
The  prisoner's  counsel  excepted  to  this  part  of  the  charge  and  to  the 
refusal  to  charge  as  requested.  The  jury  found  the  prisoner  guilty  of 
murder.  A  bill  of  exceptions  was  made  and  the  case  removed  by  cer- 
tiorari into  the  Supreme  Court,  where  a  new  trial  was  refused.  The 
prisoner  brought  error  to  this  court. 

Bronson,  J.  When  one  who  is  without  fault  himself  is  attacked 
by  another  in  such  a  manner  or  under  such  circumstances  as  to  furnish 
reasonable  ground  for  apprehending  a  design  to  take  away  his  life,  or 
do  him  some  great  bodily  harm,  and  there  is  reasonable  ground  for 

1  The  evideuce,  arguments,  and  part  of  the  opinion  are  omitted. 


SECT.  I.]  SHORTER   V.   PEOPLE.  539 

believing  the  danger  imminent  that  such  design  will  be  accomplished, 
I  think  he  may  safely  act  upon  appearances,  and  kill  the  assailant,  if 
that  be  necessary  to  avoid  the  apprehended  danger ;  and  the  killing 
will  be  justifiable,  although  it  may  afterwards  turn  out  that  the  appear- 
ances were  false,  and  there  was  in  fact  neither  design  to  do  him 
serious  injurj',  nor  danger  that  it  would  be  done.  He  must  decide  at 
his  peril  upon  the  force  of  the  circumstances  in  which  he  is  placed,  for 
that  is  a  matter  which  will  be  subject  to  judicial  review.  But  he  will 
not  act  at  the  peril  of  making  that  guilt,  if  appearances  prove  false, 
which  would  be  innocence  had  they  proved  true.  I  cannot  better 
illustrate  xay  meaning  than  by  taking  the  case  put  by  Judge,  afterwards 
Chief  Justice  Parker,  of  Massachusetts,  on  the  trial  of  Thomas  O. 
Selfridge.  "  A.  in  the  peaceable  pursuit  of  his  affairs  sees  B.  walking 
rapidly  towards  him  with  an  outstretched  arm  and  a  pistol  in  his  hand, 
and  using  violent  menaces  against  his  life  as  he  advances.  Having 
approached  near  enough  in  the  same  attitude,  A.  who  has  a  club  in 
his  hand,  strikes  B.  over  the  head,  before,  or  at  the  instant  the  pistol 
is  discharged  ;  and  of  the  wound  B.  dies.  It  turns  out  that  the  pistol 
was  loaded  M'ith  powder  onl}',  and  that  the  real  design  of  B.  was  only 
to  terrify  A."  Upon  this  case  the  judge  inquires,  "  Will  any  reasonable 
man  say  that  A.  is  more  criminal  than  he  would  have  been  if  there 
had  been  a  bullet  in  the  pistol  ?  Those  who  hold  such  doctrine  must 
require  that  a  man  so  attacked  must,  before  he  strikes  the  assailant, 
stop  and  ascertain  how  the  pistol  was  loaded,  —  a  doctrine  which  would 
entirel}^  take  away  the  right  of  self  defence.  And  when  it  is  considered 
that  the  jury  who  try  the  cause,  and  not  the  party  killing,  are  to  judge 
of  the  reasonable  grounds  of  his  apprehension,  no  danger  can  be  sup- 
posed to  flow  from  this  principle."  The  judge  had  before  instructed 
the  jury  that,  "when  from  the  nature  of  the  attack  there  is  reasonable 
ground  to  believe  that  there  is  a  design  to  destroj'  his  life,  or  commit 
any  felony  upon  his  person,  the  killing  of  the  assailant  will  be  excus- 
able homicide,  although  it  should  afterwards  appear  that  no  felony  was 
intended."  Selfridge's  Trial,  p.  160;  1  Russ.  on  Crime,  699,  ed.  of 
'24 ;  p.  485,  note,  ed.  of  '36.  To  this  doctrine  I  fully  subscribe.  A 
different  rule  would  lay  too  heavy  a  burden  upon  poor  humanity. 

I  have  stated  the  case  of  Selfridge  the  more  fully,  because  it  is  not 
onlj'  an  authority  in  point,  but  it  is  one  which  the  revisers  professed 
to  follow  in  framing  our  statute  touching  this  question. 

I  shall  not  stop  to  consider  the  common  law  distinctions  between 
justifiable  and  excusable  homicide,  because  our  statute  has  placed  kill- 
ing in  self  defence  under  the  head  of  justifiable  homicide.  2  R.  S.  660, 
s.  3. 

The  Massachusetts  case  lays  down  no  new  doctrine.  The  same 
principle  was  acted  on  in  Levett's  Case.^  Foster  (Crown  Law,  p. 
299)  says  of  this  case,  "Possibly  it  might  have  been  better  ruled  man- 

1  The  learned  judge  here  stated.  Levett's  Case,  ante.  —  Ed.  j 


540  SHORTER  V.  PEOPLE.  [CHAP.  IX. 

slaughter  at  common  law,  due  circumspection  not  having  been  used." 
I  do  not  understand  him  as  questioning  the  principle  of  the  decision, 
but  as  only  expressing  a  doubt  whether  the  principle  was  properly 
applied.  He  calls  it  nothing  more  than  a  case  of  manslaughter,  when, 
if  a  man  may  not  act  upon  appearances,  it  was  a  plain  case  of  murder. 
So  far  as  I  have  observed,  no  other  writer  upon  criminal  law  has  ques- 
tioned, in  any  degree,  the  decision  in  Levett's  Case ;  and  most  of  them 
have  fully  approved  it.  East,  in  his  Pleas  of  the  Crown  (vol.  i.  p. 
274,  375),  has  done  so.  Hale  (1  P.  C  42,  474)  mentions  it  among 
cases  where  ignorance  of  the  fact  will  excuse  from  all  blame.  Haw- 
kins (1  P.  C.  84,  Curwood's  ed.)  sa3-s  the  kiUing  had  not  the  appear- 
ance of  a  fault.  Russell  (on  Crimes,  vol.  1.  p.  550,  ed.  of  1836) 
approves  the  decision,  which  he  introduces  with  the  remark  that 
"important  considerations  will  arise  in  cases  of  this  kind  [he  was 
speaking  of  homicide  in  defence  of  one's  person,  habitation,  or  prop- 
erty] as  to  the  grounds  which  the  party  killing  had  for  supposing  that 
the  person  slain  had  a  felonious  design  against  him ;  more  especially 
where  it  afterwards  appears  that  no  such  design  existed."  Roscoe, 
(Crim.  Ev.  p.  639)  says,  "It  is  not  essential  that  an  actual  felony 
should  be  about  to  be  committed  in  order  to  justify  the  killing.  If 
the  circumstances  are  such  as  that,  after  all  reasonable  caution,  the 
party  suspects  that  the  felony  is  about  to  be  immediately  committed, 
he  will  be  justified."  And  he  then  gives  Levett's  Case  as  an  example. 
The  case  of  Sir  William  Hawksworth,  who,  through  his  own  fault, 
was  shot  by  the  keeper  of  his  park,  who  took  him  for  a  stranger  who 
had  come  to  destroy  the  deer,  went  upon  the  same  principle.  1  Hale's 
P.  C.  40 ;  1  East,  P.  C.  275 ;  1  Russ.  on  Cr.  549.  Other  cases  are 
put  in  the  books  where  the  killing  will  be  justified  by  appearances, 
though  they  afterwards  prove  false.  A  general,  to  try  the  vigilance  or 
courage  of  his  sentinel,  comes  upon  the  sentinel  in  the  night  in  the 
posture  of  an  enemy,  and  is  killed.  There  the  ignorance  of  the  sen- 
tinel that  it  was  his  general,  and  not  an  enemy,  will  justify  the  killing. 
1  Hale's  P.  C.  42  ;  1  East,  P.  C.  275  ;  1  Russ.  540.  The  case  men- 
tioned by  Lord  Hale,  which  was  before  him  at  Peterborough,  where  a 
servant  killed  his  master,  supposing  he  was  shooting  at  deer  in  the 
corn  in  obedience  to  his  master's  orders,  belongs  to  the  same  class. 
1  Hale's  P.  C.  40,  476 ;  1  Russ.  540.  In  Rampton's  Case  (Kelyng 
Rep.  41)  the  defendant  killed  his  wife  with  a  pistol  which  he  had 
found  in  the  street,  after  ascertaining,  as  he  supposed,  by  a  trial  with 
the  ramrod,  that  it  was  not  loaded,  though  in  fact  it  was  charged  with 
two  bullets.  This  was  adjudged  to  be  manslaughter,  and  not  merely 
misadventure.  Foster  (Crown  Law,  263,  4)  calls  this  a  hard  case, 
and  thinks  the  man  should  have  been  wholly  acquitted,  on  the  ground 
that  he  exercised  due  caution,  —  the  utmost  caution  not  being  neces- 
sary in  such  cases.  But  if  the  decision  was  right,  as  I  am  inclined  to 
think  it  was,  for  the  want  of  proper  caution,  still  the  case  goes  on  the 
ground  that  the  degree  of  guilt  may  be  aflfected  by  appearaaces  which 


SECT.  I.]  SHORTEK   V.   PEOPLE.     .  541 

afterwards  prove  false ;  for  if  he  had  not  tried  the  pistol,  it  would 
have  been  murder.  Foster  (p.  265)  mentions  a  case  which  was  tried 
before  him,  where  the  prisoner  had  shot  his  wife  with  a  gun,  which  he 
supposed  was  not  loaded.  The  judge,  being  of  opinion  that  the  pris- 
oner had  reasonable  ground  to  believe  that  the  gun  was  not  loaded, 
directed  the  jury,  that  if  they  were  of  the  same  opinion,  they  should 
acquit  the  prisoner;  and  he  was  acquitted.  In  Meade's  Case  (1 
Le win's  Cr.  Cas.  184)  the  prisoner  had  killed  with  a  pistol  one  of  a 
great  number  of  persons  who  came  about  his  house  in  the  night  time, 
singing  songs  of  menace,  and  using  violent  language.  Holroyd,  J., 
told  the  jury  that  if  there  was  nothing  but  the  song,  and  no  appear- 
ance of  violence,  if  they  believed  there  was  no  reasonable  ground  for 
apprehending  danger,  the  kilHng  was  murder.  And  in  The  People 
V.  Rector  (19  Wend.  569)  Co  wen,  J.,  said  alarm  on  the  part  of 
the  prisoner,  on  apparent  though  unreal  grounds,  was  pertinent  to 
the  issue.  In  The  U.  S.  v.  Wiltberger  (3  Wash.  C.  C.  515,  521)  the 
judge  told  the  jury  that,  for  the  purpose  of  justifying  the  kilHng,  the 
intent  of  the  deceased  to  commit  a  felony  must  be  apparent^  which 
would  be  sufficient,  although  it  should  afterwards  turn  out  that  the 
real  intention  was  less  criminal,  or  even  innocent.  He  afterwards 
added  that  the  danger  must  be  imminent,  —  meaning,  undoubtedh', 
that  it  must  wear  that  appearance.  The  State  v.  Wells  (1  Coxe  N.  J. 
Rep.  424)  is  entirely  consistent  with  this  doctrine.  The  Supreme 
Court  of  Tennessee  has  gone  still  further,  and  held  that  one  who  kills 
another,  believing  himself  in  danger  of  great  bodily  harm,  will  be  jus- 
tified, although  he  acted  from  cowardice,  and  without  any  sufficient 
ground,  in  the  appearances,  for  the  killing.  Grainger  v.  The  State, 
5  Yerger,  459.  This  was,  I  think,  going  too  far.  It  is  not  enough 
that  the  party  believed  himself  in  danger,  unless  the  facts  and  circum- 
stances were  such  that  the  jury  can  sa}'  he  had  reasonable  grounds  for 
his  belief. 

We  have  been  referred  to  two  cases  where  it  was  said,  in  substance, 
that  the  killing  must  be  necessary  :  Regina  v.  Smith,  8  Car.  &  Pa}'. 
160,  and  Regina  v.  Bull,  9  id.  22;  and  other  authorities  to  the  same 
eifect  might  have  been  cited.  The  life  of  a  human  being  must  not  be 
taken  upon  slight  grounds  ;  there  must  be  a  necessity',  either  actual  or 
apparent,  for  the  killing,  or  it  cannot  be  justified.  That,  I  think,  is 
all  that  was  meant  by  such  remarks  as  have  been  mentioned.  The 
unqualified  language  that  the  killing  must  be  necessar}'  has,  I  think, 
never  been  used  when  attention  was  directed  to  the  question  whether 
the  accused  might  not  safely  act  upon  the  facts  and  circumstances  as 
they  were  presented  at  the  time.  1  have  met  with  no  authorit}'  for 
saying,  that  a  homicide  which  would  be  justifiable  had  appearances 
proved  true,  will  be  criminal  when  they  prove  false. 


542  STOPFER  V.   STATE.  [CHAP.  IX. 


STOPFER  V.   STATE. 
Supreme  Court  of  Ohio.     1864. 

[Reported  15  Ohio  State,  47.] 

Ranney,  J.^  From  the  bill  of  exceptions  it  appears  that,  after  the 
state  had  given  evidence  tending  to  prove  that  the  plaintiff  made  an 
assault  upon  Webb  in  the  street,  with  the  intent  to  murder  him  with  a 
knife,  and  that  in  the  conflict  which  ensued,  Webb  was  killed  by  him, 
the  plaintiff  in  error  gave  evidence  tending  to  prove  that  he  desisted 
from  the  conflict,  declined  further  combat,  and  retreated  rapidly  a  dis- 
tance of  one  hundred  and  fifty  feet,  and  took  refuge  in  the  house  of  a 
stranger,  where  he  shut  and  held  the  door ;  that  Webb,  his  brother,  and 
one  Dingman  immediatel}'  pursued,  throwing  stones  at  him,  and  crying 
"•  Kill  him  !  "  as  he  retreated,  and,  forcibl}'  opening  the  door,  they  entered 
the  house  and  assaulted  him,  and  in  the  conflict  which  immediately 
ensued,  Webb  was  killed. 

Upon  this  state  of  the  evidence,  counsel  for  the  plaintiff  in  error 
requested  the  court  to  instruct  the  jury  that  the  killing  of  Webb  would 
be  excusable,  although  the  accused  should  have  made  the  assault  upon 
him  with  the  malicious  intent  of  killing  him,  if  the  jury  should  find  that, 
before  Webb  had  received  an}-  injury,  the  accused  desisted  from  the 
conflict,  and  in  good  faith  declined  further  combat,  and  retreated  to  a 
place  which  he  might  reasonably  regard  as  a  place  of  security,  and  that 
Webb  and  those  in  concert  with  him,  immediately  pursued  and  forcibly 
entered  such  place,  and  there  made  an  assault  upon  the  accused,  in  such 
manner  as  to  warrant  him  in  believing  that  his  life  was  in  danger  at  the 
hands  of  Webb,  and  without  deliberation  or  malice,  and  to  save  his 
own  life,  he  took  that  of  AVebb. 

This  instruction  the  court  I'efused  to  give,  but,  in  substance,  charged 
the  jury  that,  under  such  circumstances,  the  accused  would  be  guilty 
of  manslaughter,  provided  they  "  should  regard  the  conduct  of  Webb, 
from  the  commencement  of  the  conflict  in  the  street  to  the  time  of  the 
conflict  in  the  house,  as  continuous." 

The  difference  between  the  instruction  asked  and  that  given  is  easily 
appreciated.  The  one  makes  the  conduct  of  the  accused  in  declining, 
in  good  faith,  further  conflict,  and  retreating  to  a  place  of  supposed 
security  from  the  attacks  of  Webb,  decisive  of  his  right  to  defend  him- 
self there,  when  afterward  assaulted  by  Webb  and  those  in  concert 
with  him,  and,  if  necessary  to  save  his  own  life,  without  malice  or  pre- 
meditation to  take  that  of  Webb :  while  the  other  makes  the  condicct 
of  Webb  the  test  whether  the  conflict  had  so  far  terminated  as  to  restore 
the  accused  to  his  right  of  self-defence,  and  denies  him  this  right,  if  the 
conduct  of  Webb,  from  the  conflict  in  the  street  to  that  in  the  house, 

^  Part  of  the  case,  not  involving  a  q^uestion  of  justification,  is  omitted.  | 


SECT.  I.]  STOFFER   V.   STATE.  543 

was  to  be  regarded  as  continuous.  We  are  not  permitted  to  regard 
this  retreat  of  the  accused,  as  either  colorable,  or  made  to  gain  an 
advantage,  with  a  view  of  renewing  the  assault  upon  Webb.  The  in- 
struction requested  assumed  that  it  must  have  been  made  with  the  bo7ia 
fide  purpose  of  abandoning  the  conflict ;  and  in  the  instruction  given, 
the  jury  were  charged  that  if  the  attack  upon  Webb  in  the  street  was 
murderous,  the  fact  that  the  accused  "  repented  and  fled,  .  .  .  intend- 
ing to  quit  the  combat,  and  abandoning  all  murderous  purpose,"  would 
have  no  further  effect  than  to  mitigate  the  crime  to  manslaughter. 

Upon  the  precise  question  made  in  this  case,  very  little  light  is  thrown 
by  actual  adjudications  ;  and  it  is  not  to  be  denied  that  some  difference 
of  opinion  has  obtained  among  elementary  writers  upon  criminal  law. 
The  learned  and  humane  Sir  Matthew  Hale  has  expressed  an  opinion 
upon  the  very  point,  in  accordance  with  the  instruction  requested  in  the 
court  below.*^  He  says :  "  Suppose  that  A.  by  malice  makes  a  sudden 
assault  upon  B.,  who  strikes  again,  and  pursuing  hard  upon  A.,  A. 
retreats  to  the  wall,  and,  in  saving  his  own  life  kills  B. ;  some  have 
held  this  to  be  murder,  and  not  se  defendendo,  because  A.  gave  the  first 
assault.  But  Mr.  Dalton  thinketh  it  to  be  se  defendendo,  though  A. 
made  the  first  assault,  either  with  or  vnthout  malice,  and  then  retreated. 
It  seems  to  me,  that  if  A.  did  retreat  to  the  wall  upon  a  real  intent  to 
save  his  life,  and  then  merely  in  his  own  defence  killed  B.,  that  it  is  se 
defendendo,  and  with  this  agrees  Stamford's  P.  C.  Ub.  1,  c.  7,  fol.  15a. 
But  if  on  the  other  side.  A.,  knowing  his  advantage  of  strength,  or  skill, 
or  weapon,  retreated  to  the  wall  merely  as  a  design  to  protect  himself, 
under  the  shelter  of  the  law,  as  in  his  own  defence,  but  really  intending 
to  kill  B.,  then  it  is  murder  or  manslaughter,  as  the  circumstance  of 
the  case  requires."     1  Hale's  P.  C.  479,  480. 

Sergeant  Hawkins,  however,  thinks  this  opinion  too  favorable,  and 
insists  that  the  one  who  gives  the  first  blow  cannot  be  permitted  to 
kill  the  other,  even  after  retreating  to  the  wall ;  because  the  necessity 
to  which  he  is  at  last  reduced  was  brought  upon  himself.  1  Hawk. 
P.  C.  87. 

Later  English  writers  have  generally  contented  themselves  with  stat- 
ing the  opposing  opinions  of  these  eminent  authors,  without  adding 
anything  material  upon  the  subject.  4  Bl.  Com.  186  ;  1  Russ.  on 
Crimes,  662. 

In  our  own  country,  Mr.  Bishop,  in  his  work  on  criminal  law,  has 
examined  the  whole  subject  with  learning  and  ability,  and  coinciding, 
as  we  understand  him,  in  the  opinion  expressed  by  Lord  Hale,  he  thus 
expresses  his  own  conclusion:  "The  space  for  repentance  is  always 
left  open.  And  when  the  combatant  does  in  good  faith  withdraw  as  far 
as  he  can,  really  intending  to  abandon  the  conflict,  and  not  merely  to 
gain  fresh  strength  or  some  new  advantage  for  an  attack,  but  the  other 
will  pursue  him,  then,  if  taking  life  becomes  inevitable  to  save  life,  he 
is  justified."     2  Bishop  on  Crim.  Law,  s.  556. 

But  if  the  question  cannot  be  said  to  be  settled  upon  authority,  we 


544  STOFFER   V.   STATE.  [CHAP.  IX. 

think  its  solution  upon  principle  very  obvious,  in  the  light  of  doctrines 
upon  which  all  are  agreed.  It  is  very  certain  that  while  the  party  who 
first  commences  a  malicious  assault  continues  in  the  combat,  and  does 
not  put  into  exercise  the  duty  of  withdrawing  in  good  faith  from  the 
place,  although  he  may  be  so  flercelv  pressed  that  he  cannot  retreat,  or 
is  thrown  upon  the  ground  or  driven  to  the  wall,  he  cannot  justify 
taliing  the  life  of  his  adversar\-,  however  necessary  it  may  be  to  save 
his  own  ;  and  must  be  deemed  to  have  brought  upon  himself  the  neces- 
sity of  killing  his  fellow-man.  "  For  otherwise,"  as  said  by  Ch.  J. 
Hale,  "  we  should  have  all  cases  of  murder  or  manslaughter,  by  way 
of  interpretation,  turned  into  se  defe?tde9ido."     1  Hale,  P.  C.  482. 

There  is  every  reason  for  saying  that  the  conduct  of  the  accused, 
relied  upon  to  sustain  such  a  defence,  must  have  been  so  marked,  in 
the  matter  of  time,  place,  and  circumstance,  as  not  only  clearly  to 
evince  the  withdrawal  of  the  accused,  in  good  faith,  from  the  combat, 
but  also  such  as  fairly  to  advise  his  adversary  that  his  danger  had 
passed,  and  to  make  his  conduct  thereafter,  the  pursuit  of  vengeance, 
rather  than  measures  taken  to  repel  the  original  assault.  But  when  this 
is  made  to  appear,  we  know  of  no  princii)le,  however  criminal  the  pre- 
vious conduct  of  the  accused  may  have  been,  which  allows  him  to  be 
hunted  down  and  his  life  put  in  jeopardy,  and  denies  him  the  right  to 
act  upon  that  instinct  of  self-preservation  which  spontaneously  arises 
alike  in  the  bosoms  of  the  just  and  the  unjust.  There  is  no  ground  for 
saying  that  this  right  is  forfeited  by  previous  misconduct :  nor  did  the 
court  below  proceed  upon  any  such  idea,  since  the  jury  were  charged, 
that  if  the  conflict  which  ensued  upon  the  first  assault  had  ended,  and 
a  new  one  was  made  by  Webb  and  his  associates  in  the  house,  the 
accused,  under  reasonable  apprehension  of  loss  of  life  or  great  bodily 
harm,  would  be  justified  in  taking  the  life  of  his  assailant.  The  error 
of  the  court  consisted  in  supposing  that  whatever  might  be  done  by  the 
accused  to  withdraw  himself  from  the  contest,  the  conflict  would  never 
end  so  long  as  Webb  made  continuous  efforts  to  prolong  it.  If  this  is 
a  sound  view  of  the  matter,  the  condition  of  the  accused  would  not 
have  been  bettered  if  he  had  fled  for  miles  and  had  finally  fallen  down 
with  exhaustion,  provided  Webb  was  continuous  in  his  efforts  to  over- 
take him.  But  this  view  is  consistent  with  neither  the  letter  nor  spirit 
of  the  legal  principle.  A  conflict  is  the  work  of  at  least  two  persons, 
and  when  one  has  wholly  withdrawn  from  it,  that  conflict  is  ended  ;  and 
it  cannot  be  prolonged  by  the  efforts  of  him  who  remains  to  bring  on 
another.  It  is  very  true,  that  the  original  assault  may  have  aroused  the 
passions  which  impel  the  pursuer  to  take  vengeance  upon  his  adversary  ; 
and  if  death  should  ensue  from  his  act,  it  might  be  entirely  sufficient  to 
mitigate  the  crime.  But  it  would  still  be  a  crime,  and  the  law  cannot 
tor  a  moment  tolerate  the  execution  of  vengeance  by  private  parties. 
If  this  were  allowed,  such  passions  might  be  as  effectually  aroused  by 
words  as  blows ;  and,  instead  of  the  principle,  so  vital  to  the  peace  of 
society,  that  the  law  alone  must  be  relied  upon  for  the  redress  of  all 


SECT.  I.]  STOPFER  V.    STATE.  545 

injuries,  we  should  have  avengers  of  injuries,  real  or  supposed,  execut- 
ing their  punishments  upon  victims  stripped  of  all  legal  power,  what- 
ever might  be  the  necessity,  of  defending  their  own  lives.  It  is  needless 
to  saj'  that  such  a  course  would  be  alike  destructive  to  public  order 
and  private  security,  and  would  be  substituting  for  the  empire  of  the 
laws,  a  s^'stem  of  force  and  violence. 

A  line  of  distinction  must  be  somewhere  drawn,  which,  leaving  the 
originator  of  a  combat  to  the  neccssarj'  consequences  of  his  illegal  and 
malicious  conduct,  shall  neither  impose  upon  him  punishments  or  dis- 
abilities unknown  to  the  law,  nor  encourage  his  adversary-  to  wreak 
vengeance  upon  him,  rather  than  resort  to  the  legal  tribunals  for  redress  ; 
and  we  think,  upon  principle  and  the  decided  weight  of  authority',  it  lies 
precisely  where  we  have  alreadj'  indicated.  While  he  remains  in  the 
conflict,  to  whatever  extremity  he  ma}'  be  reduced,  he  cannot  be  ex- 
cused for  taking  the  life  of  his  antagonist  to  save  his  own.  In  such 
case,  it  may  be  rightfuUj'  and  truthfully  said  that  he  brought  the  neces- 
sity' upon  himself  by  his  own  criminal  conduct.  But  when  he  has  suc- 
ceeded in  wholly  withdrawing  himself  from  the  contest,  and  that  so 
palpabl}'  as,  at  the  same  time,  to  manifest  his  own  good  faith  and  to 
remove  anj'  just  apprehension  from  his  adversar}',  he  is  again  remitted 
to  his  right  of  self-defence,  and  ma}'  make  it  effectual  by  opposing  force 
to  force,  and,  when  all  other  means  have  failed,  may  legally  act  upon 
the  instinct  of  self-preservation,  and  save  his  own  life  by  sacrificing  the 
life  of  one  who  persists  in  endangering  it. 

If  these  views  are  correct,  their  application  to  the  case  under  consi- 
deration, is  very  obvious.  Both  the  instruction  requested,  and  that 
given,  are  based  upon  the  hypothesis  that  the  accused  had,  in  good 
faith  and  abandoning  all  criminal  purpose,  withdrawn  from  the  combat ; 
that  he  had  not  only  retreated  to  the  wall,  but  behind  the  wall ;  and  had 
not  only  gone  from  the  view  of  his  adversary,  but  to  a  place  of  sup- 
jjosed  security  from  his  attacks.  In  all  this,  his  conduct  was  strictly 
lawful.  In  the  language  of  the  books,  he  "  had  actually  put  into  exer- 
cise the  duty  of  withdrawing  from  the  place."  It  is  very  true  that  the 
evidence  tended  to  implicate  liim  in  a  very  serious  crime  in  the  first 
attack  upon  Webb,  for  which  his  subsequent  conduct  could  not  atone, 
and  for  which  he  was  then,  and  still  is,  liable  to  prosecution  and  punish- 
ment ;  but  when  Webb  and  his  associates  afterwards  pursued  and  at- 
tacked him,  they  were  wholly  in  the  wrong,  and  necessarily  took  upon 
themselves  all  the  hazards  of  such  an  unlawful  enterprise. 


85 


546  PEOPLE  V.  BUTTON.  [CHAP.  IX. 

PEOPLE  V.  button; 

Supreme  Court  of  California.     1895. 
[Reported  106  Cat.  628.] 

Garoutte,  J.  The  appellant  was  charged  with  the  crime  of  murder 
and  convicted  of  manslaughter.  He  now  appeals  from  the  judgment 
and  order  denying  his  motion  for  a  new  trial. 

For  a  perfect  understanding  of  the  principle  of  law  involved  in  this 
appeal  it  becomes  necessary  to  state  in  a  general  way  the  facts  leading 
up  to  the  homicide.  As  to  the  facts  thus  summarized  there  is  no 
material  contradiction.  The  deceased,  the  defendant,  and  several  other 
parties  were  camped  in  the  mountains.  They  had  been  drinking,  and, 
except  a  boy,  were  all  under  the  influence  of  liquor  more  or  less,  the 
defendant  to  some  extent,  the  deceased  to  a  great  extent.  The  de- 
ceased was  lying  on  the  ground  with  his  head  resting  upon  a  rock, 
when  a  dispute  arose  between  him  and  the  defendant,  and  the  defend- 
ant thereupon  kicked  or  stamped  him  in  the  face.  The  assault  was 
a  vicious  one,  and  the  injuries  of  deceased  occasioned  thereby  most 
serious.  One  eye  was  probabl}'  destroyed,  and  some  bones  of  the  face 
broken.  An  expert  testified  that  these  injuries  were  so  serious  as 
likelj'  to  produce  in  the  injured  man  a  dazed  condition  of  mind,  impair- 
ing the  reasoning  faculties,  judgment,  and  powers  of  perception.  Im- 
mediately subsequent  to  this  assault  the  defendant  went  some  distance 
from  the  camp,  secured  his  horse,  returned,  and  saddled  it,  with  the 
avowed  intention  of  leaving  the  camp  to  avoid  further  trouble.  The 
time  thus  occupied  in  securing  his  horse  and  preparing  for  departure 
may  he  estimated  at  from  five  to  fifteen  minutes.  The  deceased's  con- 
duct and  situation  during  the  absence  of  defendant  is  not  made  plain 
by  the  evidence,  but  he  was  probabl}-  still  lying  where  assaulted.  At 
this  period  of  time,  the  deceased  advanced  upon  defendant  with  a  knife, 
which  was  taken  from  him  by  a  bystander,  whereupon  he  seized  his 
gun  and  attempted  to  shoot  the  defendant,  and  then  was  himself  shot 
by  the  defendant  and  immediately  died.  There  is  also  some  further 
evidence  that  deceased  ordered  his  dog  to  attack  the  defendant,  and 
that  defendant  shot  at  the  dog,  but  this  evidence  does  not  appear  to 
be  material  to  the  question  now  under  consideration. 

Upon  this  state  of  facts  the  court  charged  the  jurj-  as  to  the  law  of 
the  case,  and  declared  to  them  in  various  forms  the  principle  of  law 
which  is  fairly  embodied  in  the  following  instruction:  ''One  who  has 
sought  a  combat  for  the  purpose  of  taking  advantage  of  another,  may 
afterward  endeavor  to  decline  an}'  farther  struggle,  and,  if  he  really 
and  in  good  faith  does  so  before  killing  the  person  with  whom  he 
sought  the  combat  for  such  purpose,  he  ma}-  justify  the  killing  on  the 
same  ground  as  lie  might  if  he  had  not  originally  sought  such  combat 
for  such  purpose,  provided  that  you  also  believe  that  his  endeavor  was 


SECT,  I.]  PEOPLE  V.    BUTTON.  547 

of  such  a  character,  so  indicated  as  to  have  reasonably  assured  a  rea- 
sonable man  that  he  was  endeavoring  in  good  faith  to  decline  further 
combat,  unless  you  further  believe  that  in  the  same  combat  in  which 
the  fatal  shot  was  fired,  and  prior  to  the  defendant  endeavoring  to 
cease  further  attack  or  quarrel,  the  deceased  received  at  the  hands  of 
the  defendant  sucli  inj.uries  as  deprived  him  of  his  reason  or  his  capacity 
to  receive  impressions  regarding  defendant's  design  and  endeavor  to 
cease  further  combat." 

It  is  to  that  portion  of  the  foregoing  instruction  relating  to  the 
capacity  of  the  deceased  to  receive  impressions  caused  by  the  defend- 
ant's attack  upon  him  that  appellant's  counsel  has  directed  his  assault ; 
and  our  attention  will  be  addressed  to  its  consideration.  The  recital 
of  facts  indicates,  to  some  extent  at  least,  that  the  assault  upon  de- 
ceased was  no  part  of  the  combat  subsequently  arising  in  which  he 
lost  his  life  ;  yet  the  events  were  so  closely  connected  in  point  of  time 
that  the  court  was  justified  in  submitting  to  the  jury  the  question  of 
fact  as  to  whether  or  not  the  entire  trouble  was  but  one  affray  or 
combat.  Section  197  of  the  Penal  Code,  wherein  it  says,  in  effect,  that 
the  assailant  must  really  and  in  good  faith  endeavor  to  decline  any  fur- 
ther struggle  before  he  is  justified  in  taking  life,  is  simply  declarative 
of  the  common  law.  It  is  but  the  reiteration  of  a  well-settled  principle, 
and  in  no  wise  broadens  and  enlarges  the  right  of  self-defence  as  de- 
clared by  courts  and  text-writers  ever  since  the  days  of  Lord  Hale.  It 
follows  that  the  declaration  of  the  code  above  cited  gives  us  no  light 
upon  the  matter  at  hand,  and,  from  an  examination  of  many  books 
and  cases,  we  are  unable  to  find  a  single  authority  directly  in  point 
upon  the  principle  of  law  here  involved.  It  is  thus  apparent  that  the 
question  is  both  interesting  and  novel. 

The  point  at  issue  may  be  made  fairly  plain  by  the  following  illustra- 
tions :  If  a  party  should  so  violently  assault  another  by  a  blow  or  stroke 
upon  the  head  as  to  render  that  party  incapable  of  understanding  or 
appreciating  the  conditions  surrounding  him,  and  the  party  assailed 
should  thereupon  pursue  the  retreating  assailant  for  many  hours  and 
miles  with  a  deadly  weapon  and  with  deadly  intent,  and  upon  overtak- 
ing him  should  proceed  to  kill  him,  would  the  first  assailant,  the  party 
retreating,  be  justified  in  taking  the  then  aggressor's  life  in  order  to 
save  his  own?  In  other  words,  did  the  first  assault,  producing  the 
effect  that  it  did  debar  defendant  (after  retreating  under  the  circum- 
stances above  depicted)  from  taking  his  opponent's  life,  even  though 
that  opponent  at  the  time  held  a  knife  at  his  throat  with  deadly  intent; 
or,  putting  it  more  concisely,  did  the  aggressor  by  his  first  assault  for- 
feit his  life  to  the  party  assaulted?  Or,  viewing  the  case  from  the 
other  side,  should  a  man  be  held  guiltless  who  without  right  assaults 
another  so  viciously  as  to  take  away  his  capacity  to  reason,  to  deprive 
him  of  his  mind,  and  then  kill  him,  because,  when  so  assaulted,  his 
assailant  is  unable  to  understand  that  the  attacking  party  is  retreating 
and  has  withdrawn  from  the  combat  in  good  faith?    lu  other  words, 


g^3  PEOPLE    V.   BUTTON.  [CHAP.  IX. 

may  a  defendant  so  assault  another  as  to  deprive  him  of  his  mind,  and 
then  kill  him  in  self-defence  when  he  is  in  such  a  condition  that  he  is 
unable  to  understand  that  his  assailant  has  withdrawn  in  good  faith 

from  the  combat?  ,  ,  .        -,  i 

In  order  for  an  assailant  to  justify  the  killing  of  his  adversary  he 
must  not  only  endeavor  to  really  and  in  good  faith  withdraw  from  the 
combat,  but  he  must  make  known  his  intentions  to  his  adversary.  His 
secret  intentions  to  withdraw  amount  to  nothing.  They  furnish  no 
cruide  for  his  antagonist's  future  conduct.  They  indicate  in  no  way 
that  the  assault  may  not  be  repeated,  and  afford  no  assurance  to  the 
party  assailed  that  the  need  of  defence  is  gone.  This  principle  is  fairly 
illustrated  in  Hale's  Pleas  of  the  Crown,  page  482,  where  the  author 
says :  "  But  if  A  assaults  B  first,  and  upon  that  assault  B  re-assaults 
A,  and  that  so  fiercely  that  A  cannot  retreat  to  the  wall  or  other  non 
ultra  without  danger  of  his  life,  nay,  though  A  falls  upon  the  ground 
upon  the  assault  of  B  and  then  kills  B,  this  shall  not  be  interpreted  to 
be  se  defendendo."  The  foregoing  principle  is  declared  sound  for  the 
reason  that,  though  A  was  upon  the  ground  and  in  great  danger  of  his 
life  at  the  time  he  killed  B,  still  he  was  the  assailant,  and  at  the  time 
of.  the  killing  had  done  nothing  to  indicate  to  the  mind  of  B  that 
he  had  in  good  faith  withdrawn  from  the  combat,  and  that  B  was  no 
longer  in  danger.  In  Stoffer  v.  State,  15  Ohio  St.  47,  86  Am.  Dec. 
470°  in  speaking  to  this  question,  the  court  said:  "There  is  every 
reason  for  saying  that  the  conduct  of  the  accused  relied  upon  to  sustain 
such  a  defence  must  have  been  so  marked  in  the  matter  of  time,  place, 
and  circumstance  as  not  only  clearly  to  evince  the  withdrawal  of  the 
accused  in  good  faith  from  the  combat,  but  also  such  as  fairly  to  advise 
his  adversary  that  his  danger  had  passed,  and  to  make  his  conduct 
thereafter  the  pursuit  of  vengeance  ,  rather  than  measures  taken  to 
repel  the  original  assault."  It  is  also  said  in  State  v.  Smith,  10  Nev. 
106,  citing  the  Ohio  case:  "  A  man  who  assails  another  with  a  deadly 
weapon  cannot  kill  his  adversary  in  self-defence  until  he  has  fairly 
notified  him  by  his  conduct  that  he  has  abandoned  the  contest ;  and, 
if  the  circumstances  are  such  that  he. cannot  so  notify  him,  it  is  his 
fault,  and  he  must  take  the  consequences." 

It  is,  therefore,  made  plain  that  knowledge  of  the  withdrawal  of  the 
assailant  in  good  faith  from  the  combat  must  be  brought  home  to  the 
assailed.  He  must  be  notified  in  some  way  that  danger  no  longer 
threatens  him,  and  that  all  fear  of  further  harm  is  groundless.  Yet, 
in  considering  this  question,  the  assailed  must  be  deemed  a  man  of 
ordinary  understanding ;  he  must  be  ganged  and  tested  by  the  common 
rule  —  a  reasonable  man;  his  acts  and  conduct  must  be  weighed  and 
measured  in  the  light  of  that  test,  for  such  is  the  test  applied  wherever 
the  right  of  self-defence  is  made  an  issue.  His  naturally  demented 
condition  will  not  excuse  him  from  seeing  that  his  assailant  has  with- 
drawn from  the  attack  in  good  faith.  Neither  his  passion  nor  his 
cowardice  will  be  allowed  to  blind  him  to  the  fact  that  hia  assailant  is 


SECT.  I.]  PEOPLE   V.   BUTTON.  549 

running  awa}',  and  all  danger  is  over.  If  the  subsequent  acts  of  the 
attacking  part}-  be  such  as  to  indicate  to  a  reasonable  man  that  he 
in  good  faith  has  withdrawn  from  the  combat,  they  must  be  held  to  so 
indicate  to  the  party  attacked.  Again,  the  party  attacked  must  also 
act  in  good  faith.  He  must  act  in  good  faith  toward  the  law,  and 
allow  the  law  to  punish  the  offender.  He  must  not  continue  the  com- 
bat for  the  purpose  of  wreaking  vengeance,  for  then  he  is  no  better 
than  his  adversar}'.  The  law  will  not  allow  him  to  say,  "  I  was  not 
aware  that  my  assailant  had  withdrawn  from  the  combat  in  good  faith," 
if  a  reasonable  man  so  placed  would  have  been  aware  of  such  with- 
drawal. If  the  part}-  assailed  has  eyes  to  see,  he  must  see  ;  and,  if  he 
has  ears  to  hear,  he  must  hear.  He  has  no  right  to  close  his  eyes  or 
deaden  his  ears. 

This  brings  us  directly  to  the  consideration  of  the  point  in  the  case 
raised  by  the  charge  of  the  court  to  the  jury.  While  the  deceased  had 
eyes  to  see  and  ears  to  hear  he  had  no  mind  to  comprehend,  for  his 
mind  was  taken  from  him  by  the  defendant  at  the  first  assault.  Through- 
out this  whole  affray  it  must  be  conceded  that  the  deceased  was  guilt}' 
of  no  wrong,  no  violation  of  the  law.  When  he  attempted  to  kill  the 
defendant  he  thought  he  was  acting  in  self-defence,  and  according  to 
his  lights,  he  was  acting  in  self-defence.  To  be  sure,  those  lights, 
supplied  by  a  vacant  mind,  were  dim  and  unsatisfactory,  yet  thev 
were  all  the  deceased  had  at  the  time,  and  not  only  were  fur- 
nished by  the  defendant  himself,  but  the  defendant  in  furnishing  them 
forcibly  and  unlawfully  deprived  the  deceased  of  others  which  were 
perfect  and  complete.  But  where  does  the  defendant  stand?  It  can- 
not be  said  that  he  was  guilty  of  no  wrong,  no  violation  of  the  law.  It 
was  he  who  made  the  vicious  attack.  It  was  he  who  was  guilty  of  an 
unprovoked  and  murderous  assault.  It  was  he  who  unlawfully  brought 
upon  himself  the  necessity  for  killing  the  deceased.  It  cannot  be  pos- 
sible that  in  a  combat  of  this  character  no  crime  has  been  committed 
against  the  law.  Yet  the  deceased  has  committed  no  oftence.  Neither 
can  the  defendant  be  prosecuted  for  an  assault  to  commit  murder,  for 
the  assault  resulted  in  the  commission  of  a  homicide  as  a  part  of  the 
affray.  For  these  reasons  we  consider  that  the  defendant  cannot  be 
held  guiltless. 

Some  of  the  earlier  writers  hold  that  one  who  gives  the  first  blow 
cannot  be  permitted  to  kill  the  other,  even  after  retreating  to  the  wall, 
for  the  reason  that  the  necessity  to  kill  was  brought  upon  himself.  (1 
Hawkins'  Pleas  of  the  Crown,  87.)  While  the  humane  doctrine,  and 
especially  the  modern  doctrine,  is  more  liberal  to  the  assailant,  and 
allows  him  an  opportunity  to  withdraw  from  the  combat,  if  it  is  done  in 
good  faith,  yet  it  would  seem  that  under  the  circumstances  here  pre- 
sented the  more  rigid  doctrine  should  be  applied.  The  defendant  not 
only  brought  upon  himself  the  necessity  for  the  killing,  but,  in  addition 
thereto,  brought  upon  himself  the  necessity  of  killing  a  man  wholly 
innocent  in  the  eyes  of  the  law;  not  only  wholly  innocent  as  beino-  a 


550  PEOPLE   V.   BUTTON.  [CHAP.  IX. 

person  naturally  non  compos,  but  wholly  innocent  by  being  placed  in 
this  unfortunate  condition  of  mind  by  the  act  of  the  defendant  himself. 
We  conclude,  therefore,  that  the  instruction  contains  a  sound  principle 
of  law.  The  defendant  was  the  first  wrongdoer ;  he  was  the  only 
wrongdoer;  he  brought  on  the  necessity  for  the  killing,  and  cannot  be 
allowed  to  plead  that  necessity  against  the  deceased,  who  at  the  time 
was  non  comjjos  by  reason  of  defendant's  assault.  The  citations  we 
have  taken  from  Hale,  the  Ohio  case,  and  the  Nevada  case,  all  declare 
that  the  assailant  must  notify  the  assailed  of  his  witlidrawal  from  the 
combat  in  good  faith,  before  he  will  be  justified  in  taking  life.  Here 
the  defendant  did  not  so  notify  the  deceased.  He  could  not  notify  him, 
for  by  his  own  unlawful  act  he  had  placed  it  out  of  his  power  to  give  the 
deceased  such  notice.  Under  these  circumstances  he  left  no  room  in 
his  case  for  the  plea  of  self-defence. 

The  court  gave  the  following  instruction  to  the  jury  as  to  the  law 
bearing  upon  the  facts  of  the  case :  "  And  no  man,  by  his  own  lawless 
acts,  can  create  a  necessity  for  acting  in  self-defence,  and  then,  upon 
killing  the  person  with  whom  he  seeks  the  difficulty,  interpose  the  plea 
of  self-defence,  subject  to  the  qualification  next  hereinafter  set  out. 
The  plea  of  necessity  is  a  shield  for  those  only  who  are  without  fault  in 
occasioning  it  and  acting  under  it.  The.  court  instructs  the  jury  that 
if  you  are  satisfied  that  there  was  a  quarrel  between  the  defendant 
and  deceased,  in  which  the  defendant  was  the  aggressor  and  first  as- 
saulted the  deceased  by  means  or  force  likely  to  produce  and  actually 
producing  great  bodily  injury  to  the  deceased,  and  that  the  defendant 
thereafter  in  the  same  quarrel  fatally  shot  the  deceased,  then  you  must 
find  the  defendant  guilty,  subject  to  this  qualification." 

This  instruction  appears  to  have  been  given  subject  to  some  qualifi- 
cation, and  as  to  the  extent  and  character  of  the  qualification  the  record 
is  not  plain.  But,  whatever  it  may  have  been,  the  vice  of  the  instruc- 
tion could  not  be  taken  away.  The  instruction  is  bad  law,  and  no 
explanation  or  qualification  could  validate  it.  It  is  not  true  that  the 
plea  of  necessity  is  a  shield  for  those  only  who  are  without  fault  in 
occasioning  it  and  acting  under  it.  As  we  have  already  seen,  this  is 
the  rigid  doctrine  declared  by  Sergeant  Hawkins,  but  not  the  humane 
doctrine  of  Lord  Hale  and  modern  authority.  The  latter  portion  of  the 
instruction  is  in  direct  conflict  with  the  Stofi'er  case,  already  cited, 
where  the  declaration  of  the  same  principle  in  a  somewhat  different 
form  caused  a  reversal  of  the  judgment.  It  was  there  said  :  "  If  this 
is  a  sound  view  of  the  matter,  the  condition  of  the  accused  would  not 
have  been  bettered  if  he  had  fled  for  miles,  and  had  finally  fallen  down 
with  exhaustion,  provided  Webb  was  continuous  in  his  efforts  to  over- 
take him.  But  this  view  is  consistent  with  neither  the  letter  nor  the 
spirit  of  the  legal  principle."  The  instruction  assumes  that,  if  the 
defendant  was  the  aggressor,  the  quarrel  could  subsequently  assume  no 
form  or  condition  whereby  the  defendant  would  be  justified  in  taking 
the  life  of  the  party  assailed.     The  law  of  self-defence  is  to  the  contrary, 


SECT.  I.]  PEOPLE  V.   BUTTON.  551 

and  is   clearly  recognized   to  tlie  contrary  by  the   provision  of    the 
Penal  Code  to  which  we  have  already  referred. 

The  court  also  gave  the  jury   the  following   instruction  to   guide 
them  in  their  deliberations  :  "  If  you  find  from  the  evidence  that,  prior 
to  the  time  of  the  shooting  of  the  deceased  by  the  defendant,  they  had 
a  quarrel  and  altercation,  and  that  the  defendant  stamped  or  kicked  the 
deceased  in  the  face,  and  that  defendant  thereafter  really  and  in  good 
faith,  although  he  was  the  assailant,  endeavored  to  decline  any  further 
strusfo-Je  before  the  homicide  was  committed,  and  that  [after  the  first 
assault  had  ceased,  and  there  had  an  interval  elapsed  between  said  first 
assault  and  the  final  assault,  making  said  assaults  respectively,  although 
in  some  degree  related  to  each  other,  yet  substantially  distinct  trans- 
actions, each  attended  with  its  own  separate  circumstances]  the  deceased 
procured  his  gun  and  made  such  an  attempt  to  shoot  defendant  as  gave 
the  defendant  reasonable  ground  to  apprehend  and  fear  that  the  de- 
ceased was  about  to  take  his  life,  or  do  him  great  bodily  injury,  and 
that,  acting   under   such    reasonable    apprehension    alone,   defendant 
shot  the  deceased,  then  you  will  acquit  the  defendant ;  and  this  will  be 
your  duty,  notwithstanding  the  defendant  may  have  been  in  the  wrong 
in  first  assailing  or  attacking  the    deceased."     That  portion  of   the 
charge  inclosed  in  brackets  embodied  a  modification  of  the  original 
charge,  as  asked  by  counsel,  and  we  think  should  not  have  been  in- 
serted.    It  had  a  tendency  to  mislead  the  jury,  and  the  instruction  was 
perfectly  sound  without  it.     The  question  as  to  the  capacity  of  the 
deceased's  mind  to  understand  and  appreciate  was  not  an  element  in- 
volved in  this  charge,  and  with  that  the  court  was  not  then  dealing  ; 
but  by  the  modification  it  deprived  the  defendant  of  the  right  to  go 
before  the  jury  upon  the  plea   of  self-defence,  if  there  was    but  one 
assault  which  led  up  to  the  homicide.     The  right  of  the  defendant  to 
act  in  self-defence  was  in  no  way  dependent  upon  the  commission  of 
two  assaults.     If  there  was  but  one  assault  which  caused  the  combat, 
even  though  that  assault  was  a  part  of  the  combat,  and  was  made  by 
the  defendant,  still  be  had  the  right  of  self-defence  if  his  subsequent 
conduct  was  such  as  to  indicate  to  the  assaulted  party  that  he  had 
withdrawn  in  good  faith  from  the  struggle.     The  effect  of  the  modifica- 
tion was  to  plainly  intimate  to  the  jury  that,  if  the  whole  affray  was  but 
one  connected  quarrel  or  altercation,  then  the  defendant,  under  no  pos- 
sible setof  circumstances,  could  be  justified  in  law  in  killing  his  adversary. 
This  is  wrong.     As  to  the  true  solution  of  the  question  by  the  jury 
which  the  court  was  then  discussing,  it  was  entirely  immaterial  whether 
or  not  there  was  one  or  two  assaults. 

We  think  the  questions  we  have  discussed  dispose  of  all  material 
matters  raised  upon  the  appeal. 

For  the  foregoing  reasons  the  judgment  and  order  are  reversed  and 
the  cause  remanded  for  a  new  trial. 


552  COMMONWEALTH   V.  DRUM.  [CHAP.  IX. 

COMMONWEALTH  v.   DRUM. 

Court  of  Oyer  and  Terminer,  Pennsylvania.     1868. 

{Reported  58  Pa.  9.] 

William  Drum  was  charged  in  the  Court  of  Quarter  Sessions  of 
Westmoreland  county  for  the  murder  of  David  Mohigan.  A  true  bill 
having  been  found  by  the  grand  jury  of  that  court,  it  was  certifled  into 
the  Court  of  Oyer  and  Terminer  of  the  same  county. 

Agnew,  J.,  charged  the  jury  as  follows.^  ... 

The  previous  occurrences  on  Monday  night  and  Thursday  night  fur- 
nished no  justification  or  even  excuse  to  Mohigan  in  making  the  attack 
upon  the  prisoner  on  Thursday  night  at  the  saloon.  This  attack  con- 
stituted a  sufficient  ground  on  part  of  the  prisoner  to  defend  himself  in 
a  proper  manner.  But  this  defence,  as  I  have  before  said,  must  not 
exceed  the  reasonable  bounds  of  the  necessity.  Here  the  jury  must 
attend  to  this  important  distinction.  The  argument  of  the  defence  is, 
that  when  the  slayer  is  not  in  fault—  is  not  fighting  at  the  time,  or  has 
given  up  the  fight  —  and  then  slays  his  adversary,  he  is  excusable  as  in 
self-defence.  But  though  this  may  be  the  case,  it  is  not  always  so. 
The  true  criterion  of  self-defence,  in  such  a  case,  is,  whether  there  ex- 
isted such  a  necessity  for  killing  the  adversary  as  required  the  slayer  to 
do  it  in  defence  of  his  life  or  in  the  preservation  of  his  person  from 
great  bodily  harm.  If  a  man  approaches  another  with  an  evident  inten- 
tion of  fighting  him  with  his  fists  only,  and  where,  under  the  circum- 
stances, nothing  would  be  likely  to  eventuate  from  the  attack  but  an 
ordinary  beating,  the  law  cannot  recognize  the  necessity  of  taking  life 
with  a  deadly  weapon.  In  such  a  case  it  would  be  manslaughter ;  and 
if  the  deadly  weapon  was  evidently  used  with  a  murderous  and  bad- 
hearted  intent,  it  would  even  be  murder.  But  a  blow  or  blows  are  just 
cause  of  provocation,  and  if  the  circumstances  indicated  to  the  sla3'er  a 
plain  necessity  of  protecting  himself  from  great  bodily  injury,  he  is 
excusable  if  he  slays  his  assailant  in  an  honest  purpose  of  saving 
himself  from  this  great  harm. 

The  right  to  stand  in  self-defence  without  fleeing  has  been  strongly 
asserted  by  the  defence.  It  is  certainly  true  that  every  citizen  may 
rightfull}'  traverse  the  street,  or  may  stand  in  all  proper  places,  and 
need  not  flee  from  every  one  who  chooses  to  assail  him.  Without  this 
freedom  our  liberties  would  be  worthless.  But  the  law  does  not  appl}' 
this  right  to  homicide.  The  question  here  does  not  involve  the  right  of 
merely  ordinary  defence,  or  the  right  to  stand  wherever  he  may  right- 
fully be,  but  it  concerns  the  right  of  one  man  to  take  the  life  of  another. 
Ordinary  defence  and  the  killing  of  another  evidently  stand  upon  differ- 
ent footing.  When  it  comes  to  a  question  whether  one  man  shall  flee 
or  another  shall  live,  the  law  decides  that  the  former  shall  rather  flee 
than  that  the  latter  shall  die. 

1  Only  so  much  of  the  charge  as  is  concerned  with  the  question  of  self-defence  is 

gis^en.  —  Ed. 


SECT  I.]  STATE   V.   DONNELLY.  553 

STATE  V.  DONNELLY. 

Supreme  Court  of  Iowa.     1886. 

[Reported  69  Iowa,  705.] 

Adams,  C.  J.^  —  The  defendant  shot  his  father,  Patrick  Donnelly, 
with  a  shot-gun,  causing  a  wound  of  which  he  died  about  two  da3S 
afterwards.  The  deceased  had  become  very  angry  with  the  defendant, 
and  at  time  of  the  firing  of  tlie  fatal  shot  was  pursuing  the  defendant 
with  a  pitchfork,  and  the  circumstances  were  such  that  we  think  that 
the  jury  might  have  believed  that  he  intended  to  take  the  life  of  the 
defendant.  On  the  other  hand,  the  circumstances  were  such  that  we 
think  that  the  jury  might  have  believed  that  the  defendant  could  have 
escaped,  and  fully  protected  himself  by  retreating,  and  that  he  had 
reasonable  ground  for  so  thinking. 

The  court  gave  an  instruction  in  these  words  :  "  You  are  instructed 
that  it  is  a  general  rule  of  the  law  that,  where  one  is  assaulted  by 
another,  it  is  the  duty  of  the  person  thus  assaulted  to  retire  to  what  is 
termed  in  the  law  a  wall  or  ditch  before  he  is  justified  in  repelling  such 
assault  in  taking  the  life  of  his  assailant.  But  cases  frequently  arise 
where  tlie  assault  is  made  with  a  dangerous  or  deadly  weapon,  and  in 
so  fierce  a  manner  as  not  to  allow  the  party  thus  assaulted  to  retire 
without  manifest  danger  to  his  life  or  of  great  bodily  injury ;  in  such 
cases  he  is  not  required  to  retreat."  The  defendant  assigns  the  giving 
of  this  instruction  as  error.  He  contends  that  the  court  misstated  the 
law  in  holding,  by  implication,  that  he  is  excused  from  doing  so  only 
where  it  would  manifestly  be  dangerous  to  attempt  it.  His  position  is, 
that  the  assailed  is  under  obligation  to  retreat  only  where  the  assault  is 
not  felonious,  and  that  where  it  is  felonious,  as  the  evidence  tends  to 
show  in  this  case,  he  may  stand  his  ground  and  kill  his  assailant,  what- 
ever his  means  of  retreat  and  escape  might  be,  provided  only  he  had 
reasonable  cause  for  believing  that  if  he  stood  his  ground,  and  did  not 
kill  his  assailant,  his  assailant  would  kill  him,  or  inflict  a  great  bodily 
injury.  Under  this  theory  and  the  evidence,  the  jury  might  have  found 
that  the  defendant  was  justified  in  killing  his  father,  and  that,  too,  even 
though  there  had  been  other  evidence  showing  that  his  father  was  so 
old  and  decrepit  that  the  defendant  could  have  escaped  him  by  simply 
walking  away  from  him.  It  is,  perhaps,  not  to  be  denied  that  the 
defendant's  theory  finds  some  support  in  text-books  and  decisions; 
but  in  our  opinion  it  cannot  be  approved.  This  court  has,  to  be  sure, 
held  that  a  person  assailed  in  his  own  house  is  not  bound  to  retreat, 
though  by  doing  so  he  might  manifestly  secure  his  safety.  State  v. 
Middleham,  62  Iowa,  150.  While  there  is  some  ground  for  contending 
that  the  rule  does  not  fully  accord  with  the  sacredness  which  in  later 
years  is  attached  to  human  life,  the  course  of  decisions  appeared  to  be 

1  Part  of  the  opinion  only  is  given. 


554  STATE  V.  DONNELLY.  [CHAP.  IX. 

such  as  not  to  justify  a  departure  from  it.  The  rule  for  which  the 
defendant  contends  seems,  so  far  as  it  finds  support  in  the  authorities, 
to  be  based  upon  the  idea  that,  where  a  person  attempts  to  commit  a 
felony,  it  is  justifiable  to  take  the  offender's  life  if  that  is  the  only  way 
in  which  he  can  be  prevented  from  consummating  the  felony  attempted. 
But  where  a  person  is  assailed  by  another  who  attempts  to  takes  his 
life,  or  inflict  great  bodily  injury,  and  the  assailed  can  manifestly  secure 
safety  by  retreating,  then  it  is  not  necessary  to  take  the  life  of  the 
assailant  to  prevent  the  consummation  of  the  felony  attempted.  In 
Roscoe,  Crim.  EA^  768,  note,  the  annotator  says:  "When  a  man 
expects  to  be  attacked,  the  right  to  defend  himself  does  not  arise  until 
he  has  done  everything  to  avoid  that  necessity,"  —  citing  People  v. 
Sullivan,  7  N.  Y.  396  ;  Mitchell  v.  State,  22  Ga.  211  ;  Lyon  v.  State, 
id.  399  ;  Cotton  v.  State,  31  Miss.  504  ;  People  v.  Hurley,  8  Cal.  390 ; 
State  V.  Thompson,  9  Iowa,  188;  U.  S.  v.  Mingo,  2  Curt.  1.  In  our 
opinion  the  court  did  not  err  in  giving  the  instruction  in  question.^ 

■1  In  State  v.  Bartlett,  170  Mo.  658,  668,  Sherwood,  P.  J.,  said :  "Defendant,  when 
first  assaulted  and  beaten  by  Edwards  on  the  street,  was  not  bound  to  retreat  to  his 
office.  He  had  a  right  to  be  where  he  was,  and  tiie  wrong  of  Edwards  in  assaulting 
and  beating  hira  there,  could  not  deprive  him  of  that  right  and  so  this  court  has, 
in  effect,  decided.  [State  r.  Evans,  124  Mo.  397;  see,  also.  State  v.  Hudspeth,  150 
Mo.  loc.  cit.  33,  and  cases  cited.]  Because  the  right  to  go  where  one  will  without  let  or 
hindrance,  despite  of  threats  made,  necessarily  implies  the  right  to  stay  where  one  will 
without  let  or  hindrance.  These  remarks  are  controlled  by  the  thought  of  a  lawful 
right  to  be  in  the  particular  locality  to  which  he  goes,  or  in  which  he  stays. 

"  It  is  true,  human  life  is  sacred,  but  so  is  human  liberty ;  one  is  as  dear  in  the  eye  of 
the  law  as  the  other,  and  neither  is  to  give  way  and  surrender  its  legal  status  in  order 
that  the  other  may  exclusively  exist,  supposing  for  a  moment  such  an  anomaly  to  be 
possible.  In  other  words,  the  wrongful  and  violent  act  of  one  man  shall  not  abolish 
or  even  temporarily  suspend  the  lawful  and  constitutional  right  of  his  neighbor.  And 
this  idea  of  the  non-necessity  of  retreating  from  any  locality  where  one  ha.s  the  right 
to  be,  is  growing  in  favor,  as  all  doctrines  based  upon  sound  reason  inevitably  will, 
and  has  found  voice  and  expression  elsewhere." 


SECT,  l]  BEAKD   V.   UNITED   STATES.  555 

^    /  BEARD   V.  UNITED    STATES. 

Supreme  Court  of  the  United  States.    1894. 
[Reported  158  U.  S.  550.] 

Harlan,  J.^  .  .  .  The  court  below  committed  an  error  of  a  more 
serious  character  when  it  told  the  jury,  as  in  effect  it  did  by  different 
forms  of  expression,  that  if  the  accused  could  have  saved  his  own  life 
and  avoided  taking  the  life  of  Will  Jones  bj'  retreating  from  and 
getting  out  of  the  way  of  the  latter  as  he  advanced  upon  him,  the  law 
made  it  his  duty  to  do  so  ;  and  if  he  did  not,  when  it  was  in  his  power 
to  do  so  without  putting  his  own  life  or  body  in  imminent  peril,  he  was 
guilty  of  manslaughter.  The  court  seemed  to  think  if  the  deceased 
had  advanced  upon  the  accused  while  the  latter  was  in  his  dwelliug- 
house  and  under  such  circumstances  as  indicated  the  intention  of  the 
former  to  take  life  or  inflict  great  bodily  injury,  and  if,  without  retreat- 
ing, the  accused  had  taken  the  life  of  his  assailant,  having  at  the  time 
reasonable  grounds  to  believe,  and  in  good  faith  believing,  that  his  own 
life  would  be  taken  or  great  bodily  harm  done  him  unless  he  killed  the 
accused,  the  case  would  have  been  one  of  justifiable  homicide.  To 
that  proposition  we  give  our  entire  assent.  But  we  cannot  agree  that 
the  accused  was  under  any  greater  obligation,  when  on  his  own 
premises,  near  his  dwelUng-house,  to  retreat  or  run  away  from  his 
assailant,  than  he  would  have  been  if  attacked  within  his  dwelling- 
house.  The  accused  being  where  he  had  a  right  to  be,  on  his  own 
premises,  constituting  a  part  of  his  residence  and  home,  at  the  time  the 
deceased  approached  him  in  a  threatening  manner,  and  not  having  by 
language  or  by  conduct  provoked  the  deceased  to  assault  him,  the 
question  for  the  jury  was  whether,  without  fleeing  from  his  adversary 
he  had,  at  the  moment  he  struck  the  deceased,  reasonable  grounds  to 
believe,  and  in  good  faith  believed,  that  he  could  not  save  his  life  or 
protect  himself  from  great  bodily  harm  except  by  doing  what  he  did, 
namely,  strike  the  deceased  with  his  gun,  and  thus  prevent  his  further 
advance  upon  him.  Even  if  the  jury  had  been  prepared  to  answer 
this  question  in  the  affirmative  —  and  if  it  had  been  so  answered,  the 
defendant  should  have  been  acquitted  —  they  were  instructed  that  the 
accused  could  not  properly  be  acquitted  on  the  ground  of  self-defence 
if  they  believed  that,  by  retreating  from  his  adversar}',  by  "getting 
out  of  the  way,"  he  could  have  avoided  taking  life.  We  cannot  give 
our  assent  to  this  doctrine. 

The  application  of  the  doctrine  of  "  retreating  to  the  wall "  was  care- 
fully examined  by  the  Supreme  Court  of  Ohio  in  Erwin  v.  State,  29 
Ohio  St.  186,  193,  199.     That  was  an  indictment  for  murder,  the  de- 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  self-defence  is  given. 
—  Ed. 


556 


BEARD   V.  UNITED   STATES.  [CHAP.  IX. 


fendant  being  found  guilty.  The  trial  court  charged  the  jury  that  if 
the  defendant  was  in  the  lawful  pursuit  of  his  business  at  the  time  the 
fatal  shot  was  fired,  and  was  attacked  by  the  deceased  under  circum- 
stances denoting  an  intention  to  take  life  or  to  do  great  bodily  harm, 
he  could  lawfully  kill  his  assailant  provided  he  used  all  means  "  in  his 
power"  otherwise  to  save  his  own  life  or  prevent  the  intended  harm, 
"  such  as  retreating  as  far  as  he  can,  or  disabling  his  adversary,  with- 
out killing  him,  if  it  be  in  his  power;"  that  if  the  attack  was  so 
sudden,  fierce,  and  violent  that  a  retreat  would  not  diminish  but  in- 
crease the  defendant's  danger,  he  might  kill  his  adversary  without  re- 
treating ;  and  further,  that  if  from  the  character  of  the  attack  there 
was  reasonable  ground  for  defendant  to  believe,  and  he  did  honestly 
beUeve,  that  his  life  was  about  to  be  taken,  or  he  was  to  suffer  great 
bodily  harm,  and  that  he  believed  honestly  that  he  would  be  in  equal 
danger  by  retreating,  then,  if  he  took  the  life  of  the  assailant,  he  was 
excused.     Of  this  charge  the  accused  complained. 

Upon  a  full  review  of  the  authorities  and  looking  to  the  principles 
of  the  common  law,  as  expounded  by  writers  and  courts  of  high 
authority,  the  Supreme  Court  of  Ohio  held  that  the  charge  was  errone- 
ous, saying  :  "  It  is  true  that  all  authorities  agree  that  the  taking  of  life 
in  defence  of  one's  person  cannot  be  either  justified  or  excused,  except 
on  the  ground  of  necessity ;  and  that  such  necessity  must  be  imminent 
at  the  time  ;  and  they  also  agree  that  no  man  can  avail  himself  of  such 
necessity  if  he  brings  it  upon  himself.  The  question  then  is  simply 
this :  Does  the  law  hold  a  man  who  is  violently  and  feloniously  as- 
saulted responsible  for  having  brought  such  necessity  upon  himself  on 
the  sole  ground  that  he  failed  to  fly  from  his  assailant  when  he  might 
safely  have  done  so?  The  law,  out  of  tenderness  for  human  life  and 
the  frailties  of  human  nature,  will  not  permit  the  taking  of  it  to 
repel  a  mere  trespass,  or  even  to  save  life  where  the  assault  is 
provoked  ;  but  a  true  man  who  is  without  fault  is  not  obliged  to  fly 
from  an  assailant,  who  by  violence  or  surprise  maliciously  seeks  to 
take  his  hfe  or  to  do  him  enormous  bodily  harm.  Now,  under  the 
charge  below,  notwithstanding  the  defendant  may  have  been  without 
fault,  and  so  assaulted,  with  the  necessity  of  taking  life  to  save  his 
own  upon  him  ;  still  the  jury  could  not  have  acquitted  if  they  found  he 
had  failed  to  do  all  in  his  power  otherwise  to  save  his  own  life,  or  pre- 
vent the  intended  harm,  as  retreating  as  far  as  he  could,  etc.  In  this 
case  we  think  the  law  was  not  correctly  stated." 

In  Runyan  v.  State,  57  Indiana,  80,  84,  which  was  an  indictment  for 
murder,  and  where  the  instructions  of  the  trial  court  involved  the 
present  question,  the  court  said :  "  A  very  brief  examination  of  the 
American  authorities  makes  it  evident  that  the  ancient  doctrine,  as  to 
the  duty  of  a  person  assailed  to  retreat  as  far  as  he  can,  before  he  is 
justified  in  repelling  force  by  force,  has  been  greatly  modified  in  this 
country,  and  has  with  us  a  much  narrower  application  than  formerl}'. 
Indeed,  the  tendency  of  the  American  mind  seems  to  be  very  strongly 


SECT.  I.]  BEARD   V,   UNITED   STATES.  557 

against  the  enforcement  of  any  rule  which  requires  a  person  to  flee 
when  assailed,  to  avoid  chastisement  or  even  to  save  human  life,  and 
that  tendency  is  well  illustrated  by  the  recent  decisions  of  our  courts, 
bearing  on  the  general  subject  of  the  right  of  self-defence.  The  weight 
of  modern  authority,  in  our  judgment,  establishes  the  doctrine  that, 
when  a  person,  being  without  fault  and  in  a  place  where  he  has  a  right 
to  be,  is  violently  assaulted,  he  may,  without  retreating,  repel  force  by 
force,  and  if,  in  the  reasonable  exercise  of  his  right  of  self-defence,  his 
assailant  is  killed,  he  is  justifiable.  ...  It  seems  to  us  that  the  real 
question  in  the  case,  when  it  was  given  to  the  jury,  was,  was  the 
defendant,  under  all  the  circumstances,  justified  in  the  use  of  a  deadly 
weapon  in  repelling  the  assault  of  the  deceased?  We  mean  by  this, 
did  the  defendant  have  reason  to  believe,  and  did  he  in  fact  believe, 
that  what  he  did  was  necessary  for  the  safety  of  his  own  life  or  to 
protect  him  from  great  bodily  harm?  On  that  question  the  law  is 
simple  and  easy  of  solution,  as  has  been  already  seen  from  the  authori- 
ties cited  above." 

In  East's  Pleas  of  the  Crown,  the  author,  considering  what  sort  of 
an  attack  it  was  lawful  and  justifiable  to  resist,  even  by  the  death 
of  the  assailant,  says :  "  A  man  may  repel  force  by  force  in  defence 
of  his  person,  habitation,  or  property,  against  one  who  manifestly 
intends  or  endeavors,  by  violence  or  surprise,  to  commit  a  known 
felony,  such  as  murder,  rape,  robbery,  arson,  burglary,  and  the  like, 
upon  either.  In  these  cases  he  is  not  obliged  to  retreat,  but  may 
pursue  his  adversary  until  he  has  secured  himself  from  all  danger;  and 
if  he  kill  him  in  so  doing,  it  is  called  justifiable  self-defence  ;  as,  on  the 
other  hand,  the  killing  by  such  felon  of  any  person  so  lawfully  defend- 
ing himself  will  be  murder.  But  a  bare  fear  of  any  of  these  offences, 
however  well  grounded,  as  that  another  lies  in  wait  to  take  away  the 
party's  life,  unaccompanied  with  any  overt  act  indicative  of  such  an 
intention,  will  not  warrant  in  killing  that  other  by  way  of  prevention. 
There  must  be  an  actual  danger  at  the  time."  p.  271.  So  in  Foster's 
Crown  Cases:  "In  the  case  of  justifiable  self-defence,  the  injured 
party  may  repel  force  with  force  in  defence  of  bis  person,  habitation,  or 
property,  against  one  who  manifestly  intendeth  and  endeavoreth,  with 
violence  or  surprise,  to  commit  a  known  felony  upon  either.  In  these 
cases  he  is  not  obliged  to  retreat,  but  may  pursue  his  adversary  till  he 
findeth  himself  out  of  danger,  and  if,  in  a  conflict  between  them,  he 
happeneth  to  kill,  such  killing  is  justifiable."     c.  3,  p.  273. 

In  Bishop's  New  Criminal  Law,  the  author,  after  observing  that 
cases  of  mere  assault  and  of  mutual  quarrel,  where  the  attacking 
party  has  not  the  purpose  of  murder  in  his  heart,  are  those  to  which 
is  applied  the  doctrine  of  the  books,  that  one  cannot  justify  the  killing 
of  another,  though  apparently  in  self-defence,  unless  he  retreat  to  the 
wall  or  other  interposing  obstacle  before  resorting  to  this  extreme  right, 
says  that  "  where  an  attack  is  made  with  murderous  intent,  the  person 
attacked  is  under  no  duty  to  fly ;  he  may  stand  his  ground,  and  if  need 


558 


BEARD  V.   UNITED   STATES.  [CHAP.  IX. 


be,  kill  his  adversary.  And  it  is  the  same  where  the  attack  is  with 
a  deadly  weapon,  for  in  this  case  the  person  attacked  may  well  assume 
that  the  other  intends  murder,  whether  he  does  in  fact  or  not."  Vol.  1, 
§  850.  The  rule  is  thus  expressed  by  Wharton:  "A  man  may  repel 
force  by  force  in  the  defence  of  his  person,  habitation,  or  propert}-, 
against  any  one  or  many  who  manifestly  intend  and  endeavor  by  vio- 
le°nce  or  surprise  to  commit  a  known  felony  on  either.  In  such  case 
he  is  not  compelled  to  retreat,  but  may  pursue  his  adversary  until  he 
finds  himself  out  of  danger,  and  if  in  the  conflict  between  them  he 
happen  to  kill  him,  such  killing  is  justifiable."  2  Wharton  on  Crim. 
Law,  §  1019,  7th  rev.  ed.  Phila.  1874.  See  also  Gallagher  v.  State, 
3  Minnesota,  270,  273  ;  Pond  v.  People,  8  Michigan,  150,  177;  State  v. 
Dixon,  75  N.  C  275,  295;  State  v.  Sherman,  16  R.  I.  631 ;  Fields  v. 
State,  32  N.  E.  Rep.  780 ;  Eversole  v.  Commonwealth,  26  S.  W.  Rep. 
816  ;  Haynes  v.  State,  17  Georgia,  465,  483  ;  Long  v.  State,  52  Missis- 
sippi, 23,  35;  Tweedy  v.  State,  5  Iowa,  433  ;  Baker  v.  Commonwealth, 
19  S.  W.  Rep.  975 ;  Tingle  v.  Commonwealth,  11  S.  W.  812  ;  3  Rice's 
Ev.  §  360. 

In  our  opinion  the  court  below  erred  in  holding  that  the  accused, 
while  on  his  premises,  outside  of  his  dwelling-house,  was  under  a  legal 
duty  to  get  out  of  the  wa}-,  if  he  could,  of  his  assailant,  who,  according 
to  one  view  of  the  evidence,  had  threatened  to  kill  the  defendant,  in 
execution  of  that  purpose  had  armed  himself  with  a  deadly  weapon, 
with  that  weapon  concealed  upon  his  person  went  to  the  defendant's 
premises,  despite  the  warning  of  the  latter  to  keep  away,  and  by  word 
and  act  indicated  his  purpose  to  attack  the  accused.  The  defendant 
was  where  he  had  the  right  to  he,  when  the  deceased  advanced  upon  him 
in  a  threatening  manner,  and  with  a  deadly  weapon  ;  and  if  the  accused 
did  not  provoke  the  assault  and  had  at  the  time  reasonable  grounds  to 
believe,  and  in  good  faith  believed,  that  the  deceased  intended  to  take 
his  life  or  do  him  great  bodily  harm,  he  was  not  obliged  to  retreat,  nor 
to  consider  whether  he  could  safely  retreat,  but  was  entitled  to  stand 
his  ground  and  meet  any  attack  made  upon  him  with  a  deadly  weapon, 
in  such  way  and  with  such  force  as,  under  all  the  circumstances,  he,  at 
the  moment,  honestly  believed,  and  had  reasonable  grounds  to  believe, 
was  necessary  to  save  his  own  life  or  to  protect  himself  from  great 
bodily  injury. 

As  the  proceedings  below  were  not  conducted  in  accordance  with 
these  principles,  the  judgment  must  be  reversed  and  the  cause  re- 
manded with  directions  to  grant  a  new  trial. 

Other  objections  to  the  charge  of  the  court  are  raised  by  the  assign- 
ments of  error,  but  as  the  questions  which  they  present  may  not  arise 
upon  another  trial,  they  will  not  be  now  examined. 

Judgment  reversed} 

1  See  Allen  v.  U.  S.,  164  U.  S.  492.  In  that  case  Brown,  J.,  said :  "  Nor  is  there  any- 
thing in  the  instruction  of  the  court  that  the  prisoner  was  bound  to  retreat  as  far  as  he 


SECT.  I.]  ACEKS   V.    UNITED   STATES.  559 

ACERS  V.  UNITED   STATES. 

Supreme  Court  of  the  United  States.     1896. 

[Reported  164  U.  S.  388.] 

Brewer,  J.  Plaintiff  in  error  was  convicted  in  the  District  Court  for 
the  Western  District  of  Arkansas  of  an  assault  with  intent  to  kill,  and 
sentenced  to  the  penitentiary  for  the  term  of  two  years  and  six  months. 
The  undisputed  facts  were  these:  Defendant  and  one  Joseph  M.  Owens 
had  some  dispute  about  business  affairs,  and  while  returning  together 
to  the  house  wliere  they  were  both  stopping,  defendant  picked  up  a 
stone  about  three  inches  wide,  nine  inches  long  and  an  inch  and  a  half 
or  two  inches  thick,  and  with  it  struck  Owens  on  the  side  of  the  head, 
fracturing  the  skull.  The  defence  was  that  there  was  no  intent  to  kill; 
that  defendant  acted  in  self-defence  ;  that,  believing  Owens  was  about 
to  draw  a  pistol,  he  picked  up  the  stone  and  pushed  him  down  ;  and 
the  disputed  matters  were  whether  Owens  had  a  pistol,  and  if  so, 
whether  he  attempted  to  draw  it,  or  made  any  motions  suggestive  of 
such  a  purpose.  The  verdict  of  the  jury  was  averse  to  the  contentions 
of  the  defendant. 

The  only  questions  presented  for  our  consideration  arise  on  the  charge 
of  the  court,  and  may  be  grouped  under  four  heads  :  First,  as  to  the 
evidences  of  intent ;  second,  as  to  what  constitutes  a  deadly  weapon ; 
third,  as  to  real  danger ;  and  fourth,  as  to  apparent  danger.  It  may 
be  premised  that  the  exceptions  to  this  charge  are  taken  in  the  careless 
way  which  prevails  in  the  Western  District  of  Arkansas  ;  but  passing 
this  and  considering  the  charge  as  properly  excepted  to,  we  find  in  it  no 

substantial  error.^ 

Third.  With  reference  to  the  matter  of  self-defence  by  reason  of  the 
presence  of  a  real  danger,  the  court  charged  that  it  could  not  be  a  past 
danger,  or  a  danger  of  a  future  injury,  but  a  present  danger  and  a 
danger  of  "  great  injury  to  the  person  injured  that  would  maim  him,  or 
that  would  be  permanent  in  its  character,  or  that  might  produce  death." 
In  this  we  think  nothing  was  stated  incorrectly,  and  that  there  was  a 
fair  definition  of  what  is  necessary  to  constitute  self-defence  by  reason 
of  the  existence  of  a  real  danger. 

could  before  slaying  his  assailant  that  conflicts  with  the  ruling  of  this  court  in  Beard  v. 
United  States,  158  U.  S.  550.  That  was  the  case  of  an  assault  upon  the  defendant 
upon  his  own  premises,  and  it  was  held  that  the  obligation  to  retreat  was  no  greater 
than  it  would  have  been  if  he  had  been  assailed  in  his  own  house.  So,  too,  in  the  case 
of  Alberty  v.  United  States,  162  U.  S.  499,  the  defendant  found  the  deceased  trying  to 
obtain  access  to  his  wife's  chamber  through  a  window,  in  the  night-time,  and  it  was 
held  that  he  might  repel  the  attempt  by  force,  and  was  under  no  obligation  to  retreat 
if  the  deceased  attacked  him  with  a  knife.  The  general  duty  to  retreat  instead  of  kill- 
ing when  attacked  was  not  touched  upon  in  these  cases.  Whart.  on  Homicide,  §  485." 
—  Ed. 

1  The  discussion  of  the  first  two  questions  is  omitted.  —  Ed. 


560  ACERS  V.   UNITED   STATES.  [CHAP.  IX. 

Neither,  fourthly,  do  we  find  anything  to  condemn  in  the  instructions 
in  reference  to  self-defence  based  on  an  apparent  danger.  Several 
approved  authorities  are  quoted  from  in  which  the  doctrine  is  correctly 
stated  that  it  is  not  sufficient  that  the  defendant  claims  that  he  believed 
he  was  in  danger,  but  that  it  is  essential  that  there  were  reasonable 
grounds  for  such  beUef,  and  then  the  rule  was  summed  up  in  this  way  : 

"  Now  these  cases  are  along  the  same  line,  and  they  are  without 
limit,  going  to  show  that,  as  far  as  this  proposition  of  apparent  danger 
is  concerned,  to  rest  upon  a  foundation  upon  which  a  conclusion  that 
is  reasonable  can  be  erected  there  must  be  some  overt  act  being  done 
by  the  party  which  from  its  character,  from  its  nature,  would  give  a 
reasonable  man,  situated  as  was  the  defendant,  the  ground  to  believe  — 
reasonable  ground  to  believe  —  that  there  was  danger  to  his  life  or  of 
deadly  violence  to  his  person,  and  unless  that  condition  existed  then 
there  is  no  ground  upon  which  this  proposition  can  stand  ;  there  is 
nothing  to  which  the  doctrine  of  apparent  danger  could  apply." 

Counsel  criticise  the  use  of  the  words  "  deadly'  violence,"  as  though 
the  court  meant  thereby  to  limit  the  defence  to  such  cases  as  showed 
an  intention  on  the  part  of  the  person  assaulted  to  take  the  life  of  the 
defendant,  but  obviously  that  is  not  a  fair  construction  of  the  language, 
not  only  because  danger  to  life  is  expressl}'  named,  but  also  because  in 
other  parts  of  the  charge  it  had  indicated  that  what  was  meant  by  those 
words  was  simpl}'  great  violence.  This  is  obvious  from  this  language, 
found  a  little  preceding  the  quotation  :  "  '  When  from  the  nature  of  the 
attack.'  You  look  at  the  act  being  done,  and  you  from  that  draw  an 
inference  as  to  whether  there  was  reasonable  ground  to  believe  that 
there  was  a  design  upon  the  part  of  Owens  in  this  case  to  destroy  the 
life  of  the  defendant  Acers  or  to  commit  any  great  violence  upon  his 
person  at  the  time  he  was  struck  hy  the  rock.  '  When  from  the  nature 
of  the  attack.'  That  implies  not  that  he  can  act  upon  a  state  of  case 
where  there  is  a  bare  conception  of  fear,  but  that  there  must  exist  that 
which  is  either  really  or  apparentl}'^  an  act  of  violence,  and  from  that  the 
inference  may  reasonably'  be  drawn  that  there  was  deadly  danger  hang- 
ing over  Acers,  in  this  case,  at  that  time." 

These  are  all  the  matters  complained  of.  We  see  no  error  in  the 
rulings  of  the  court,  and,  therefore,  the  judgment  is  Affirmed. 


SECT.  I.]  STATE   V.    EVANS.  561 

STATE  V.  EVANS. 

Supreme  Court  of  Missouri. 

[Reported  124  Mo.  397.] 

Sherwood,  J.^  It  was  developed  by  the  evidence  that  Peter  Fine,  the 
deceased,  rented  a  farm  owned  by  defendant's  wife  ;  both  defendant 
and  deceased  and  their  families  living  on  the  farm  and  occupying 
portions  of  tlie  same  dwelling  house.  The  term  of  Fine  had  about 
expired,  and  he  had  been  informed  by  defendant  that  he  wanted  pos- 
session of  the  farm  on  the  expiration  of  the  year  for  which  it  was  rented 
to  him.  This  announcement  displeased  Fine  and  gave  rise  to  alterca- 
tions between  the  parties,  and  threats  on  the  part  of  Fine  towards 
defendant,  so  much  so,  that  several  days  before  the  homicide  occurred, 
defendant  felt  it  to  be  necessary  to  take  steps  and  secure  the  arrest  of 
Fine  in  order  to  have  him  bound  over  to  keep  the  peace.  His  arrest 
greatly  enraged  Fine,  and  he  made  threats  of  taking  defendant's  life 
unless  he  got  off  the  place,  etc.  ;  these  threats,  some  of  them,  extend- 
ing even  down  to  the  morning  of  the  day  on  which  Fine  was  shot,  the 
twenty-fifth  of  October.  On  the  morning  of  that  day,  having  been 
freshly  threatened,  defendant  for  his  own  protection  deemed  it  neces- 
sary to  procure  a  pistol,  which  he  did  by  riding  to  Boonville  for  that 
purpose,  and  having  loaded  the  weapon,  returned  home  with  it  in  his 
pocket,  reaching  there  about  noon.  After  putting  his  horse  up  in  the 
stable,  he  went  to  his  house,  and  after  some  talk  with  his  wife  about 
domestic  affairs,  went  down  for  some  corn  into  the  cornfield  where  the 
tragedy  which  forms  the  subject  of  the  present  prosecution,  occurred. 

Speaking  of  the  instructions  generdl}',  and  taking  them  as  a  whole, 
they  are  such  as  have  frequently  received  the  approval  of  this  court. 
Express  objection  has,  however,  been  taken  to  the  eighth  instruction 
couched  in  this  language  : 

"  If  you  find  from  the  evidence  that  the  defendant  armed  himself 
with  a  deadly  weapon  and  went  to  where  the  deceased  was,  expect- 
ing the  deceased  to  assault  him,  and  with  the  intent  of  inflicting 
death  or  great  personal  injury  upon  the  deceased,  then  he  can  not  be 
justified  upon  the  ground  of  self-defence,  even  though  you  should  find 
that  the  deceased  was  about  to  kill  him  or  inflict  upon  him  some  great 
personal  injury.  But  the  fact  that  he  went  to  the  field  where  the  de- 
ceased was  would  not  deprive  him  of  the  right  of  self-defence  if  he  went 
with  some  other  purpose  and  not  with  the  expectation  that  a  difliculty 
would  arise,  and  with  the  intent  of  inflicting  death  or  a  great  personal 
injury  upon  the  deceased." 

The  fact  that  defendant  expected  an  attack  did  not  abate  by  one  jot 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  self-defence  is  given.  — 
Ed. 

36 


562 


CREIGHTON   V.   COMMONWEALTH.  [CHAP.  IX. 


or  tittle  his  right  to  arm  himself  in  his  own  proper  defence,  nor  to  go 
where  he  would,  after  thus  arming  himself,  so  long  as  he  did  no  overt 
act  or  made  no  hostile  demonstrations  toward  Fine.  Defendant  was 
where  he  had  a  right  to  be,  the  land  belonged  to  his  wife;  he  had  a 
right  to  see  that  proper  division  was  made  of  the  crop,  and  to  oversee 
su'ch  division.     State  v.  Forsythe,  89  Mo.  667. 

If  the  mere  expectation  of  an  assault  from  an  adversary  is  to  deprive 
the  expectant  of  the  right  of  self-defence,  merely  because  he  goes  armed 
in  the  vicinity  of  his  enemy,  or  goes  out  prepared  upon  the  highway 
where  he  is  likely  at  any  moment  to  meet  him,  then  he  has  armed  him- 
self in  vain,  and  self-defence  ceases  wherever  expectation  begins. 

We  do  not  so  understand  the  law.  The  very  object  of  arming  one- 
self is  not  to  destroy  expectation  of  a  threatened  attack,  but  to  be 
prepared  for  it  should  it  unfortunately  come.  Our  legislature  has 
sanctioned  this  view  by  making  the  carrying  of  concealed  weapons 
non-punishable,  when  the  accused  has  been  threatend  with  great  bodily 
harm,  etc.  R.  S.  1889,  sec.  3503.  The  instruction  must,  therefore,  be 
ruled  erroneous. 


CREIGHTON  v.  COMMONWEALTH. 
Court  of  Appeals  of  Kentccky.      1886. 

[Reported  84  Kentucky,  103.] 

Pryor,  J.^  The  case  under  consideration  has  been  heretofore  in  this 
court,  and  the  judgment  of  conviction  reversed. 

The 'appellant  was  indicted,  tried,  and  convicted  of  manslaughter  for 
the  killing  of  Ambrose  Wilson. 

It  is  claimed  by  the  accused  that  Wilson  attempted  to  arrest  him  for 
a  misdemeanor  when  he  was  not  a  peace  officer,  and  had  no  authority 
to  take  charge  of  his  person  or  make  the  arrest,  and  that  in  the  un- 
lawful conduct  of  Wilson  originated  the  altercation  resulting  in  his 
death.  This  court  held  in  the  former  opinion  (83  Ky.  142)  that  the 
deceased  was  not  a  peace  officer,  and  in  attempting  to  make  the  arrest 
was  guilty  of  a  trespass,  and  that  this  fact  should  not  have  been  ex- 
cluded from  the  consideration  of  the  jury. 

In  resisting  the  arrest  —  and  this  the  accused  had  the  right  to  do  — 
he  could  not  take  the  life  of  Wilson  unless  his  own  life  was  in  danger, 
or  to  save  his  person  from  great  bodily  injur}-.  If  either  fact  existed, 
or  if  he  had  reasonable  grounds  to  believe,  and  did  believe,  that  he  was 
in  imminent  peril  of  losing  his  life,  then,  for  his  own  protection,  he  had 
the  right  to  take  the  life  of  the  deceased. 

The  right  of  protection  against  all  forcible  attacks  upon  the  person 

1  Part  of  the  opinion  only  is  given. 


SECT.  I.]  CREIGHTON   V.    COMMONWEALTH.  563 

belongs  to  every  man ;  but  the  extent  to  which  this  may  go,  or  the 
manner  of  defence,  is  an  important  inquiry.  Human  life  cannot  be 
taken  unless  to  protect  the  life  of  another,  or  prevent  the  infliction  of 
some  great  bodily  injury,  and  the  degree  of  force  to  be  used  must  be 
determined  by  the  character  of  the  attack  made.  "Although  a  man 
will  not  be  justified,  then,  if  he  kill  in  defence  against  an  illegal  arrest 
of  an  ordinary  character,  yet  the  law  sets  such  a  high  value  upon  the 
liberty  of  the  citizen  that  an  attempt  to  arrest  him  unlawfully  is 
esteemed  a  great  provocation,  such  as  will  reduce  a  killing  in  the 
resistance  of  such  an  arrest  to  manslaughter."  Commonwealth  v. 
Carey,  12  Cush.  246;  Roberts  v.  State,  14  Mo.  138;  1  Hale's  Pleas 
of  the  Crown,  457 ;  note  to  Horrigan  &  Thompson's  Cases  on  Self- 
Defence,  p.  816. 

Bishop  says:  "  The  attempt  to  take  away  one's  liberty  is  not  such 
an  aggression  as  may  be  resisted  to  the  death.  Nothing  short  of  an 
endeavor  to  destroy  life  will  justify  the  taking  of  life,  is  a  doctrine  that 
prevails  in  such  a  case."     1  Bishop's  Crim.  Law,  §  868. 

At  first  impression  it  would  seem  that  in  the  attempt  to  deprive  one 
wrongfully  of  his  personal  liberty,  the  party  assaulted  should  be  per- 
mitted to  use  all  the  force  necessary  to  release  himself  from  the  unlawful 
arrest,  or  to  prevent  the  imprisonment ;  for  life  being  valueless  without 
liberty,  the  modes  of  defence  for  the  preservation  of  human  Ufe  should 
be  allowed  for  the  maintenance  of  human  liberty. 

Mr.  Bishop  says:  "The  reason  why  a  man  may  not  oppose  an 
attempt  on  his  liberty  by  the  same  extreme  measures  permissible  in  an 
attempt  on  his  life,  may  be  because  liberty  can  be  secured  by  a  resort 
to  the  laws."     1  Bishop's  Crim.  Law,  §  868. 

There  are  cases  in  which  the  party  subjected  to  the  unlawful  arrest 
may  resist,  even  to  taking  the  life  of  the  wrong-doer.  Where  the 
attempt,  says  Mr.  Bishop,  is  to  convey  one  by  force  beyond  the  reach 
of  law,  or  to  carry  him  out  of  the  country,  in  such  extreme  cases  the 
party  would  be  justified  in  resisting  to  the  death  of  his  adversary. 

In  the  present  case  the  court  below  told  the  jury  "  that  the  arrest  of 
the  accused  was  unlawful,  and  that  the  latter  had  the  right  to  resist 
the  arrest  by  the  use  of  such  force,  but  only  such  force,  as  was  neces- 
sary, or  seemed  to  him  (the  defendant),  in  the  exercise  of  a  reasonable 
judgment,  to  be  necessary  to  repel  the  force  used  by  AVilson  in  attempt- 
ing to  arrest  him  ;  and  if  the  jury  believe  from  the  evidence  that  the 
defendant,  at  the  time  he  shot  and  killed  Wilson,  believed,  and  had 
reasonable  grounds  to  believe,  that  he  was  then  and  there  in  immediate 
danger  of  losing  his  own  life,  or  of  great  bodily  harm  at  the  hands  of 
said  Wilson,  and  that  to  shoot  said  Wilson  was  necessary,  or  seemed 
to  the  defendant,  in  the  exercise  of  a  reasonable  judgment,  to  be  neces- 
sary, to  avert  the  danger,  real  or  to  him  apparent,  as  before  stated,  the 
jury  should  find  him  not  guilty." 

Learned  counsel  for  the  defence,  in  response  to  the  argument  by  the 
attorney  for  the  State,  insisted  that  his  client  had  the  right  to  use  such 


564  STATE   V.   SHERMAN.  [CHAP,  IX. 

force,  and  no  more,  as  was  necessary  to  resist  the  arrest  and  prevent 
an  unlawful  imprisonment,  and  that  the  danger  to  life  or  the  fear  of 
great  bodily  harm  should  have  been  eliminated  from  the  instruction. 
However  persuasive  his  argument,  and  conceding  that  any  other  arrest 
and  imprisonment  than  that  which  is  in  accordance  with  law  and  neces- 
sary for  the  ends  of  public  justice  is  inconsistent  with  civil  liberty, 
still  the  enjoyment  of  the  absolute  right  of  personal  liberty  cannot  be 
asserted  by  taking  the  lives  of  those  restraining  its  exercise,  unless  the 
attempt  to  prevent  its  enjoyment  endangers  the  life  of  the  citizen,  or 
subjects  him  to  great  bodily  harm. 

The  law  has  merely  said  to  the  citizen  that,  although  your  liberty 
has  been  restrained,  you  cannot  deprive  the  aggressor  of  his  life  iu 
order  to  regain  it,  unless  j'ou  are  in  danger  of  losing  your  own  life. 

Such  was  the  instruction  given  bv  the  court  below,  and  the  accused 
having  been  found  guilty  of  manslaughter  only,  we  perceive  no  reason 
for  disturbing  the  judgment,  and  the  same  is  now  affirmed. 

/7_7  ^^  /^  — — • 

/X^  Cj^_^^Uj  state  v.   SHERMAN. 

iL  \^-^'  ^,     c5  ^  V       Supreme  Court  of  Rhode  Island.     1889. 

'— — '        ^'^         ^  ^Reported  16  Bhodt  Island,  631.] 

DuRFEE,  C.  J.^  On  trial  in  tlie  Court  of  Common  Pleas  the  com- 
plainant testified  that,  seeing  the  defendants  tearing  down  the  cause- 
way, he  ran  to  where  said  John  P.  Sherman  was  at  work,  and  put  his 
foot  on  a  stone  which  said  John  P.  was  prying  up  with  a  crowbar ; 
that  said  John  P.  raised  the  crowbar  as  if  to  strike  him,  whereupon  he 
seized  it  in  self-defence,  and  some  one,  he  knew  not  who,  knocked 
him  down,  and  that  said  John  P.  twice  threw  him  from  the  causeway 
into  the  water.  His  testimony  was  corroborated  by  other  witnesses. 
On  the  other  hand,  said  John  P.  testified  that  the  complainant  rushed 
down  and  seized  him,  that  he  never  either  struck  or  struck  at  him,  but 
only  pushed  him  away,  using  no  more  force  than  was  necessary  for 
self-protection,  as  the  complainant  repeatedly  attacked  him.  Other 
witnesses  corroborated  him.  He  also  testified  that  the  open  water  at 
the  end  of  the  causeway  was  too  shallow  for  him  to  pass  without  get- 
ting out  of  his  boat  and  dragging  it.  After  the  case  had  been  argued 
to  the  jury,  he  asked  the  court  to  instruct  the  jury  as  follows,  to  wit : 
"  That  a  man  in  a  public  place,  if  attacked,  may  resist  with  his  natural 
weapons,  using  no  more  force  than  is  necessary,  without  retreating." 
The  court  refused,  but  did  instruct  them  that  in  such  a  case  a  man  must 
retreat,  if  he  can  safely,  and  that  the  defendant  did  not  testify  that 
there  was  anything  to  prevent  his  retreating.     The  defendant  excepted 

1  Part  of  the  opinion  only  is  given. 


SECT.  I.]  STATE  V.    SHERMAN.  565 

to  both  the  refusal  and  the  instruction.  The  bill  of  exceptions  sets 
forth  that  the  complainant's  counsel  stated,  in  his  argument  to  the 
jur}',  that  he  did  not  claim  for  the  complainant  the  right  to  use  an\- 
force  to  protect  the  causeway,  or  any  force  against  the  defendant,  ex- 
cept such  as  he  might  lawfully  use  in  any  public  place. 

We  think  the  court  below  erred.  Generally  a  person  wrongfully 
assailed  cannot  justify  the  killing  of  his  assailant  in  mere  self-defence, 
if  he  can  safely  avoid  it  by  retreating.  Retreat  is  not  always  obliga- 
tor}', even  to  avoid  killing  ;  for  if  attack  be  made  with  deadly  weapons, 
or  with  murderous  or  felonious  intent,  the  assailed  ma}"  stand  his 
ground,  and  if  need  be  kill  his  assailant.  But  there  is  no  question  of 
killing  here,  and  we  know  of  no  case  which  holds  that  retreat  is  obli- 
gatory simply  to  avoid  a  conflict.  Where  there  is  no  homicide  the 
rule  generally  laid  down  is,  that  the  assaulted  person  may  defend  him- 
self, opposing  force  to  force,  using  so  much  force  as  is  necessary  for 
his  protection,  and  can  be  held  to  answer  only  for  exceeding  such 
degree.  Mr.  Bishop,  in  his  work  on  Criminal  Law,  §  849,  says: 
"  The  assailed  person  is  not  permitted  to  stand  and  kill  his  adversary, 
if  there  is  a  way  of  escape  open  to  him,  while  yet  he  may  repel  force 
by  force,  and,  within  limits  differing  with  the  facts  of  the  case,  give 
back  blow  for  blow."  See,  also,  1  Wharton's  Criminal  Law,  §  99 ; 
Stephen's  Digest  Criminal  Law,  art.  200 ;  May's  Criminal  Law,  Stu- 
dents' Series,  §  62.  Mr.  May's  language  is:  "There  seems  to  be  no 
necessity  for  retreating  or  endeavoring  to  escape  from  the  assailant 
before  resorting  to  any  means  of  self-defence  short  of  those  which 
threaten  the  assailant's  life."  In  Commonwealth  v.  Drum,  58  Pa. 
1,  21,  22,  where  the  defendant,  who  was  indicted  for  murder,  set  up 
that  he  acted  in  self-defence,  the  court  in  charging  the  jury  used  the 
following  language :  "The  right  to  stand  in  self-defence  without  flee- 
ing has  been  strongly  asserted  by  the  defence.  It  is  certainly  true 
that  every  citizen  may  rightfully  traverse  the  street,  or  may  stand  in 
all  proper  places,  and  need  not  flee  from  every  one  who  chooses  lo 
assail  him.  Without  this  our  liberties  would  be  worthless.  But  the 
law  does  not  apply  this  right  to  homicide."  There  are  cases,  however, 
which  manifest  a  disposition  to  apply  the  same  rule  generally.  Run- 
yan  v.  The  State,  57  Ind.  80 ;  Erwin  v.  State,  29  Ohio  St.  186. 

In  Gallagher  v.  The  State,  3  Minn.  270,  the  defendant  was  com- 
plained of  for  assault  and  battery,  and  set  up  in  justification  that  he 
acted  in  self-defence,  the  complainant  having  stepped  forward  with 
his  cane  raised,  as  if  about  to  strike.  The  lower  court,  on  trial,  ruled 
as  follows:  "Where  a  person  is  approached  by  another  with  a  cane 
raised  in  a  hostile  manner,  the  former  is  not  justified  in  striking  un- 
necessarily, but  is  bound  to  retreat  reasonably  before  striking."  On 
error  the  Supreme  Court  held  the  ruling  to  be  erroneous.  "  Such  is 
not  the  law,"  say  the  court ;  "  but  the  party  thus  assaulted  may  strike, 
or  use  a  suflScient  degree  of  force  to  prevent  the  intended  blow,  with- 
out retreating  at  all."  The  case  is  exactly  in  point.  The  exception 
is  therefore  sustained,  and  the  cause  will  be  remitted  for  a  new  trial. 


566  REGINA   V.   ROSE,  [CHAP.  IX. 

SECTION  11. 

Defence  of  Other  Persons. 

1  East  P.  C.  289,  290.  In  all  cases  where  a  felonious  attack  is 
made,  a  servant  or  any  other  person  present  may  lawfully  interpose  to 
prevent  the  mischief  intended  ;  and  if  death  ensue,  the  party  so  inter- 
posing will  be  justified.  Thus,  in  the  instances  of  arson  or  burglary, 
a  lodger  may  lawfully  kill  the  assailant  in  the  same  manner  as  the 
owner  himself  might  do.  .  .  .  But  the  case  of  third  persons  interfer- 
ing in  mutual  combats  or  sudden  affrays,  except  as  mediators  to  pre- 
serve the  peace,  requires  greater  caution.  ...  If  A.,  a  stranger,  take 
part  on  a  sudden  with  either  B.  or  C.  who  are  engaged  together  in  an 
affi-ay,  wherein  both  are  in  the  eye  of  the  law  blamable,  although 
perhaps  in  different  degrees ;  and  afterwards  kill  either,  although  in 
the  necessary  defence  of  the  other,  it  cannot  be  less  than  manslaughter ; 
for  he  who  thus  officiously  interferes  without  any  previous  knowledge 
of  the  merits  of  the  dispute,  not  to  preserve  the  peace  but  to  partake 
in  the  broil,  is  himself  highly  culpable,  —  having  less  provocation  lo 
heat  his  blood  than  probably  the  parties  themselves  had  who  originally 
engaged  in  the  dispute.'^ 


REGINA   y.   ROSE. 
Oxford  Assizes.     1884. 

[Reported  1 5  Cox  C.  C.  540.] 

The  prisoner  was  indicted  for  the  wilful  murder  of  his  father,  John 
William  Rose,  at  Witne}',  on  the  27th  day  of  September. 

The  material  facts  proved  were  as  follows :  The  prisoner,  a  weakly 
young  man  of  about  twent3'-two  3'ears  of  age,  was  at  the  time  of  the 
alleged  murder  living  with  his  father,  mother,  and  sisters  at  Witney. 
The  father,  who  was  a  very  powerful  man,  had  recently  taken  to  exces- 
sive drinking,  and  while  in  a  state  of  intoxication  was  possessed  with 
the  idea  that  his  wife  was  unfaithful  to  him.  He  had  on  more  than  one 
occasion  threatened  to  take  away  her  life,  and  so  firmly  impressed  was 
she  with  the  idea  that  these  were  no  idle  threats  that  the  prisoner's 
mother  had  frequentl}'  concealed  everything  in  the  house  which  could 
be  used  as  a  weapon. 

On  the  night  in  question  the  family  retired  to  their  bedrooms,  which 
were  situated   adjoining  to  one  another,   about  nine  o'clock.     The 

1  For  the  analogous  case  of  a  stranger  interfering  to  rescue  one  who  having  been  ille- 
gally arrested  had  nevertheless  submitted,  see  Rex  v.  Tooley,  2  Ld.  Ray.  1296  ; 
Hugget's  Case,  Kel.  59;  Adey's  Case,  1  Leach,  245;  Staph.  Dig.'Cr.  L.  372  — Ed. 


SECT.  II.]  REGINA   V.    ROSE.  567 

deceased  man  appears  to  have  immediatel}'  commenced  abusing  and 
illtreating  bis  wife,  accusing  her  of  unfaithfuhiess  to  him  and  threaten- 
ing to  murder  her.  On  several  occasions  she  retired  for  safet}-  to  her 
daughter's  room  ;  on  the  last  occasion  her  husband  pursued  her,  and 
seizing  her  dragged  her  towards  the  top  of  the  stairs,  threatening  to 
push  her  down.  He  then  said  he  would  cut  her  throat,  left  her  saying 
he  was  going  to  fetch  the  knife  which  all  the  family  seem  to  have 
known  was  in  his  room,  and  then  rushing  back  seized  his  wife,  and 
forced  her  up  against  the  balusters,  holding  her  in  such  a  position  that 
the  daughters  seem  to  have  thought  he  was  actually  cutting  her  throat. 
The  daughters  and  mother  shouted  "  Murder  !  "  and  the  prisoner,  run- 
ning out  of  his  room,  found  his  father  and  mother  in  the  position 
described.  No  evidence  was  given  that  the  deceased  man  had  any 
knife  in  his  hand,  and  all  the  witnesses  said  that  they  did  not  see  then 
or  afterwards  find  his  knife. 

The  prisoner  fired  one  shot  (according  to  his  own  account)  to  frighten 
his  father,  but  no  trace  of  an}-  bullet  could  be  found,  and  immediately 
after  he  fired  another  shot  which,  striking  his  father  in  the  eye,  lodged 
in  the  brain  and  caused  his  death  in  about  twelve  hours.  On  his  arrest 
the  prisoner  said,  "  Father  was  murdering  Mother.  I  shot  on  one  side 
to  frighten  him  ;  he  would  not  leave  her,  so  I  shot  him." 

In  cross-examination  the  deceased  man's  employer  said  that  the  pris- 
oner's father  was  the  strongest  man  he  had  ever  seen,  and  the  prisoner 
would  not  have  had  the  slightest  chance  in  a  hand-to-hand  encounter 
with  him. 

The  defence  set  up  was  that  the  case  was  one  of  excusable  homicide. 

His  Lordship  [Lopes,  J.]  in  the  course  of  his  summing  up  said  : 
Homicide  is  excusable  if  a  person  takes  away  the  life  of  another  m 
defending  himself,  if  the  fatal  blow  which  takes  away  life  is  necessary 
for  his  preservation.  The  law  says  not  only  in  self-defence  such  as  I 
have  described  may  homicide  be  excusable,  but  also  it  may  be  excusable 
if  the  fatal  blow  inflicted  was  necessary  for  the  preservation  of  life.  In 
the  case  of  parent  and  child,  if  the  parent  has  reason  to  believe  that  the 
life  of  a  child  is  in  imminent  danger  by  reason  of  an  assault  by  another 
person  and  that  the  only  possible,  fair,  and  reasonable  means  of  saving 
the  child's  life  is  by  doing  something  which  will  cause  the  death  of  that 
person,  the  law  excuses  that  act.  It  is  the  same  of  a  child  with  regard 
to  a  parent ;  it  is  the  same  in  the  case  of  husband  and  wife.  Therefore 
I  propose  to  lay  the  law  before  you  in  this  form :  If  you  think,  having 
regard  to  the  evidence  and  drawing  fair  and  proper  inferences  from  it, 
that  the  prisoner  at  the  bar  acted  without  vindictive  feeling  towards  his 
father  when  he  fired  the  shot,  if  you  think  that  at  the  time  he  fired  that 
shot  he  honestly  believed  and  had  reasonable  grounds  for  the  belief  that 
his  mother's  life  was  in  imminent  peril,  and  that  the  fatal  shot  which 
he  fired  was  absolutel}^  necessary  for  the  preservation  of  her  life,  then 
he  ought  to  be  excused,  and  the  law  will  excuse  him  from  the  conse- 
quences of  the  homicide.     If,  however,  on  the  other  hand,  you  cannot 


568  PEOPLE  V.  COOK.  [chap.  IX. 

come  to  that  conclusion,  if  3'ou  think,  and  think  without  any  reasonable 
doubt,  that  it  is  not  a  fair  inference  to  be  drawn  from  the  evidence,  but 
are  clearl}'  of  opinion  that  he  acted  vindictiveh*  and  had  not  such  a 
belief  as  I  have  described  to  3'ou,  or  had  not  reasonable  grounds  for 
such  a  belief,  then  you  must  find  him  guilty  of  murder. 

Verdict,  Not  guilty} 


PEOPLE   17.   COOK. 
Supreme  Court  of  Michigan.     1878. 

[Reported  39  Michigan,  236.] 

Marston,  J.'  The  respondent  was  tried  upon  an  information  charg- 
ing him  with  having  committed  the  crime  of  murder,  and  was  convicted 
of  manslaughter.  The  case  comes  here  upon  exceptions  before  sen- 
tence. The  shooting  of  the  deceased  by  respondent  was  not  denied  on 
the  trial.  The  defence  relied  on  was  justifiable  homicide,  committed  in 
order  to  prevent  the  abduction  and  seduction  of  respondent's  sister  by 
the  deceased. 

There  is  not  a  scintilla  of  evidence  in  the  case  to  establish  this  de- 
fence, unless  the  fact  that  he  had  reason  to  believe  that  deceased  was 
about  to  seduce  and  debauch  his  sister  would  be  a  justification. 

It  was  said  that  the  testimony  given  on  the  trial  showed  the  reputa- 
tion of  the  deceased  for  chastity  was  bad,  of  which  fact  the  respondent 
had  knowledge ;  that  deceased  had  been  arrested  for  the  seduction  of  a 
Miss  Briggs ;  that  he  had  publicly  stated  in  respondent's  presence  and 
hearing  the  manner  in  which  he  had  seduced  her;  that  while  under 
such  arrest  he  had  stated  that  he  wanted  to  seduce  just  one  more  girl, 
Sarah  Cook,  but  this  fact  had  not  been  brought  to  respondent's  knowl- 
edge;  that  the  night  before  the  shooting  deceased  and  Sarah  Cook 
had  been  out  together  quite  late ;  that  on  the  morning  of  the  shooting, 
respondent's  sister,  Sarah  Cook,  left  the  breakfast  table  and  went  over 
to  the  house  of  deceased  ;  that  she  shortly  afterwards  returned,  took 
her  wearing  apparel,  and  announced  that  she  was  going  off  with  Batey, 
bade  the  family  good-by,  and  said  they  might  never  see  her  again. 

The  defence  claimed  the  farther  fact  to  be  that  Sarah  Cook  at  that 
time  was  under  the  influence  of  drugs,  administered  to  her  by  deceased, 
in  order  to  enable  him  to  accomplish  his  purpose,  and  that  the  shooting 
was  believed  by  the  respondent  to  be  necessary  in  order  to  prevent  such 
a  result. 

Blackstone  says  the  English  law  justifies  a  woman  killing  one  who 
attempts  to  ravish  her,  and  so  too  the  husband  or  father  may  justify 

1  See  Campbell  v.  Com.,  88  Ky.  402.     As  to  the  right  of  a  U.  a  marshal  to  defend 

a  judge,  see  In  re  Neagle,  135  V.  S.  1.  —  Ed. 
*  Part  of  the  opinion  only  is  given. 


SECT.  III.]  •  ANONYMOUS.  569 

killing  a  man  who  attempts  a  rape  upon  bis  wife  or  daughter ;  but  not 
if  he  takes  them  in  adultery  by  consent,  for  the  one  is  forcible  and  felo- 
nious but  not  the  other.  The  principle,  he  says,  which  runs  through 
all  laws  seems  to  be  this  ;  that  where  a  crime  in  itself  capital  is  endeav- 
ored to  be  committed  by  force,  it  is  lawful  to  repel  that  force  by  the 
death  of  the  party  attempting.  It  is  not  claimed  that  any  direct  force 
was  attempted  in  this  case,  but  that  the  felony  intended  was  to  be 
accomplished  by  the  assistance  of  drugs  administered  or  to  be  admin- 
istered, and  that  where  the  power  of  resistance  is  thus  overcome,  and 
advantage  thereof  taken  to  violate  her  person,  the  act  would  be  rape, 
and  for  such  purpose  the  law  would  conclusively  presume  that  sufficient 
force  was  used,  at  the  time  intercourse  took  place,  to  so  characterize 
the  act.  The  present  case,  however,  falls  short  of  coming  within  the 
principles  which  would  justify  the  taking  of  life.  The  utmost  that 
can  here  be  said  is  that  the  deceased  had  used  and  was  likely  to  use 
fraudulent  means,  by  administering  drugs,  to  excite  the  passions,  or 
overcome  the  resistance  he  otherwise  would  have  been  sure  to  encounter, 
in  order  to  accomplish  his  purpose.  So  far  as  he  had  then  gone,  even 
conceding  all  that  is  claimed,  fraudulent  and  not  forcible  means  had 
been  resorted  to,  which  would  not  create  that  necessity  for  immediate 
action  on  the  part  of  the  accused,  by  the  taking  of  life,  to  prevent  an 
attempted  forcible  felony.  Ample  time  and  opportunity  existed  to  en- 
able the  accused  to  resort  to  other  available  and  adequate  means  to 
prevent  the  anticipated  injury.  The  evil  threatened  could  have  been 
prevented  by  other  means  within  the  reach  and  power  of  the  accused. 
There  was  no  such  immediate  danger,  nor  would  the  facts  warrant  the 
apprehension  of  such  immediate  danger  as  would  justify  a  resort  to  the 
means  adopted. 


SECTION  III. 

Defence  of  Property. 

ANONYMOUS. 
King's  Bench.    1506. 

[Beported  Year  Book,  21  H.  VII.  39,  pi  50.] 

FiNETJX,  C.  J.  If  one  is  in  his  house,  and  hears  that  such  a  one  will 
come  to  his  house  to  beat  him,  he  may  well  assemble  folk  of  his  friends 
and  neighbors  to  help  him,  and  aid  in  the  safeguard  of  his  person  ;  but 
if  one  were  threatened  that  if  he  should  come  to  such  a  market,  or  into 
such  a  place,  he  should  there  be  beaten,  in  that  case  he  could  not  assem- 
ble persons  to  help  him  go  there  in  personal  safety,  for  he  need  not  go 
there,  and  he  may  have  a  remedy  hy  surety  of  the  peace. ^    But  a  man's 

1  See  Succession  of  Irwin,  12  La.  Ann.  676.  —  Ed. 


570  WILD'S   CASE.  [chap.  IX. 

house  is  his  castle  and  his  defence,  and  where  he  has  a  peculiar  right 
to  stay,  &c.  And  all  the  justices  agreed  that  a  servant  may  beat  one 
in  defence  of  his  master.  Tremaine  J.,  said  that  a  servant  may  kill 
one  in  defence  of  his  master's  life,  if  he  cannot  otherwise  save  it.  T.  14. 
H.  7.  Tr.  246. 


COOPER'S   CASE. 
King's  Bench.     1639. 

[Reported  CroJce  Car.  544.] 

Cooper  being  indicted  in  the  county  of  Surrey  of  the  murder  of  W.  L. 
in  Southwark  with  a  spit,  he  pleaded  not  guilty  ;  and  upon  his  arraign- 
ment it  appeared  that  the  said  Cooper,  being  a  prisoner  in  the  King's 
Bench,  and  lying  in  the  house  of  one  Anne  Carricke,  wlio  kept  a  tavern 
in  the  Rules,  the  said  W.  L.  at  one  of  the  clock  in  the  night,  assaulted 
the  said  house,  and  offered  to  break  open  the  door,  and  brake  a  staple 
thereof,  and  swore  he  would  enter  the  house  and  slit  the  nose  of  the 
said  Anne  Carricke,  because  she  was  a  bawd,  and  kept  a  bawdy-house. 
And  the  said  Cooper  dissuading  him  from  those  courses,  and  reprehend- 
ing him,  he  swore,  that  if  he  could  enter  he  would  cut  the  said  Cooper's 
throat ;  and  he  brake  a  window  in  the  lower  room  of  the  house,  and 
thrust  his  rapier  in  at  the  window  against  the  said  Cooper,  who  in 
defence  of  the  house  and  himself  thrust  the  said  W.  L.  into  the  eye,  of 
which  stroke  he  died. 

The  question  was,  whether  this  were  within  the  statute  of  24  Hen. 
8,  c.  5. 

The  Court  was  of  opinion,  that  if  it  were  true  he  brake  the  house 
with  an  intent  to  commit  burglar^-,  or  to  kill  any  therein,  and  a  part}'' 
within  the  house  (although  he  be  not  the  master,  but  a  lodger  or 
sojourner  therein)  kill  him  who  made  the  assault  and  intended  mischief 
to  any  in  it,  that  it  is  not  felon}',  but  excusable  by  the  said  statute  of 
24  Hen.  8,  c.  5,  which  was  made  in  affirmance  of  the  common  law ; 
wherefore  the  jury  were  appointed  to  consider  of  the  circumstances  of 
the  fact ;  and  they,  being  a  substantial  jury  of  Surrey,  found  the  said 
Cooper  not  guilty  upon  this  indictment ;  whereupon  he  was  discharged. 


3/0 

WILD'S  CASE. 

Liverpool  Assizes.    1837. 

[Reported  2  Lewin,  214.] 

The  prisoner  was  indicted  for  manslaughter. 

It  appeared  that  the  deceased  had  entered  the  prisoner's  house  in  his 
absence.    The  prisoner  on  returning  home  found  him  there,  and  desired 


SECT.  III.] 


STATE   V.   PATTERSON. 


571 


him  to  withdraw,  but  he  refused  to  go.  Upon  this  words  arose  between 
them,  and  the  prisoner,  becoming  excited,  proceeded  to  use  force,  and 
by  a  liicli  which  he  gave  to  the  deceased,  caused  an  injury  which  pro- 
duced his  death. 

Alderson,  B.  a  kick  is  not  a  justifiable  mode  of  turning  a  man  out 
of  your  house,  though  he  be  a  trespasser.  If  a  person  becomes  excited, 
and  being  so  excited  gives  to  another  a  kick,  it  is  an  unjustifiable  act. 

If  the  deceased  would  not  have  died  but  for  the  injur}'  he  received, 
the  prisoner  having  unlawfully  caused  that  injury,  he  is  guilty  of  man- 
slaughter. ^ 


2>U 


L^V^ 


HU 


STATE  V.  PATTERSON. 
Supreme  Court  of  Vermont.    1873. 

[Reported  45  Vermont,  308.] 

Barrett,  J.^  It  is  not  deemed  needful  for  the  purposes  of  this  case, 
■with  reference  to  its  future  prosecution,  to  discuss  specifically  any  other 
subject,  except  that  of  the  dwelling-house  being  one's  castle,  as  bearing 
upon  his  right  to  kill  or  to  use  deadly  weapons  in  defence  of  it.  This 
is  presented  in  the  third  request  in  behalf  of  the  respondent,  which  is, 
in  the  language  used  by  Holroyd,  J.,  in  charging  the  jury  in  Meade's 
Case,  infra,  viz. :  "The  making  of  an  attack  upon  a  dwelling,  and  espe- 
cially in  the  night,  the  law  regards  as  equivalent  to  an  assault  on  a 
man's  person,  for  a  man's  house  is  his  castle."  The  purpose  of  this 
request  seems  to  have  been  to  justify  the  killing  with  the  gun,  as  a 
lawful  mode  and  means  of  defending  the  castle,  as  well  as  the  person 
within  it.  Looking  to  the  state  of  the  evidence,  it  is  not  altogether 
obvious  what  there  was  in  the  case  to  warrant  its  being  claimed  that 
the  respondent  killed  Flanders  as  a  means  of  defending  himself  or  his 
castle.  It  was  claimed  in  behalf  of  the  prosecution,  and  the  evidence 
given  in  that  behalf  showed  that  the  gun  was  not  fired  at  Flanders  as 
a  measure  of  force,  to  repel  and  prevent  him  from  breaking  into  the 
house.  Moreover,  in  the  exceptions  it  is  said  :  "The  respondent  testi- 
fied that  he  fired  to  the  ground,  and  the  object  in  firing  was,  not  to  hit 
them,  but  to  scare  them  away."  The  respondent  seems  not  to  have 
regarded  it  a  case,  or  a  conjuncture,  in  which  it  was  needful  or  expedi- 
ent to  use  a  deadly  weapon  as  a  means  of  forceful  resistance  to  meet 
and  repel  an  assault  on  his  house  —  whatever  such  assault  in  fact 
^as  —  or  to  protect  himself  from  any  threatened  or  feared  assault  on 
his  person.  The  gun,  loaded  with  powder  alone,  would  have  served  all 
the  needs  of  the  occasion,  and  of  the  exigency  which  the  respondent 
supposed  then  to  exist  and  to  press  upon  him. 

Nevertheless,  the  point  was  made  by  said  third  request.    It  was  indi- 

*  Part  of  the  opinion,' not  relating  to  the  question  of  justification,  has  been  omitted. 


572 


STATE  V.   PATTERSON.  [CHAP.  IX. 


cated  in  the  charge  that  the  case  State  v.  Hooker,  17  Vt.  670,  was 
invoked  in  support  of  it,  and  it  is  cited  in  this  court  for  the  same  pur- 
pose. That  case  professes  to  decide  only  the  question  involved  in  and 
presented  by  it,  viz.,  whether  it  was  criminal  under  the  statute  for  the 
respondent  to  resist  an  officer  in  the  service  of  civil  process  within  his 
dwelling-house,  such  officer  having  unlawfully  broken  into  the  house 
for  the  purpose  of  making  such  service.  The  language  of  the  opinion 
is  to  be  interpreted  with  reference  to  the  case  and  the  question.  That 
case  in  no  respect  involved  the  subject  of  the  use  of  a  deadly  weapon 
with  fatal  effect  in  defence  of  the  castle ;  and  it  is  not  to  be  supposed 
that  the  judge  who  drew  up  the  opinion  was  undertaking  to  discuss  or 
propound  the  law  of  that  subject. 

To  come,  then,  to  the  subject  as  it  is  involved  in  this  case  under  said 
third  request.  In  Foster's  Crown  Law,  319,  it  is  said,  "The  books 
say  that  a  man's  house  is  his  castle  for  safety  and  repose  to  himself  and 
family."  In  Cook's  Case,  Cro.  Car.  537,  an  officer,  with  a  capias  ad 
satisfaciendum,  went  with  other  officers,  for  the  purpose  of  executing 
the  same,  to  the  dwelling-house  of  the  respondent,  and,  finding  him 
within,  demanded  of  him  to  open  the  door  and  suffer  them  to  enter. 
He  commanded  them  to  depart,  telling  them  they  should  not  enter. 
Thereupon,  they  broke  a  window,  and  afterwards  went  to  the  door  of 
the  house  and  offered  to  force  it  open,  and  broke  one  of  the  hinges; 
whereupon  Cook  discharged  his  musket  at  the  deceased  and  hit  hira, 
and  he  died  of  the  wound.  "After  argument  at  the  bar,  all  the  justices, 
seriatim,  delivered  their  opinions,  that  it  was  not  murder,  but  man- 
slaughter ;  the  bailiff  was  slain  in  doing  an  unlawful  act  in  seeking  to 
break  open  the  house  to  execute  process  for  a  subject,  and  every  one 
is  to  defend  his  own  house.  Yet<they  all  held  it  was  manslaughter,  for 
he  might  have  resisted  him  without  killing  him  ;  and  when  he  saw  and 
shot  voluntarily  at  him,  it  was  manslaughter." 

That  was  one  of  the  earliest  cases,  and  was  fully  considered  ;  and  it 
has  been  cited  in  all  the  books  on  criminal  law  since  its  decision  in 
1640  (15th  Car.  I.),  —  with  some  incorrectness  of  statement,  in  1  Hale 
P.  C.  458,  and  in  other  books  adopting  Hale's  text.  This  is  in  some 
measure  rectified  by  a  remark,  1  East  P.  C.  321,  322.  See  also  Roscoe 
Cr.  Ev.  758;  also  1  Bishop  Cr.  L.,  §  858,  n.  2  (5th  ed.).  It  is  to  be 
specially  noticed  that  what  made  it  manslaughter  was  that  in  order  to 
defend  his  castle,  it  was  not  necessary  to  kill  the  bailiff. 

The  same  idea  of  necessity,  in  order  to  relieve  the  killing  from  being 
manslaughter,  exists  in  the  case  of  defending  one's  person,  as  stated  in 
1  Hawkins  P.  C.  113  :  "  Homicide  se  defendendo  seems  to  be  when  one 
who  has  no  other  possible  means  of  preserving  his  life  from  one  who 
combats  him  on  a  sudden  quarrel,  or  of  defending  his  person  from  one 
who  attempts  to  beat  him  (especially  if  such  attempt  be  made  upon  him 
in  his  own  house)  kills  the  person  by  whom  he  is  reduced  to  such  an 
inevitable  necessity." 

In  a  learned  note  in  2  Archb.  Cr.  L.  225.  it  is  said  :  "But  when  it  is 


SECT.  III.]  STATE   V.   PATTERSON.  673 

said  that  a  man  may  rightfully  use  as  much  force  as  is  necessary  for  the 
protection  of  his  person  and  property,  it  should  be  recollected  that  this 
rule  is  subject  to  this  most  important  modification,  —  that  he  shall  not, 
except  in  extreme  cases,  endanger  human  life,  or  great  bodily  harm. 
.  .  ,  You  can  only  kill  to  save  life  or  limb,  or  prevent  a  great  crime, 
or  to  accomplish  a  necessary'  public  duty."  It  is,  therefore,  clear  that  if 
one  man  deliberately  kills  another  to  prevent  a  mere  trespass  on  his  prop- 
erty —  whether  that  trespass  could  or  could  not  otherwise  be  prevented 
—  he  is  guilt}'  of  murder.  If,  indeed,  he  had  at  first  used  moderate 
force,  and  this  had  been  returned  with  such  violence  that  his  own  life 
was  endangered,  and  then  he  killed  from  necessit}-,  it  would  have  been 
excusable  homicide.  Not  because  he  could  take  life  to  save  his  prop- 
ert}',  but  he  might  take  the  life  of  the  assailant  to  save  his  own. 

Harcourt's  Case,  5  Eliz.,  stated  1  Hale  P.  C.  485,  486,  shows  that 
this  doctrine  is  not  new.  "Harcourt,  being  in  possession  of  the  house 
by  title,  as  it  seems,  A.  endeavored  to  enter,  and  shot  an  arrow  at  them 
within  the  house,  and  Harcourt,  from  within,  shot  an  arrow  at  those 
that  would  have  entered,  and  killed  one  of  the  company.  This  was 
ruled  manslaughter,  and  it  was  not  se  defendendo,  because  there  was 
no  danger  of  his  life  from  them  without."  What  was  thus  ruled  is  the 
key  to  the  author's  meaning  in  the  next  following  paragraph  of  his  book, 
which  see. 

The  idea  that  is  embodied  in  the  expression  that  a  man's  house  is  his 
castle,  is  not  that  it  is  his  property,  and,  as  such,  he  has  the  right  to 
defend  and  protect  it  by  other  and  more  extreme  means  than  he  might 
lawfully  use  to  defend  and  protect  his  shop,  his  office,  or  his  barn.  The 
sense  in  which  the  house  has  a  peculiar  immunity  is  that  it  is  sacred  for 
the  protection  of  his  person  and_of  his  family.  An  assault  on  the  house 
can  be  regarded  as  an  assault  on  the  person  only  in  case  tlie  purpose 
of  such  assault  be  injury  to  the  person  of  the  occupant  or  members  of 
his  family,  and,  in  order  to  accomplish  this,  the  assailant  attacks  the 
castle  in  order  to  reach  the  inmates.  In  this  view,  it  is  said  and  settled 
that,  in  such  case,  the  inmate  need  not  flee  from  his  house  in  order  to 
escape  from  being  injured  by  the  assailant,  but  he  may  meet  him  at  the 
threshold,  and  prevent  him  from  breaking  in  by  any  means  rendered 
necessary  by  the  exigency  ;  and  upon  the  same  ground  and  reason  as 
one  may  defend  himself  from  peril  of  life,  or  great  bodily  harm,  by 
means  fatal  to  the  assailant,  if  rendered  necessary  by  the  exigency  of 
the  assault. 

This  is  the  meaning  of  what  was  said  by  Holroyd,  J.,  in  charging  the 
jury  in  Meade's  Case,  1  Lewin  C.  C.  184.  Some  exasperated  sailors 
had  ducked  Meade,  and  were  in  the  act  of  throwing  him  into  the  sea, 
when  he  was  rescued  by  the  police.  As  the  gang  were  leaving,  they 
threatened  that  they  would  come  by  night  and  pull  his  house  down. 
In  the  middle  of  the  night  a  great  number  came,  making  menacing 
demonstrations.  Meade,  under  an  apprehension,  as  he  alleged,  that  his 
life  and  property  were  in  danger,  fired  a  pistol,  by  which  one  of  the 


574  STATE   V.   PATTERSON.  [CHAP.  IX. 

party  was  killed.  Meade  was  indicted  for  murder.  Upon  that  state  of 
facts  and  evidence,  the  judge  said  to  the  jury:  "A  civil  trespass  will 
not  excuse  the  firing  of  a  pistol  at  a  trespasser  in  sudden  resentment 
or  anger,  «fec.  .  .  .  But  a  man  is  not  authorized  to  fire  a  pistol  on  every 
intrusion  or  invasion  of  his  house.  He  ought,  if  he  has  reasonable 
opportunity,  to  endeavor  to  remove  him  without  having  recourse  to 
the  last  extremity.  But  the  making  an  attack  upon  a  dwelling,  and 
especially  at  night,  the  law  regards  as  equivalent  to  an  assault  on  a 
man's  person ;  for  a  man's  house  is  his  castle  ;  and,  therefore,  in  the 
eye  of  the  law,  it  is  equivalent  to  an  assault ;  but  no  words  or  singing 
are  equivalent  to  an  assault ;  nor  will  they  authorize  an  assault  in 
return,  «fec.  .  .  .  There  are  cases  where  a  person  in  heat  of  blood  kills 
another,  that  the  law  does  not  deem  it  murder,  but  lowers  the  offence 
to  manslaugliter ;  as,  where  a  party  coming  up  by  way  of  making  an 
attack,  and  without  there  being  any  previous  apprehension  of  danger, 
the  party  attacked,  instead  of  having  recourse  to  a  more  reasonable 
and  less  violent  mode  of  averting  it,  having  an  opportunity  so  to  do, 
fires  on  the  impulse  of  the  moment.  In  the  present  case,  if  you  are  of 
opinion  that  the  prisoner  was  really  attacked,  and  that  the  party  were 
on  the  point  of  breaking  in,  or  likely  to  do  so,  and  execute  the  threats 
of  the  day  before,  he,  perhaps,  was  justified  in  firing  as  he  did.  If  you 
are  of  opinion  that  he  intended  to  fire  over  and  frighten,  then  the  case 
is  one  of  manslaughter  and  not  of  self-defence." 

The  sense  in  which  one's  house  is  his  castle,  and  he  ma^'  defend  him- 
self within  it,  is  shown  by  what  is  said  in  1  Hale  P.  C.  486,  that  "in 
case  he  is  assaulted  in  his  own  house,  he  need  not  flee  as  far  as  he  can, 
as  in  other  cases  of  se  defendendo^  for  he  hath  the  protection  of  his 
house  to  excuse  him  from  flying,  as  that  would  be  to  give  up  the  pro- 
tection of  his  house  to  his  adversary  by  flight."  Now,  set  over  against 
that  what  is  said  in  1  Russell,  662,  and  the  true  distinction  between  the 
house  as  property,  on  the  one  hand,  and  as  castle  for  protection  on  the 
other,  is  very  palpable,  viz. :  "If  A.,  in  defence  of  his  house,  kill  B.,  a 
trespasser,  who  endeavors  to  make  an  entry  upon  it,  it  is,  at  least,  com- 
mon manslaughter,  unless,  indeed,  there  were  danger  of  life  ; "  p.  663. 
"But  where  the  trespass  is  barely  against  the  property  of  another,  the 
law  does  not  admit  the  force  of  the  provocation  as  sufficient  to  warrant 
the  owner  in  making  use  of  a  deadly  or  dangerous  weapon  ;  more  par- 
ticularly if  such  violence  is  used  after  the  party  has  desisted  from  the 
trespass."  In  Carroll  v.  State,  23  Ala.  36,  it  is  said :  "  The  owner  may 
resist  the  entry  into  his  house,  but  he  has  no  right  to  kill,  unless  it  be 
rendered  necessary  in  order  to  prevent  a  felonious  destruction  of  his 
property,  or  to  defend  himself  against  loss  of  life,  or  great  bodily  harm." 
Cited  2  Bishop  Crira.  Law,  §  707,  5th  ed.  That  case  impresses  us  dif- 
ferently from  what  it  does  the  learned  author,  as  indicated  by  his  remark 
prefacing  the  citation. 

As  developing  and  illustrating  the  prevailing  idea  of  the  law  as  to 
what  will  justify  homicide  se  et  sua  defendendo,  it  is  not  without  inter- 


SECT.  III.]  STATE   V.   PATTERSON.  575 

est  upon  the  point  now  under  consideration,  to  advert  to  what  is  said 
upon  the  general  subject.  In  McNally,  562,  it  is  said  :  "The  injured! 
party  may  repel  force  by  force  in  defence  of  his  person,  habitation,  or\ 
property,  against  one  wlio  manifestly  intendeth  and  endeavoreth  by 
violence  or  surprise  to  commit  a  known  felony  upon  either.  In  these 
cases  he  is  not  obliged  to  retreat,  but  may  pursue  his  adversary  until 
he  findeth  himself  out  of  danger ;  and  if  in  such  conflict  he  happeneth 
to  kill,  such  killing  is  justifiable."  Wharton  incorporates  this  into  his 
work  as  text.  The  same  is  found  in  the  older  books.  1  Hale  P.  C.  485, 
486  ;  also  in  Foster's  Crown  Law,  273  ;  1  Russell,  667  ;  and  in  other 
books,  ad  lib.  But  to  apprehend  this  in  its  true  scope  and  application, 
it  is  important  to  have  in  mind  what  is  said  in  1  Russell,  668:  "The' 
rule  clearly  extends  only  to  cases  of  felony ;  for,  if  one  come  to  beat 
another,  or  take  his  goods  merely  as  a  trespasser,  though  the  owner 
may  justify  the  beating  of  him  so  far  as  to  make  him  desist,  yet  if  he 
kill  him,  it  is  manslaughter.  ...  No  assault,  however  violent,  will  jus- 
tify killing  the  assailant  under  a  plea  of  necessity,  unless  there  be  a 
manifestation  of  felonious  intent."  See  Archb.  Crim.  Law,  221,  cited 
9  C.  &  P.  24. 

This  covers  the  cases  of  statutory  justification  of  homicide,  both  under 
our  own,  and  under  the  English  statutes,  and,  in  principle,  and  in  rea- 
son, it  is  in  keeping  with  the  common  law  as  to  se  defendendo,  in  defining 
the  scope  of  which  in  this  respect,  it  is  well  laid  down  that,  "  before  a 
person  can  avail  himself  of  the  defence  that  he  used  a  weapon  in  defence 
of  his  life,  it  must  appear  that  that  defence  was  necessarj'  to  protect 
his  own  life,  or  to  protect  himself  from  such  serious  bodily  harm  as 
would  give  him  reasonable  apprehension  that  his  life  was  in  immediate 
danger."    1  Russell,  661. 

The  law  of  the  subject,  as  given  in  the  books  thus  cited  and  i-eferred 
to,  seems  to  have  been  adequately  apprehended  by  the  court,  and,  so 
far  as  we  can  judge  from  what  is  shown  by  the  record  before  us,  it  was 
not  administered  erroneously  or  improperly  in  the  trial,  as  against  the 
respondent. 

If  it  were  to  be  assumed  that  the  defence  might  legitimately  claim 
that  there  was  an  assault  on  the  house,  with  the  intent  either  of  takino- 
the  life  of  the  respondent  or  doing  to  him  great  bodily  harm,  the 
respondent  would  be  justified  in  using  a  deadly  weapon,  if  it  should  be 
necessary  in  order  to  prevent  the  perpetration  of  such  crime,  or  if, 
under  the  existing  circumstances  attending  the  emergency,  the  respond- 
ent had  reason  to  believe,  and  was  warranted  in  believing,  and,  in  fact, 
did  believe,  that  it  was  necessary  in  order  to  prevent  the  commission 
of  such  crime.  In  case  the  purpose  of  the  assailant  was  to  take  life, 
or  inflict  great  bodily  harm,  and  the  object  of  his  attack  (if  there  was 
such  attack)  upon  the  house  was  to  get  access  to  the  inmate  occupying 
the  same,  for  such  purpose,  the  same  means  might  lawfully  be  used  to 
prevent  him  from  breaking  in  as  might  be  used  to  prevent  him  from 
making  the  harmful  assault  upon  the  person,  in  case  the  parties  were 


576  COMMONWEALTH  V.   DONAHUE.         [CH\P.  IX. 

met  face  to  face  in  any  other  place.  In  either  case  the  point  of  justi- 
fication is  that  such  use  of  fatal  means  was  necessary  m  order  to  the 
rightful,  effectual  protection  of  the  respondent,  or  his  family,  from  the 
threatened  or  impending  peril.  ^  ,     ,  . 

We  have  been  led  to  this  discussion  and  exposition  of  the  law  as  to 
the  defence  of  the  dwelling-house,  on  account  of  the  somewhat  frag- 
mentary and  disjointed  condition  in  which  it  is  done  up  in  the  books 
and  cases  of  criminal  law,  and  for  the  purpose  of  rendering  as  explicit 
as  we  are  able  the  views  of  this  court  on  that  subject,  as  it  has  been 
brought  into  question  and  debate  in  the  case  in  hand.  In  this  exposi- 
tion,°and  in  the  views  embodied  in  this  opinion,  all  the  members  of  the 

court  concur. 

The  other  subjects  involved  in  grounds  and  points  of  defence,  as 
shown  by  the  bill  of  exceptions,  and  upon  which  the  court  gave  instruc- 
tions to  the  jury,  do  not  seem  to  require  discussion. 

The  verdict  is  set  aside,  and  new  trial  granted. 


COMMONWEALTH  v.  DONAHUE. 
Supreme  Judicial  Court  of  Massachusetts.     1889. 

[Reported  148  Massachusetts,  529.] 
Holmes,  J.  This  is  an  indictment  for  robbery,  on  which  the  defend- 
ant has  been  found  guilty  of  an  assault.  The  evidence  for  the  Com- 
monwealth was,  that  the  defendant  had  bought  clothes,  amounting  to 
twenty-one  dollars  and  fifty-five  cents,  of  one  Mitchelman,  who  called 
at  the^  defendant's  house,  by  appointment,  for  his  pay  ;  that  some  dis- 
cussion arose  about  the  bill,  and  that  the  defendant  went  upstairs, 
brought  down  the  clothes,  placed  them  on  a  chair,  and  put  twenty 
dollars  on  a  table,  and  told  Mitchelman  that  he  could  have  the  money 
or  the  clothes;  that  Mitchelman  took  the  money  and  put  it  in  his 
pocket,  and  told  the  defendant  he  owed  him  one  dollar  and  fifty-five 
cents,  whereupon  the  defendant  demanded  his  money  back,  and  on 
Mitchelman  refusing,  attacked  him,  threw  him  on  the  floor,  and  choked 
him  until  Mitchelman  gave  him  a  pocketbook  containing  twenty-nine 
dollars.  The  defendant's  counsel  denied  the  receiving  of  the  pocket- 
book,  and  said  that  he  could  show  that  the  assault  was  justifiable, 
under  the  circumstances  of  the  case,  as  the  defendant  believed  that 
he  had  a  right  to  recover  his  own  money  by  force  if  necessary.  The 
presiding  justice  stated  that  he  should  be  obliged  to  rule  that  the 
defendant  would  not  be  justified  in  assaulting  Mitchelman  to  get  his 
own  money,  and  that  he  should  rule  as  follows  :  "  If  the  jury  are  satis- 
fied that  the  defendant  choked  and  otherwise  assaulted  Mitchelman, 
they  would  be  warranted  in  finding  the  defendant  guilty,  although  the 
sole  motive  of  the  defendant  was  bv  this  violence  to  get  from  Mitchel- 


SECT.  III.]  COMMONWEALTH   V.   DOXAHUE.  577 

man  by  force  mone}-  which  the  defendant  honestly  believed  to  be  his 
own."  Upon  this  the  defendant  saved  his  exceptions,  and  declined  to 
introduce  evidence  ;  the  jury  were  instructed  as  stated,  and  found  the 
defendant  guilty. 

On  the  evidence  for  the  Commonwealth,  it  appeared,  or  at  the  lowest 
the  jury  might  have  found,  that  the  defendant  ofiered  the  twenty  dollars 
to  Mitchelman  only  on  condition  that  Mitchelman  should  accept  that 
sum  as  full  payment  of  his  disputed  bill,  and  that  Mitchelman  took  the 
mone}-,  and  at  the  same  moment,  or  just  afterwards,  as  part  of  the 
same  transaction,  repudiated  the  condition.  If  this  was  the  case,  — 
since  Mitchelman,  of  course,  whatever  the  sum  due  him,  had  no  right 
to  that  particular  money  except  on  the  conditions  on  which  it  was 
offered  (Commonwealth  v.  Stebbins,  8  Gray,  492),  — he  took  the  money 
wrongfully  from  the  possession  of  the  defendant,  or  the  jury  might 
have  found  that  he  did,  whether  the  true  view  be  that  the  defendant 
did  not  give  up  possession,  or  that  it  was  obtained  from  him  by  Mitchel- 
man's  fraud.  Commonwealth  v.  Devlin,  141  Mass.  423,  431  ;  Chisser's 
Case,  T.  Raym.  275,  276  ;  Regina  v.  Thompson,  Leigh  &  Cave,  225  ; 
Regina  v.  Stanley,  12  Cox  C.  C.  269  ;  Regina  v.  Rodway,  9  C.  &  P. 
784  ;  Rex  v.  Williams,  6  C.  &  P.  390  ;  2  East  P.  C.  o.  16,  ss.  110,  113. 
See  Regina  v.  Cohen,  2  Den.  C.  C.  249,  and  cases  infra.  The  defend- 
ant made  a  demand,  if  that  was  necessary,  which  we  do  not  imply, 
before  using  force.  Green  v.  Goddard,  2  Salk.  641  ;  Polkinhorn  v. 
Wright,  8  Q.  B.  (N.  S.)  197;  Commonwealth  v.  Clark,  2  Met.  23,  25, 
and  cases  infra. 

It  is  settled  b^-  ancient  and  modern  authority  that,  under  such  cir- 
cumstances, a  man  may  defend  or  regain  his  momentarily  interrupted 
possession  by  the  use  of  reasonable  force,  short  of  wounding  or  the 
employment  of  a  dangerous  weapon.  Commonwealth  v.  Lynn,  123 
Mass.  218;  Commonwealth  v.  Kennard,  8  Pick.  133;  Anderson  v. 
State,  6  Baxter,  608;  State  v.  Elliot,  11  N.  H.  540,  545;  Rex  v. 
Milton,  Mood.  &  Malk.  107  ;  Y.  B.  9  Edw.  IV.  28,  pi.  42  ;  19  Hen.  VL 
31,  pi.  59;  21  Hen.VL  27,  pi.  9.  See  Seaman  v.  Cuppledick,  Owen, 
150  ;  Taylor  v.  Markham,  Cro.  Jac.  224  ;  s.  c.  Yelv.  157,  and  1  Brownl. 
215  ;  Shingleton  v.  Smith,  Lutw.  1481,  1483  ;  2  Inst.  316  ;  Finch,  Law, 
203  ;  2  Hawk.  P.  C.  c.  60,  s.  23  ;  3  Bl.  Com.  121.  To  this  extent  the 
right  to  protect  one's  possession  has  been  regarded  as  an  extension  of 
the  right  to  protect  one's  person,  with  which  it  is  generally  mentioned. 
Baldwin  v.  Hayden,  6  Conn.  453  ;  Y.  B.  19  Hen.  VI.  31,  pi."  59  ;  Rogers 
V.  Spence,  13  M.  &  W.  571,  581  ;  2  Hawk.  P.  C.  c.  60,  s.  23  ;  3  Bl 
Com.  120,  131. 

We  need  not  consider  whether  this  explanation  is  quite  adequate. 
There  are  weighty  decisions  which  go  further  than  those  above  cited, 
and  which  hardly  can  stand  on  the  right  of  self-defence,  but  involve 
other  considerations  of  policy.  It  has  been  held  that,  even  where  a 
considerable  time  had  elapsed  between  the  wrongful  taking  of  the 
defendant's  property  and  the  assault,  the  defendant  had  a  right  to 

37 


578 


COMMONWEALTH    V.    DONAHUE.  [CHAP.  IX. 


regain  possession  by  reasonable  force,  after  demand  upon  the  third 
person  in  possession,  in  like  manner  as  he  might  have  protected  it 
without  civil  liability.  Whatever  the  true  rule  may  be,  probably  there 
is  no  ditTerence  in  this  respect  between  the  civil  and  the  criminal  law. 
Blades  V.  Higgs,  10  C.  B.  (N.  S.)  713  ;  12  C  B.  (N.  S.)  501  ;  13  C.  B. 
(N.  S.)  844;  and  U  H.  L.  Cas.  621;  Commonwealth  v.  McCue,  16 
Gray,  226,  227.  The  principle  has  been  extended  to  a  case  where  the 
defendant  had  yielded  possession  to  the  person  assaulted,  through  the 
fraud  of  the  latter.  Hodgeden  v.  Hubbard,  18  Vt.  504.  See  Johnson 
V.  Perry,  56  Vt.  706.  On  the  other  hand,  a  distinction  has  been  taken 
between  the  right  to  maintain  possession  and  the  right  to  regain  it 
from  another  who  is  peaceably  established  in  it,  although  the  possession 
of  the  latter  is  wrongful.  Bobb  v.  Bosworth,  Litt.  Sel.  Cas.  81.  See 
Barnes  v.  Martin,  15  Wis.  240 ;  Andre  v.  Johnson,  6  Blackf.  375; 
Davis  V.  Whitridge,  2  Strobh.  232  ;  3  Bl.  Com.  4.  It  is  unnecessary 
to  decide  whether,  in  this  case,  if  Mitchelman  had  taken  the  money 
with  a  fraudulent  intent,  but  had  not  repudiated  the  condition  until 
afterwards,  the  defendant  would  have  had  any  other  remedy  than  to 
hold  him  to  his  bargain  if  he  could,  even  if  he  knew  that  Mitchelman 
still  had  the  identical  money  upon  his  person. 

If  the  force  used  by  the  defendant  was  excessive,  the  jury  would 
have  been  warranted  in  finding  him  guilt}'.  Whether  it  was  excessive 
or  not  was  a  question  for  them  ;  the  judge  could  not  rule  that  it  was 
not,  as  matter  of  law.  Commonwealth  v.  Clark,  2  Met.  23.  Therefore 
the  instruction  given  to  them,  taken  only  literally,  was  correct.  But 
the  preliminary  statement  went  further,  and  was  erroneous  ;  and  coup- 
ling that  statement  with  the  defendant's  offer  of  proof,  and  his  course 
after  the  rulings,  we  think  it  fair  to  assume  that  the  instruction  was  not 
understood  to  be  limited,  or,  indeed,  to  be  directed  to  the  case  of 
excessive  force,  which,  so  far  as  appears,  had  not  been  mentioned,  but 
that  it  was  intended  and  understood  to  mean  that  any  assault  to  regain 
his  own  money  would  warrant  finding  the  defendant  guilty.  Therefore 
the  exceptions  must  be  sustained. 

It  will  be  seen  that  our  decision  is  irrespective  of  the  defendant's 
belief  as  to  what  he  had  a  right  to  do.  If  the  charge  of  robbery  had 
been  persisted  in,  and  the  difficulties  which  we  have  stated  could  have 
been  got  over,  we  might  have  had  to  consider  cases  like  Regina  v. 
Boden,  1  C.  »fe  K.  395,  397  ;  Regina  v.  Hemmings,  4  F.  «&  F.  50  ; 
State  V.  Hollyway,  41  Iowa,  200.  Compare  Commonwealth  v.  Steb- 
bins,  8  Gray,  492  ;  Commonwealth  v.  McDuffy,  126  Mass.  467.  There 
is  no  question  here  of  the  effect  of  a  reasonable  but  mistaken  belief 
with  regard  to  the  facts.  State  v.  Nash,  88  N.  C.  618.  The  facts  were 
as  the  defendant  believed  them  to  be.  Mcceptions  sustained. 


SECT.  IV.]  KEX   V.   CriUTCHLEY.  579 


SECTION  IV. 

Compulsion. 

REX  V.  CRUTCHLEY. 

Berkshire  Assizes.     1831. 
[Reported  5  Carrington  &  Payne,  1833.] 

Indictment  on  the  stat.  7  &  8  Geo.  4,  c.  30,  s.  4,  for  clestro3-ing  a 
threshing  machine,  the  propert}-  of  a  person  named  Austin.  There 
were  other  counts  for  damaging  it  with  intent  to  destroy  it,  and  for 
damaging  it  with  intent  to  render  it  useless. 

It  appeared  that,  about  ten  o'clock  in  the  night  .of  the  22d  of 
November,  1830,  a  mob  came  to  the  farm  of  Mr.  Austin,  and  broke  his 
threshing  machine  to  pieces.  It  was  proved  that  the  prisoner  was  with 
this  mob,  and  that  he  gave  the  threshing  machine  a  blow  with  a  sledge- 
hammer. 

Mr.  Justice  Patteson  allowed  the  witnesses  for  the  prosecution  to  be 
asked,  in  cross-examination,  whether  many  persons  had  not  been  com- 
pelled to  join  this  mob  against  their  will,  and  whether  the  mob  did  not 
compel  each  person  to  give  one  blow  to  each  threshing  machine  that 
they  broke. 

For  the  defence  William  Davis  was  called.  He  was  the  gamekeeper 
of  Mrs.  Bainbridge,  in  whose  service  the  prisoner  was  an  under-keeper. 
He  stated  that,  being  on  the  watch  at  Mrs.  Bainl)ridge's  preserves,  the 
mob  laid  hold  of  himself  and  the  prisoner,  and  compelled  both  to  go 
with  them  for  the  purpose  of  breaking  threshing  machines. 

Mr.  Justice  Patteson  allowed  the  witness  to  state  that,  before  the 
prisoner  and  himself  had  gone  many  yards  with  the  mob,  they  agreed 
to  run  away  from  the  mob  the  first  opportunity. 

The  wit'iess  stated  that  he  ran  away  from  the  mob  in  about  ten 
minutes,  and  that  the  prisoner  joined  him  in  about  a  quarter  of  an 
hour  after  that  time,  and  that  they  then  returned  to  their  watching  at 
the  preserves. 

Verdict,  JVut  guilty.^ 

1  "With  regard  to  the  argument  you  have  heard,  that  these  prisoners  were  induced 
to  join  Thorn,  and  to  continue  with  him  from  a  fear  of  personal  violence  to  themselves, 
I  aui  bound  to  tell  you,  that  where  parties  for  such  a  reason  are  induced  to  join  a 
mischievous  man,  it  is  not  their  fear  of  violence  to  themselves  which  can  excuse  their 
conduct  to  others.  You  probably,  gentlemen,  never  saw  two  men  tried  at  a  criminal 
bar  for  an  offence  which  they  had  jointly  committed,  where  one  of  them  had  not  been 
to  a  certain  extent  in  fear  of  the  other,  and  liad  not  been  influenced  by  that  fear  in  the 
conduct  he  pursued  ;  yet  that  circumstance  has  never  been  received  by  the  law  as 
an  excuse  for  his  crime,  and  the  law  is,  that  no  man,  from  a  fear  of  consequences  to 
himself,  has  a  right  to  make  himself  a  party  to  committing  mischief  on  mankind." 
Lord  Denman,  C.  J.,  in  Reg.  v.  Tyler,  8  C.  &  P.  616.  —Ed. 


580  AKP  V.   STATE.  [CHAP.  IX. 

RESPUBLICA  V.  McCARTY. 
Supreme  Court  of  Pennsylvania.    1781. 

[Reported  2  Dallas,  86.] 

McKean,  C.  J.^  The  crime  imputed  to  the  defendant  by  the  indict- 
ment is  that  of  levying  war,  by  joining  the  armies  of  the  King  of 
Great  Britain.  Enlisting,  or  procuring  any  person  to  be  enlisted,  in 
the  service  of  the  enemy,  is  clearly  an  act  of  treason.  By  the  defend- 
ant's own  confession  it  appears  that  he  actually  enlisted  in  a  corps 
belonging  to  the  enemy  ;  but  it  also  appears  that  he  had  previously  been 
taken  prisoner  by  them,  and  confined  at  AVilmington.  He  remained, 
however,  with  the  British  troops  for  ten  or  eleven  months,  during  which 
he  might  easily  have  accomplished  his  escape,  and  it  must  be  remem- 
bered that  in  the  eye  of  the  law  nothing  will  excuse  the  act  of  joining 
an  enemy  but  the  fear  of  immediate  death ;  not  the  fear  of  any  infe- 
rior personal  injury,  nor  the  apprehension  of  any  outrage  upon  propert3\ 
But  had  the  defendant  enlisted  merely  from  the  fear  of  famishing,  and 
with  a  sincere  intention  to  make  his  escape,  the  fear  could  not  surely 
always  continue,  nor  could  his  intention  remain  unexecuted  for  so  long 
a  period. 


ARP  V.  STATE. 

Supreme  Court  of  Alabama.     1893. 
[Reported  97  Ala.  5.] 

Coleman,  J. ^  .  .  .  The  court  was  asked  to  give  the  following  charge : 
"  If  the  jury  believe  from  the  evidence  that  the  defendant  killed  Pogue 
under  duress,  under  compulsion  from  a  necessity,  under  threats  of  im- 
mediate impending  peril  to  his  own  life,  such  as  to  take  away  the  free 
agency  of  the  defendant,  then  he  is  not  guilty.'"  The  court  refused  this 
charge,  and  the  refusal  is  assigned  as  error.  This  brings  up  for  con- 
sideration the  question,  what  is  the  law  when  one  person,  under  com- 
pulsion or  fear  of  great  bodily  harm  to  himself,  takes  the  life  of  an 
innocent  person ;  and  what  is  his  duty  when  placed  under  such 
circumstances? 

The  fact  that  defendant  had  been  in  the  employment  of  Burkhalter 
is  no  excuse.     The  command  of  a  superior  to  an  inferior,  of  a  parent 

^  To  the  jury  only  so  much  of  the  charge  is  given  as  deals  with  the  question  of  com- 
pulsion. ■ — Ed. 

-  Only  so  much  of  the  opinion  as  discusses  the  question  of  compulsion  is  given. 
—  Ed. 


SECT.  IV.]  ARP  V.   STATE.  581 

to  a  child,  of  a  master  to  a  servant,  or  of  a  principal  to  his  agent,  will 
not  justify  a  criminal  act  done  in  pursuance  of  such  command.  1  Bishop, 
§  355  ;  Reese  v.  State,  73  Ala.  18  ;  4  Blackstone,  §  27. 

In  a  learned  discussion  of  the  question,  to  be  found  in  Leading  Crim- 
inal Cases,  vol.  i,  p.  81,  and  note  on  p.  85,  by  Bennett  and  Heard,  it  is 
declared  that  "  for  certain  crimes  the  wife  is  responsible,  although  com-  .  JC 

niitted  under  the  compulsion  of  her  husband.  Such  are  murder,"  etc.  ^  ^>-^ 
To  the  same  effect  is  the  text  in  14  Am.  &  Yaw.  FjicvC-  of  Law,  p.  649  ;  h^ 
and  this  court  gave  sanction  to  this  rule  in  Bibb  r.  State,  94  Ala.  31  ; 
10  So.  Rep.  506.  In  Ohio  a  contrary  rule  prevails  in  regard  to  the 
wife.  Davis  v.  State,  15  Ohio,  72  ;  45  Amer.  Dec.  559.  In  Arkansas 
there  is  a  statute  specially  exempting  married  women  from  liability, 
when  "  acting  under  the  threats,  commands,  or  coercion  of  their  hus- 
bands ; "  but  it  was  held  under  this  act  there  was  no  presumption  in 
favor  of  the  wife  accused  of  murder,  and  that  it  was  incumbent  on  her 
to  show  that  the  crime  was  done  under  the  influence  of  such  coercion, 
threats,  or  commands.  Edwards  v.  State,  27  Ark.  493,  reported  in 
1  Criminal  Law,  by  Green,  p.  741. 

In  the  case  of  Beal  v.  The  State  of  Georgia,  72  Ga.  Rep.  200,  and 
also  in  the  case  of  The  People  v.  Miller,  66  Cal.  468,  the  question  arose 
upon  the  sufficiency  of  the  testimony  of  a  witness  to  authorize  a  con- 
viction for  a  felony,  it  being  contended  that  the  witness  was  an  accom- 
plice. In  both  cases  the  witness  was  under  fourteen  years  of  age.  It 
was  held  that  if  the  witness  acted  under  threats  and  compulsion,  he  was 
not  an  accomplice.     The  defendants  were  convicted  in  both  cases. 

In  the  case  of  Rex  v.  Crutchley,  5  C.  &  P.  133,  the  defendant  was 
indicted  for  breaking  a  threshing  machine.  The  defendant  was  allowed 
to  prove  that  he  was  compelled  by  a  mob  to  go  with  them  and  com- 
pelled to  hammer  the  threshing  machine,  and  was  also  permitted  to 
prove  that  he  ran  away  at  the  first  opportunity. 

In  Hawkins'  Pleas  of  the  Crown,  vol.  i,  c.  28,  §  26,  it  is  said  : 
"  The  killing  of  an  innocent  person  in  defence  of  a  man's  self  is  said  to 
be  justifiable  in  some  special  cases,  as  if  two  be  shipwrecked  together, 
and  one  of  them  get  upon  a  plank  to  save  himself,  and  the  other  also, 
having  no  other  means  to  save  his  life,  get  upon  the  same  plank,  and 
finding  it  not  able  to  support  them  both,  thrusts  the  other  from  it, 
whereby  he  is  drowned,  it  seems  that  he  who  thus  preserved  his  own 
life  at  the  expense  of  that  other  may  justify  the  fact  by  the  inevitable 
necessity  of  the  case." 

In  1  Hale's  Pleas  of  the  Crown,  c.  vii,  §  50,  it  is  said:  "There 
is  to  be  observed  a  difference  between  the  times  of  war,  or  public  in- 
surrection or  rebellion,  when  a  person  is  under  so  great  a  power  that 
he  cannot  resist  or  avoid,  the  law  in  some  cases  allows  an  impunity  for 
parties  compelled,  or  drawn  by  fear  of  death,  to  do  some  acts  in  them- 
selves capital,  which  admit  no  excuse  in  time  of  peace.  .  .  .  Now  as 
to  times  of  peace,  if  a  man  be  menaced  witli  death  unless  he  will  com- 
mit an  act  of  treason,  murder,  or  robbery,  the  fear  of  death  doth  not 


5S2  AKP    V.   STATE.  [CHAP.  IX. 

excuse  him  if  he  commit  the  act;  for  the  law  hath  provided  a  sufficient 
remedy  against  such  fears  by  applying  himself  to  the  court  and  officers 
of  justice  for  a  writ  or  precept  dv  securitate  2)acis.  Again,  if  a  man  be 
desperately  assaulted,  and  in  peril  of  death,  and  cannot  otherwise  es- 
cape unless  to  satisfy  his  assailant's  fury  he  will  kill  an  innocent  per- 
son, the  present  fear  of  actual  force  will  not  acquit  him  of  the  crime 
and  punishment  of  murder,  if  he  commit  the  act,  for  he  ought  rather 
to  die  himself  than  kill  an  innocent ;  but  if  he  cannot  otherwise  save 
his  own  life,  th,e  law  permits  him  in  his  own  defence  to  kill  his 
assailant." 

Blackstone,  vol.  4,  §  30,  declares  the  law  to  be,  "  Though  a  man  be 
violently  assaulted,  and  has  not  other  possible  means  of  escaping  death 
but  by  killing  an  innocent  person,  this  fear  and  force  shall  not  acquit 
him  of  murder ;  for  he  ought  rather  to  die  himself  than  escape  by  the 
murder  of  an  innocent." 

In  Stephen's  Commentaries,  vol.  4,  book  6,  c.  2,  pp.  83-84,  the 
same  rule  is  declared  to  be  the  law. 

In  East's  Crown  Law,  the  same  general  principles  are  declared  as  to 
cases  of  treason  and  rebellion,  etc.  But  on  page  294,  after  referring 
to  the  case  of  two  persons  being  shipwrecked  and  getting  on  the  same 
plank,  proceeds  as  follows :  "  Yet,  according  to  Lord  Hale,  a  man  can- 
not even  excuse  the  killing  of  another  who  is  innocent,  under  a  threat, 
however  urgent,  of  losing  his  own  life  unless  he  comply.  But  if  the 
commission  of  treason  ma}-  be  extenuated  bv  the  fear  of  present  death, 
and  while  the  partv  is  under  actual  compulsion,  there  seems  no  reason 
why  this  offence  may  not  be  mitigated  upon  the  like  consideration  of 
human  infirmity.  But  if  the  part}'  might,  as  Lord  Hale  in  one  place 
supposes,  have  recourse  to  the  law  for  his  protection  against  such  threats, 
it  will  certainly  be  no  excuse  for  committing  murder." 

In  Russell  on  Crimes,  vol.  1,  §  699,  it  is  stated  as  follows:  "The 
person  committing  the  crime  must  be  a  free  agent,  and  not  subject  to 
actual  force  at  the  time  the  act  is  done  ;  thus,  if  A  by  force  take  the 
arm  of  B,  in  which  is  a  weapon,  and  therewith  kill  C,  A  is  guilty  of 
murder,  but  not  B.  But  if  it  be  only  a  moral  force  put  upon  B,  as 
by  threatening  him  with  duress  or  imprisonment,  or  even  by  an  assault 
to  the  peril  of  his  life,  in  order  to  compel  him  to  kill  C,  it  is  no  legal 
excuse." 

In  the  case  of  Regina  v.  Tyler,  reported  in  8  Car.  &  Payne,  618, 
Lord  Denman,  C.  J.,  declares  the  law  as  follows:  "With  regard  to 
the  argument  you  have  heard,  that  these  prisoners  were  induced  to 
join  Thom,  and  to  continue  with  him  from  a  fear  of  personal  violence 
to  themselves,  I  am  bound  to  tell  you  that  where  parties  for  such 
reason  are  induced  to  join  a  mischievous  man,  it  is  not  their  fear  of 
violence  to  themselves  which  can  excuse  their  conduct  to  others.  .  .  . 
The  law  is  that  no  man,  from  a  fear  of  consequences  to  himself,  has  a 
right  to  make  himself  a  party  to  committing  mischief  on  mankind." 

In  the  case  of  Respublica  v.  McCarty,  2  Dallas,  86,  when  the  de- 


SECT.  IV.]  ARP   V.    STATE.  /      583 

fendant  ivas  on  trial  for  high  treason,  the  court  uses  this  language  : 
''It  must  be  remembered  that,  in  the  eye  of  the  law,  nothing  will  ex- 
cuse the  act  of  joining  the  enemy  but  the  fear  of  immediate  death  ;  not 
the  fear  of  any  inferior  personal  injury,  nor  the  apprehension  of  any 
outrage  on  property." 

The  same  rule  in  regard  to  persons  charged  with  treason  as  that 
stated  in  Hale's  Pleas  of  the  Crown  is  declared  in  Hawkins,  vol.  1, 
c.  17,  §  28  and  note,  and  both  authors  hold  that  "the  question  of 
the  practicability  of  escape  is  to  be  considered,  and  that  if  the  person 
thus  acting  under  compulsion  continued  in  the  treasonable  acts  longer 
than  was  necessary,  the  defence  ^jyro  timore  mortis'  will  not  be 
available." 

This  principle  finds  further  support  in  the  case  of  U.  S.  v.  Greiner, 
tried  for  treason,  reported  in  4  Phil.  396,  in  the  following  language:.  .       j^v"*^ 

'^The  only  force  which  excuses  on  the  grounds  of  compulsion  is  force  \  (D^^'-^'^  0 
upon  the  person  and  present  fear  of  death,  which  force  and  fear  must  \^^;^i^:^^^^^^^^^^^^ 
continue  during  all  the  time  of  military  service,  and  that  it  is  incum-  *  " 
bent  in  such  a  case  upon  him  who  makes  force  his  defence  to  show  an 
actual  force,  and  that  he  quitted  the  service  as  soon  as  lie  could." 

Wharton's  Criminal  Law,  vol.  1,  §  94,  under  the  head  of  Persons 
under  Compulsion,  says  :  "  Compulsion  may  be  viewed  in  two  aspects  : 
1.  When  the  immediate  agent  is  physically  forced  to  do  the  injury,  as 
wlien  his  hand  is  seized  by  a  person  of  superior  strength,  and  is  used 
against  his  will  to  strike  a  blow,  in  which  case  no  guilt  attaches  to  the 
person  so  coerced.  2.  When  the  force  applied  is  that  of  authority  or 
fear.  Thus,  when  a  person  not  intending  wrong  is  swept  along  by  a 
party  of  persons  whom  he  cannot  resist,  he  is  not  responsible,  if  he  is 
compelled  to  do  wrong  by  threats  on  the  part  of  the  offenders  instantly 
to  kill  him,  or  to  do  him  grievous  bodily  harm  if  he  refuses  ;  but  threats 
of  future  injury,  or  the  command  of  any  one  not  the  husband  of  the 
offender,  do  not  excuse  any  offence.  Thus,  it  is  a  defence  to  an  indict- 
ment for  treason  that  the  defendant  was  acting  in  obedience  to  a  de 
facto  government,  or  to  such  concurring  and  overbearing  sense  of  the 
community  in  which  he  resided  as  to  imperil  his  life  in  case  of  dissent." 
In  section  1803  a,  of  the  same  author  (Wharton),  it  is  said  :  "  No  mat- 
ter what  ma\'  be  the  shape  compulsion  takes,  if  it  affects  the  person 
and  he  yielded  to  it  bona  fide,  it  is  a  legitimate  defence." 

We  have,  examined  the  cases  cited  by  Mr.  Wharton  to  sustain  the 
text,  and  find  them  to  be  cases  of  treason,  or  fear  from  the  party  slain, 
and  in  none  of  them  is  there  a  rule  different  from  that  declared  in  the 
common  law  authorities  cited  by  us. 

Bishop  on  Criminal  Law,  §§  346,  347,  348,  treats  of  the  rules  of  law 
applicable  to  acts  done  under  necessity  and  compulsion.  It  is  here 
declared  :  ''That  always  an  act  done  from  compulsion  and  necessity  is 
Dot  a  crime.  To  this  proposition  the  law  knows  no  exception.  What- 
ever it  is  necessary  for  a  man  to  do  to  save  his  life,  is,  in  general,  to  be 
considered  as  compelled." 


584  ARP   V.   STATE.  [CHAP.  IX. 

The  cases  cited  to  these  propositions  show  the  facts  to  be  different 
from  those  under  consideration.  The  case  referred  in  1  Plow.  19,  was 
where  the  defendant  had  thrown  overboard  a  part  of  his  cargo  of  green 
wood  during  a  severe  tempest  to  save  his  vessel  and  the  remainder 
of  his  cargo.  The  other,  5  Q.  B.  279,  was  for  the  failure  to  keep  up 
a  highwa}',  which  the  encroachments  of  the  sea  had  made  impossible  ; 
and  that  of  Tate  v.  The  State,  5  Black.  73,  was  also  that  of  a  super- 
visor of  a  public  highway',  and  the  others  were  cases  of  treason,  to 
which  reference  has  been  made.  In  section  348,  the  author  cites  the  rule 
laid  down  by  Russell,  and  also  of  Lord  Denman,  and  in  1  East  P.  C,  to 
which  reference  has  already  been  made.  In  section  845,  the  same  author 
uses  the  following  language:  "The  cases  in  wliich  a  man  is  clearly 
justified  in  taking  another's  life  to  save  his  own  are  when  the  other 
has  voluntarily  placed  himself  in  the  wrong.  And  probably,  as  we  have 
seen,  it  is  never  the  right  of  one  to  deprive  an  innocent  third  person  of 
life  for  the  preservation  of  his  own.  There  are,  it  would  seem,  circum- 
stances in  which  one  is  bound  even  to  die  for  another."  Italics  are 
ours,  —  emphasized  to  call  attention  to  the  fact  that  the  author  is  care- 
ful to  content  himself  more  with  a  reference  to  the  authorities  which 
declare  these  principles  of  law  than  an  adoption  of  them  as  his  own. 

The  authorities  seem  to  be  conclusive  that,  at  common  law,  no  man 
can  excuse  himself,  under  the  plea  of  necessit}-  or  compulsion,  for  tak- 
ing the  life  of  an  innocent  person. 

Our  statute  has  divided  murder  into  two  degrees,  and  affixed  the 
punishment  for  each  degree,  but  in  no  respect  has  added  to  or  taken 
away  any  of  the  ingredients  of  murder  as  known  at  common  law. 
Mitchell  V.  State,  60  Ala.  26 ;  Fields  v.  State,  52  Ala.  352. 

That  persons  have  exposed  themselves  to  imminent  peril  and  death 
for  their  fellow  man,  and  that  there  are  instances  where  innocent  per- 
sons have  submitted  to  murderous  assaults  and  death  rather  than  take 
life  is  well  established,  but  such  self-sacrifices  emanated  from  other  mo- 
tives than  the  fear  of  legal  punishment.  That  the  fear  of  punishment 
by  imprisonment  or  death  at  some  future  day  b}'  due  process  of  law 
can  operate  with  greater  force  to  restrain  or  deter  from  its  violation, 
than  the  fear  of  immediate  death  unlaw  full}'  inflicted,  is  hardl}'  recon- 
cilable with  our  knowledge  and  experience  with  that  class  of  mankind 
who  are  controlled  by  no  other  higher  principle  than  fear  of  the  law. 
Be  this  as  it  may,  there  are  other  principles  of  law  undoubtedly  appli- 
cable to  the  facts  of  this  case,  and  which  we  think  cannot  be  ignored. 

The  evidence  of  the  defendant  himself  shows  that  he  went  to  Burk- 
halter's  house  about  nine  o'clock  of  the  night  of  the  killing,  and  there 
met  Burkhalter  and  Leith,  and  that  it  was  there,  and  at  that  time,  the}' 
told  him  he  must  kill  Pogue.  The  evidence  is  not  clear  as  to  how  far 
it  was  from  Burkhalter's  to  Pogue's  dwelling,  where  the  crime  was  per- 
petrated ;  but  it  was  sufficient  to  show  that  there  was  some  considerable 
distance  between  the  places,  and  he  testifies  as  the}-  went  to  Pogue's, 
they  went  by  the  mill  and  got  the  axe  with  which  he  killed  him.    Under 


SECT.  IV.]  UNITED   STATES   V.   JONES.  585 

every  principle  of  law,  it  was  the  duty  of  the  defendant  to  have  escaped 
from  Burkhalter  and  Leith,  after  being  informed  of  their  intention  to 
compel  him  to  take  the  Ufe  of  Pogue,  as  much  so  as  it  is  tlie  duty  of 
one  who  had  been  compelled  to  take  up  arms  against  his  own  govern- 
ment, if  he  can  do  so  with  reasonable  safety  to  himself;  or  of  one  as- 
sailed, to  retreat  before  taking  the  life  of  his  assailant.     Although  it 
may  have  been  true  that  at  the  time  he  struck  the  fatal  blow  he  had 
reason  to  believe   he  would   be   killed  by  Burkhalter  and  Leith  un- 
less he  killed  Pogue,  yet,  if  he  had  the  opportunity,  if  it  was  practi- 
cable, after  being  informed  at  Burkhalter's  house  of  their  intention,  he 
could  have  made  his  escape  from  them  with  reasonable  safety,  and  he 
failed  to  do  so,  but  remained  with  them  until  the  time  of  the  killing, 
the  immediate  necessity  or  compulsion  under  which  he  acted  at  that 
time  would  be  no  excuse  to  him.     As  to  whether  escape  was  practi- 
cable to  defendant,  as  we  have  stated,  was  a  question  of  fact  for  the 
jury.     The  charge,  numbered  1  and  refused  by  the  court,  ignored  this 
principle  of  law  and  phase  of  evidence,  and  demanded  an  acquittal  of 
defendant  if  at  the  time  of  the  killing  the  compulsion  and  coercion 
operated  upon  the  defendant,  and  forced  him  to  the  commission  of  the 
act,  notwithstanding  he  might  have  avoided  the  necessity  by  escape 
before  that  time.     We  do  not  hesitate  to  say  he  would  have  been  justi- 
fiable in  taking  the  life  of  Burkhalter  and  Leith,  if  there  had  been  no 
other  way  open  to  enable  him  to  avoid  the  necessity  of  taking  the  life 
of  an  innocent  man.     The  charge  requested  was  erroneous  and  mis- 
leadino-,  in  the  respect  that  it  ignored  the  law  and  evidence  in  these 
respects.  Affirmed 


"^  i  4- 


UNITED   STATES   v.   JONES. 
U.  S.  Circuit  Court,  Dist.  Pennsylvania.     1813. 

[Reported  3  Washington,  C.  C.  209.] 

The  prisoner  was  indicted  for  feloniously  and  piratically  entering  a 
certain  Portuguese  brig  (by  name),  and  assaulting  the  captain,  &c.  It 
appeared  in  evidence,  on  the  part  of  the  prosecution,  that  the  defendant 
was  the  first  lieutenant  of  a  privateer  schooner,  called  the  "  Revenge," 
William  Butler  master,  duly  commissioned  by  the  President  of  the 
United  States,  on  the  12th  of  October,  1812.  The  points  of  law  raised 
by  the  counsel  for  the  prisoner  were  five.  The  prisoner  was  an  inferior 
officer,  and  was  bound  to  obey  the  orders  of  Captain  Butler ;  of  course, 
he  cannot  be  punished  for  having  done  so.^ 

1  Ouly  so  much  of  the  case  as  iuvolves  this  point  is  given. 


586  EXTREME   BENEFIT.  [CHAP.   IX. 

Washington,  Justice,  charged  the  jury.  The  only  remaining  qnes- 
ticn  of  law  which  has  been  raised  in  this  cause  is,  that  the  prisoner 
ought  to  be  presumed  to  have  acted  under  the  orders  of  his  superior 
officer,  which  it  was  his  dutj'  to  obey.  This  doctrine,  equally  alarming 
and  unfounded,  underwent  an  examination  and  was  decided  by  this 
court  in  the  case  of  General  Bright.  It  is  repugnant  to  reason,  and 
to  the  positive  law  of  the  land.  No  militarv  or  civil  officer  can  com- 
mand an  inferioi*  to  violate  the  laws  of  his  country  ;  nor  will  such  a 
command  excuse,  much  less  justify,  the  act.  Can  it  be  for  a  moment 
pretended  that  the  general  of  an  army,  or  the  commander  of  a  ship  of 
war,  can  order  one  of  his  men  to  commit  murder  or  felony?  Certainly 
not.  In  relation  to  the  navy,  let  it  be  remarked,  that  the  fourteenth 
section  of  the  law  for  the  better  government  of  that  part  of  the  public 
force,  which  enjoins  on  inferior  officers  or  privates  the  duty  of  obe- 
dience to  their  superior,  cautiously  speaks  of  the  laioful  orders  of  that 
superior. 

Disobedience  of  an  unlawful  order  must  not,  of  course,  be  punish- 
able ;  and  a  court-martial  would,  in  such  a  case,  be  bound  to  acquit  the 
person  tried  upon  a  charge  of  disobedience.  We  do  not  mean  to  go 
further  than  to  say,  that  the  participation  of  the  inferior  officer  in  an 
act  which  he  knows,  or  ought  to  know,  to  be  illegal,  will  not  be  excused 
by  the  order  of  his  superior.^ 


SECTION  V. 

Extreme  Benefit. 

Bacon,  Maxims,  reg.  5.  If  a  man  steal  viands  to  satisfy  his  present 
hunger,  this  is  no  felony  nor  larceny.  So  if  divers  be  in  danger  of 
drowning  by  the  casting  away  of  some  boat  or  bark,  and  one  of'' them 
get  to  some  plank,  or  on  the  boat  side  to  keep  himself  above  water, 
and  another  to  save  his  life  thrust  him  from  it,  whereby  he  is  drowned^ 
this  is  neither  se  defenclendo  nor  by  misadventure,  but  justifiable.  So 
if  divers  felons  be  in  a  gaol,  and  the  gaol  by  casualty  is  set  on  fire, 
whereby  the  prisoners  get  forth,  this  is  no  escape,  nor  breaking  of 
prison.  So  upon  the  statute  that  every  merchant  that  setteth^his 
mercliandise  on  land  without  satisfying  the  customer  or  agreeing  for 
it  (which  agreement  is  construed  to  be  in  certainty),  shalfforfei't  his 
merchandise ;  and  it  is  so  that  by  tempest  a  great  quantity  of  the 
merchandise  is  cast  overboard,  whereby  the  merchant  agrees  with 
the  customer  by  estimation,  which  falleth  out  short  of  the  "truth  ;  yet 
the  over  quantity  is  not  forfeited,  by  reason  of  the  necessity ;  where 
note  that  necessity  dispenseth  with  the  direct  letter  of  a  statute  law. 

^  Ace.  Rex  V.  Thomas,  1  Russ.  Crimes,  731  ;  U.  S.  v.  Carr,  1  Woods,  480:  Com.  v. 
BloJgett,  12  Met.  56.  —  Ed. 


SECT,  v.]  REGINA    V.    DUDLEY.  587 

3  »  ?f  ■ 

REGINA  V.   DUDLEY. 
Queen's  Bench  Division.     1884. 

[Reported  15  Cox  C.  C.  624,  U  Q.  B.  D.  273.] 

Lord  Coleridge,  C.  J.'  The  two  prisoners,  Thomas  Dudley  and 
Edwin  Stephens,  were  indicted  for  the  murder  of  Richard  Parker  on 
the  high  seas  on  the  25th  day  of  July  in  the  present  year.  They  were 
tried  "before  my  brother  Huddleston  at  Exeter  on  the  6th  day  of 
November,  and  under  the  direction  of  my  learned  brother,  the  jury 
returned  a  special  verdict,  the  legal  effect  of  which  has  been  argued 
before  us,  and  on  which  we  are  now  to  pronounce  judgment.  The 
special  verdict  is  as  follows.  \_The  learned  judge  read  the  special 
verdict.^  From  these  facts,  stated  with  the  cold  precision  of  a  special 
verdict,  it  appears  sufficiently  that  the  prisoners  were  subject  to  ter- 
rible temptation  and  to  sufferings  which  might  break  down  the  bodily 
power  of  the  strongest  man  and  try  the  conscience  of  the  best.  Other 
details  yet  more  harrowing,  fVicts  still  more  loathsome  and  appalling, 
were  presented  to  the  jury,  and  are  to  be  found  recorded  in  my  learned 
brother's  notes;  but  nevertheless  this  is  clear,  —  that  the  prisoners 
put  to  death  a  weak  and  unoffending  boy  upon  the  chance  of  preserv- 
ing their  own  lives  by  feeding  upon  his  flesh  and  blood  after  he  was 
killed,  and  with  a  certainty  of  depriving  him  of  any  possible  chance 
of  survival.  The  verdict  finds  in  terms  that  "  if  the  men  had  not  fed 
upon  the  body  of  the  boy,  they  would  probably  not  have  survived," 
and  that  "  the  boy,  being  in  a  much  weaker  condition,  was  likely  to 
have  died  before  them."  They  might  possi])ly  have  been  picked  np 
next  day  by  a  passing  ship  ;  they  might  possibly  not  have  been  picked 
up  at  all ;  in  either  case  it  is  obvious  that  the  killing  of  the  boy  would 
have  been  an  unnecessary  and  profitless  act.  It  is  found  by  the  ver- 
dict that  the  boy  was  incapable  of  resistance,  and,  in  fact,  made  none  ; 
and  it  is  not  even  suggested  that  his  death  was  due  to  any  violence  on 
his  part  attempted  against,  or  even  so  much  as  feared  by,  them  who 
killed  him.  Under  these  circumstances  the  jury  say  they  are  ignorant 
whether  those  who  killed  him  were  guilty  of  murder,  and  have  referred 
it  to  this  court  to  say  what  is  the  legal  consequence  which  follows 
from  the  facts  which  they  have  found.  There  remains  to  be  consid- 
ered the  real  question  in  the  case,  whether  killing,  under  the  circum- 
stances set  forth  in  the  verdict,  be  or  be  not  murder.  The  contention 
that  it  could  be  anything  else  was  to  the  minds  of  us  all  both  new  and 
strange ;  and  we  stopped  the  Attorney-General  in  his  negative  argu- 
ment that  we  might  hear  what  could  be  said  in  support  of  a  proposi- 
tion which  appeared  to  us  to  be  at  once  dangerous,  immoral,  and 
opposed   to  all  legal  principle  and  analogy.     All,  no  doubt,  that  can 

1  Part  of  the  opinion  only  is  given. 


58S  KEGINA   V.    DUDLEY.  [CHAP.  IX. 

be  said  has  been  urged  before  us,  and  we  are  now  to  consider  and 
determine  what  it  amounts  to.  First,  it  is  said  that  it  follows,  from 
various  definitions  of  murder  in  books  of  authority  —  which  definitions 
impl}',  if  the}'  do  not  state,  the  doctrine  —  that,  in  order  to  save  your 
own  life  you  may  lawfully  take  awa\-  tiie  life  of  another,  when  that 
other  is  neither  attempting  nor  threatening  yours,  nor  is  guilty  of  any 
illegal  act  whatever  towards  you  or  any  one  else.  But  if  these  defini- 
tions be  looked  at,  they  will  not  be  found  to  sustain  the  contention. 
The  earliest  in  point  of  date  is  the  passage  cited  to  us  from  Bracton, 
who  wrote  in  the  reign  of  Henry  III.  It  was  at  one  time  the  fashion 
to  discredit  Bracton,  as  Mr.  Reeves  tells  us,  because  he  was  supposed 
to  mingle  too  much  of  the  canonist  and  civilian  with  the  common 
lawyer.  There  is  now  no  such  feeling ;  but  the  passage  upon  homi- 
cide, on  which  reliance  is  placed,  is  a  remarkable  example  of  the  kind 
of  writing  which  may  explain  it.  Sin  and  crime  are  spoken  of  as 
apparently  equally  illegal ;  and  the  crime  of  murder,  it  is  expressly 
declared,  may  be  committed  Ihigua  vel  facto ;  so  that  a  man  like 
Hero,  "  done  to  death  by  slanderous  tongues,"  would,  it  seems,  in  the 
opinion  of  Bracton,  be  a  person  in  respect  of  whom  might  be  grounded 
a  legal  indictment  for  murder.  But  in  the  ver}-  passage  as  to  necessity 
on  which  reliance  has  been  placed,  it  is  clear  that  Bracton  is  speaking 
of  necessity  in  the  ordinary  sense,  —  the  repelling  b}-  violence,  vio- 
lence justified  so  far  as  it  was  necessary  for  the  object,  any  illegal 
violence  used  towards  one's  self.  If,  says  Bracton  (Lib.  iii.  Art.  De 
Corona,  cap.  4,  fol.  120),  the  necessity  be  evitahiUs  et  ecadere  posset 
absque  occisione,  tunc  erit  reus  homicidii,  —  words  which  show  clearlj' 
that  he  is  thinking  of  physical  danger,  from  which  escape  maj-  be  pos- 
sible, and  that  inevitabilis  necessitas,  of  which  he  speaks  as  justifying 
homicide,  is  a  necessity  of  the  same  nature.  It  is,  if  possible,  yet 
clearer  that  the  doctrine  contended  for  receives  no  support  from  the 
great  authority  of  Lord  Hale.  It  is  plain  that  in  his  view  the  necessity 
which  justifies  homicide  is  that  only  which  has  always  been,  and  is 
now,  considered  a  justification.  "  In  all  these,  cases  of  homicide  b^' 
necessity,"  says  he,  "as  in  pursuit  of  a  felon,  in  killing  him  that 
assaults  to  rob,  or  comes  to  burn  or  break  a  house,  or  the  like,  which 
are  in  themselves  no  felony"  (1  Hale  P.  C.  491).  Again,  he  says 
that  the  necessity  which  justifies  homicide  is  of  two  kinds  :  "  (1)  That 
necessity  which  is  of  a  private  nature ;  (2)  That  necessity  which  re- 
lates to  the  public  justice  and  safety.  The  former  is  that  necessitv 
which  obligeth  a  man  to  his  own  defence  and  safeguard  ;  and  this 
takes  in  these  inquiries  :  (1)  What  may  be  done  for  the  safeguard  of  a 
man's  own  life,"  —  and  then  follow  three  other  heads  not  necessary  to 
pursue.  Then  Lord  Hale  proceeds:  "(1)  As  touching  the  first  of 
these,  namely,  homicide  in  defence  of  a  man's  own  life,  which  is  usually 
styled  se  defendendo  "  (1  Hale  P.  C.  478).  It  is  not  possible  to  use 
words  more  clear  to  show  that  Lord  Hale  regarded  the  private  neces- 
sity which  justified,  and  alone  justified,  the  taking  the  life  of  another 


SECT,  v.]  EEGINA   V.   DUDLEY.  '  589 

for  the  safeguard  of  one's  own  to  be  what  is  commonly  called  self- 
defence.  But  if  this  could  be  even  doubtful  upon  Loi-d  Hale's  words, 
Lord  Hale  himself  has  made  it  clear  ;  for  in  the  chapter  in  which  he 
deals  with  the  exemption  created  b}'  compulsion  or  necessity,  he  thus 
expresses  himself:  "  If  a  man  be  desperately  assaulted  and  in  peril  of 
death  and  cannot  otherwise  escape,  unless  to  satisfy  his  assailant's 
fury  he  will  kill  an  innocent  person  then  present,  the  fear  and  actual 
force  will  not  acquit  him  of  the  crime  and  punishment  of  murder  if  he 
commit  tlie  fact,  for  he  ought  rather  to  die  liimself  than  to  kill  an 
innocent ;  but  if  he  cannot  otherwise  save  his  own  life,  the  law  permits 
him  in  his  own  defence  to  kill  the  assailant,  for,  by  the  violence  of  the 
assault  and  the  offence  committed  upon  him  by  the  assailant  himself, 
the  law  of  nature  and  necessity  hath  made  liim  his  own  jt?ro<ec<or  cum 
dehito  moderamine  inculpatce  tutelce  (1  Hale  P.  C.  51).  But,  further 
still :  Lord  Hale  in  the  following  chapter  deals  with  the  position  as- 
serted by  the  casuists  and  sanctioned,  as  he  sa^'s,  b}-  Grotius  and  Puf- 
fendorf,  that  in  a  case  of  extreme  necessity,  either  of  hunger  or  cloth- 
ing, "  theft  is  no  theft,  or  at  least  not  punishable  as  theft;  and  some 
even  of  our  own  lawyers  have  asserted  the  same  ;  "  ''  but,"  says  Lord 
Hale,  "I  take  it  that  here  in  England  that  rule,  at  least  b}-  the  laws 
of  England,  is  false  ;  and  therefore  if  a  person,  being  under  necessity 
for  want  of  victuals  or  clothes,  shall  upon  that  account  clandestinely 
and  animo  furandi  steal  another  man's  goods,  it  is  a  felony  and  a 
crime  b^'  the  laws  of  England  punisliable  with  death"  (1  Hale  P.  C. 
54).  If  therefore  Lord  Hale  is  cleai',  as  he  is,  that  extreme  necessity 
of  hunger  does  not  justify'  larceny,  what  would  he  have  said  to  the 
doctrine  that  it  justified  murder?  It  is  satisfactory  to  find  that  an- 
otlier  great  authority,  second  probablj-  only  to  Lord  Hale,  speaks  with 
the  same  unhesitating  clearness  on  this  matter.  Sir  Michael  Foster,  in 
the  third  chapter  of  his  "Discourse  on  Homicide,"  deals  with  the  sub- 
ject of  Homicide  Founded  in  Necessity' ;  and  the  whole  chapter  im- 
plies, and  is  insensible  unless  it  does  imply,  that  in  the  view  of  Sir 
Michael  Foster,  necessity  and  self-defence  (which  in  section  1  he 
defines  as  "opposing  force  to  force  even  to  the  death")  are  con- 
vertible terms.  There  is  no  hint,  no  trace  of  the  doctrine  now  con- 
tended for ;  the  whole  reasoning  of  the  chapter  is  entireh-  inconsistent 
with  it. 

In  East  (1  East  P.  C.  271),  the  whole  chapter  on  Homicide  by  Ne- 
cessity is  taken  up  with  an  elaborate  discussion  of  the  limits  within 
which  necessity  —  in  Sir  Michael  Foster's  sense  (given  above)  —  of 
self-defence  is  a  justification  of  or  excuse  for  homicide.  There  is  a 
short  section  at  the  end  (p.  294)  xevy  generally  and  very  doubtfully 
expressed,  in  which  the  onh'  instance  discussed  is  the  well-known  one 
of  two  shipwrecked  men  on  a  plank  able  to  sustain  onl}'  one  of  them  ; 
and  the  conclusion  is  left  by  Sir  Edward  East  entirely  undetermined. 
What  is  true  of  Sir  Edward  P^ast  is  true  also  of  Mr.  Serjeant  Haw- 
kins.    The  whole  of  his  chapter  on  Justifiable  Homicide  assumes  that 


590  EEGINA  V.   DUDLEY.  [CHAP.   IX. 

the  only  justifiable  homicide  of  a  private  nature  is  in  defence  against 
force  of  a  man's  person,  house,  or  goods.  In  the  26th  section  we  find 
again  the  case  of  the  two  shipwrecked  men  and  the  single  plank,  with 
this  significant  expression  from  a  careful  writer :  "  It  is  said  to  be  jus- 
tifiable." So,  too,  Dalton,  c.  150,  clearly  considers  necessit}'  and 
self-defence,  in  Sir  Michael  Foster's  sense  of  that  expression,  to  be 
convertible  terms,  —  though  he  prints  without  comment  Lord  Bacon's 
instance  of  the  two  men  on  one  plank  as  a  quotation  from  Lord  Bacon, 
adding  nothing  whatever  to  it  of  his  own ;  and  there  is  a  remarkable 
j>assage  at  page  339,  in  which  he  says  that  even  in  the  case  of  a  mur- 
derous assault  upon  a  man,  yet  before  he  ma}*  take  the  life  of  the  man 
who  assaults  him,  even  in  self-defence,  cuncta  prms  tentanda.  Tiie 
passage  in  Staundforde,  on  which  almost  the  whole  of  the  dicta  we 
have  been  considering  are  built,  when  it  comes  to  be  examined,  does 
not  warrant  the  conclusion  which  has  been  derived  from  it.  The 
necessit}'  to  justify"  homicide  must  be,  he  saj's,  inevitable ;  and  the 
example  which  he  gives  to  illustrate  his  meaning  is  the  verj'  same 
which  has  just  been  cited  from  Dalton,  showing  that  the  necessity  he 
was  speaking  of  was  a  phj'sical  necessity-  and  the  self-defence  a  defence 
against  physical  violence.  Russell  merelv  repeats  the  language  of  the 
old  text-books  and  adds  no  new  authority  nor  any  fresh  considerations. 
Is  there,  then,  an}-  authorit}'  for  the  proposition  which  has  been  pre- 
sented to  us  ?  Decided  cases  there  are  none.  The  case  of  the  seven 
English  sailors  referred  to  b}'  the  commentator  on  Grotius  and  by 
Puffendorf  has  been  discovered  b\-  a  gentleman  of  the  Bar  —  who 
communicated  with  my  brother  Huddlcston  —  to  conve}'  the  authorit}', 
if  it  conveys  so  much,  of  a  single  judge  of  the  island  of  St.  Kitts, 
when  that  island  was  possessed  partly  b}'  France  and  partlj-  by  this 
country,  somewhere  about  the  ^-ear  1G41,  It  is  mentioned  in  a  medical 
treatise  published  at  Amsterdam,  and  is  altogether,  as  authority  in  an 
Euglisli  court,  as  unsatisfactor}-  as  possible.  The  American  case 
cited  by  my  brother  Stephen  in  his  digest  from  Wharton  on  Homicide, 
page  237,  in  which  it  was  decided,  correctly,  indeed,  that  sailors  had 
no  right  to  throw  passengers  overboard  to  save  themselves,  but  on  the 
somewhat  strange  ground  that  the  proper  mode  of  determining  who 
was  to  be  sacrificed  was  to  vote  upon  the  subject  by  ballot,  can 
hardly,  as  my  brother  Stephen  says,  be  an  authority  satisfactory  to  a 
Court  in  this  country.^     The  observations  of  Lord  Mansfield  in  the 

^  "The  case  does  not  become  'a  case  of  necessity'  unless  all  ordinary  means  of  self- 
preservation  have  been  exhausted.  The  peril  must  be  instant,  overwhelming;  leaving 
no  alternative  but  to  lose  our  own  life,  or  to  take  the  life  of  another  person.  .  .  .  For 
example :  suppose  that  two  persons  who  owe  no  duty  to  one  another  that  is  not  mutual 
should,  by  accident  not  attributable  to  either,  be  ydaced  in  a  situation  where  both 
cannot  survive.  Neither  is  bound  to  save  the  other's  life  by  sacrificing  his  own  ;  nor 
would  either  commit  a  crime  in  saving  his  own  life  in  a  struggle  for  the  only  means 
of  safety.  But  in  applying  this  law,  we  must  look  not  only  to  the  jeopardy  in  which 
the  parties  are,  but  also  to  the  relations  in  which  they  stand.  The  slayer  must  be 
under  no  obligation  to  make  his  own  safety  secondary  to  the  safety  of  others.  .  .  . 


SECT,  v.]  EEGINA   V.   DUDLEY.  591 

case  of  Rex  v.  Stratton  and  others  (21  St.  Tr.  1045),  striking  and 
excellent  as  they  are,  were  delivered   in  a  political  trial,  where  the 
question  was  whether  a  political  necessity  had  arisen  for  deposing  a 
governor   of  Madras.     But   they   have  little  application  to  the  case 
before  us,  which  must  be  decided    on  very  different  considerations.^ 
The  one  real  authority  of  former  times  is  Lord  Bacon,  who  in  his  com- 
mentary on  the  maxim,  Necessitas  inducit  privilegium  quoad  jura 
pricata,  lays  down  the  law  as  follows:  "Necessity  carrieth  a  privi- 
lege in  itself.     Necessity  is  of  three  sorts,  —  necessity  of  conservation 
of  life,  necessity  of  obedience,  and  necessity  of  the  act  of  God  or  of  a 
stranger.     First,  of  conservation  of  life.     If  a  man   steals  viands  to 
satisfy  his  present  hunger,  this  is  no  felony  nor  larceny.     So  if  divers 
be  in  danger  of  drowning  by  the  casting  away  of  some  boat  or  barge, 
and  one  of  them  get  to  some  plank,  or  on  the  boat's  side,  to  keep  him- 
self above    water,  and  another  to  save  his  life  thrust  him  from  it, 
whereby  he  is  drowned,  this  is  neither  se  defendendo  nor  by  misad- 
venture,   but  justifiable."     On  this  it  is  to  be   observed   that   Lord 
Bacon's  proposition  that  stealing  to  satisfy   hunger  is  no  larceny  is 
hardly  supported  by  Staundforde,  whom  he  cites  for  it,  and  is  ex- 
pressly contradicted  by  Lord  Hale  in  the  passage  already  cited.     And 
for  the  proposition  as  to  the  plank  or  boat,  it  is  said  to  be  derived 
from  the  canonists ;  at  any  rate  he  cites  no  authority  for  it,  and  it 
must  stand  upon  his  own.     Lord  Bacon  was  great  even  as  a  lawyer ; 
but  it  is  permissible  to  much  smaller  men,  relying  upon  principle  and 
on  the  authority  of  others  the  equals  and  even  the  superiors  of  Lord 
Bacon  as  lawyers,  to  question  the  soundness  of  his  dictum.     There 

The  passenger  stands  in  a  position  different  from  tlmt  of  the  officers  and  seamen  ;  it ' 
is  the  sailor  who  must  encounter  the  hardships  and  perils  of  the  voyage.  .  .  .  The  j 
captain,  indeed,  and  a  sufficient  number  of  seamen  to  navigate   the  boat,  must  be 
preserved.  .  .  .  This  rule  may  be  deemed  a  harsh  one  towards  the  sailor,  who  may 
thus  far  have  done  his  duty;  but  when  the  danger  is  so  extreme  that  the  only  hope  is 
in  sacrificing  either  a  sailor  or  a  passenger,  any  alternative  is  hard  ;  and  would  it  not 
be  the  hardest  of  any,  to  sacrifice  a  passenger  in  order  to  save  a  supernumerary  sailor  ? 
.  .  .  When  the  ship  is  in  no  danger  of  sinking,  but  all  sustenance  is  exhausted,  and 
a  sacrifice  of  one  person  is  necessary  to  appease  the  hunger  of  others,  the  selection  is  | 
by  lot.     This  mode  is  resorted  to  as  the  fairest  mode  ;  and,  in  some  sort,  as  an  appeal  \ 
to  God  for  the  selection  of  the  victim."  —  Baldwin,  J.  (to  the  jury)  in  United  States 
V.  Holmes,  1  Wall.  Jun.  1,  22. 

1  "  W^herever  necessity  forces  a  man  to  do  an  illegal  act,  forces  him  to  do  it,  it  justi-  ^ 
fies  him,  because  no  man  can  be  guilty  of  a  crime  without  the  will  and  intention  of  his 
mind.  It  must  be  voluntary ;  therefore  a  madman  cannot  commit  a  crime.  A  man 
who  is  absolutely  by  natural  necessity  forced,  his  will  does  not  go  along  with  the  act  ; 
and  therefore  in  the  case  of  natural  necessity  (and,  by  the  by,  whenever  a  question 
turns  upon  natural  necessity  it  is  a  question  to  be  determined  by  a  jury,  and  by  a 
jury  only  ;  it  is  a  question  upon  fact  and  the  degree  of  fact)  if  a  man  is  forced  to  com- 
mit acts  of  high  treason,  if  it  appears  really  force,  and  such  as  human  nature  could 
not  be  expected  to  resist,  and  the  jury  are  of  that  opinion,  the  man  is  not  then  guilty 
of  high  treason.  In  a  case  of  homicide,  if  a  man  was  attacked,  and  in  danger,  and 
so  on  in  a  variety  of  instances,  natural  necessity  certainly  justifies." —  Lord  JIaxs- 
FIELD  (to  the  jury)  in  Kex  v.  Stratton,  21  How.  St.  Tr.  1045,  1223. 


)92 


KEGINA   V.   DUDLEY.  [CHAP.  IX. 


are  many  conceivable  states  of  things  in  which  it  might  possibly  be 
true  ;  but  if  Lord  Bacon  meant  to  lay  down  the  broad  proposition  that 
a  man  may  save  his  life  by  killing,  if  necessary,  an  innocent  and  un- 
offending neighbor,  it  certainly  is  not  law  at  the  present  day.  There 
remains  the  authority  of  my  brother  Stephen,  who  both  in  his  Digest 
(Art.  32)  and  in  his  "History  of  the  Criminal  Law"  (vol.  ii.  p.  108), 
uses  language  perhaps  wide  enough  to  cover  this  case.  The  language 
is  somewhat  vague  in  both  places,  but  it  does  not  in  either  place  cover 
this  case  of  necessity,  and  we  have  the  best  authority  for  saying  that 
it  was  not  meant  to  cover  it.  If  it  had  been  necessary,  we  must  with 
true  deference  have  differed  from  him  ;  but  it  is  satisfactory  to  know 
that  we  have,  probably  at  least,  arrived  at  no  conclusion  in  which,  if 
he  had  been  a  member  of  the  court,  he  would  have  been  unable  to 
agree.  Neither  are  we  in  conflict  with  any  opinion  expressed  upon  this 
subject  by  the  learned  persons  who  formed  the  Commission  for  prepar- 
ing the  Criminal  Code.  They  say  on  this  subject:  "  We  are  not  pre-, 
pared  to  suggest  that  necessity  should  in  ever}-  case  be  a  justification  ; 
we  are  equally  unprepared  to  suggest  that  necessity  should  in  no  case 
be  a  defence.  We  judge  it  better  to  leave  such  questions  to  be  dealt  with 
when,  if  ever,  they  arise  in  practice,  by  applying  the  principles  of  law  to 
the  circumstances  of  the  particular  case."  It  would  have  been  satisfac- 
tory to  us  if  these  eminent  persons  could  have  told  us  whether  the 
received  definitions  of  legal  necessit}'  were  in  their  judgment  correct 
and  exhaustive,  and,  if  not,  in  what  way  they  should  be  amended ; 
but  as  it  is  we  have,  as  the}'  sa}',  "  to  apply  the  principles  of  law  to 
the  circumstances  of  this  particular  case."  Now,  except  for  the  pur- 
pose of  testing  how  far  the  conservation  of  a  man's  own  life  is  in  all 
cases  and  under  all  circumstances  an  absolute,  unqualified,  and  pra-a- 
mount  dut}',  we  exclude  from  our  consideration  all  the  incidents  of 
war.  We  are  dealing  with  a  case  of  private  homicide,  not  one  im- 
posed upon  men  in  the  service  of  their  sovereign  or  in  the  defence  of 
their  country.  Now  it  is  admitted  that  the  deliberate  killing  of  this 
unoffending  and  unresisting  bo}-  was  clearly  murder,  unless  the  killing 
can  be  justified  b}-  some  well-recognized  excuse  admitted  by  the  law. 
It  is  further  admitted  that  there  was  in  this  case  no  such  excuse,  un- 
less the  killing  was  justified  by  what  has  been  called  necessit}'.  But 
the  temptation  to  the  act  which  existed  here  was  not  what  the  law  has 
ever  called  necessity.  Nor  is  this  to  be  i-egretted.  Though  law  and 
morality  are  not  the  same,  and  though  man}'  things  may  be  immoral 
which  are  not  necessarily  illegal,  yet  the  absolute  divorce  of  law  from 
morality  would  be  of  fatal  consequence,  and  such  divorce  would  follow 
if  the  temptation  to  murder  in  this  case  were  to  be  held  by  law  an 
absolute  defence  of  it.  It  is  not  so.  To  preserve  one's  life  is,  gener- 
ally speaking,  a  duty ;  but  it  may  be  the  plainest  and  the  highest  duty 
to  sacrifice  it.  War  is  full  of  instances  in  which  it  is  a  man's  duty  not 
to  live,  but  to  die.  The  duty,  in  case  of  shipwreck,  of  a  captain  to 
his  crew,  of  the  crew  to   the  passengers,  of  soldiers  to  women  and 


SECT,  v.]  EEGINA    V.    DUDLEY.  593 

children,  as  in  the  noble  case  of  the  "Birkenhead," — these  duties 
impose  on  men  the  moral  necessity-,  not  of  the  preservation,  but  of  the 
sacrifice,  of  their  lives  for  others,  from  which  in  no  countr}'  —  least  of 
all,  it  is  to  be  hoped,  in  England  —  will  men  ever  shrink,  as  indeed 
they  have  not  shrunk.  It  is  not  correct,  therefore,  to  sa}-  that  there 
is  any  absolute  and  unqualified  necessity  to  preserve  one's  life.  "JVeccs- 
se  est  ut  earn,  non  ut  vivam,^'  is  a  saying  of  a  Roman  officer  quoted 
by  Lord  Bacon  himself  with  high  eulogy  in  the  very  chapter  on  Ne- 
cessity to  which  so  much  reference  has  been  made.  It  would  be  a 
very  easy  and  cheap  display  of  commonplace  learning  to  quote  from 
Greek  and  Latin  authors, — from  Horace,  from  Juvenal,  from  Cicero, 
from  Euripides,  —  passage  after  passage  in  which  the  duty  of  dying 
for  others  has  been  laid  down  in  glowing  and  emphatic  language  as 
resulting  from  the  principles  of  heathen  ethics.  It  is  enough  in  a 
Christian  country  to  remind  ourselves  of  the  Great  Example  which 
we  profess  to  follow.  It  is  not  needful  to  point  out  the  awful  danger 
of  admitting  the  principle  which  has  been  contended  for.  Who  is  to 
be  the  judge  of  this  sort  of  necessity?  By  what  measure  is  the  com- 
parative value  of  lives  to  be  measured  ?  Is  it  to  be  strength,  or  intel- 
lect, or  what?  It  is  plain  that  the  principle  leaves  to  him  who  is  to 
profit  by  it  to  determine  the  necessity  which  will  justify  him  in  delib- 
erately taking  another's  life  to  save  his  own.  In  this  case  the  weakest, 
the  3'oungest,  the  most  unresisting  was  chosen.  Was  it  more  neces- 
sary to  kill  him  than  oue  of  the  grown  men?     The  answer  must  be,  No. 

"  So  spake  the  Fiend  ;  and  with  necessity, 
The  tyrant's  plea,  excused  his  devilish  deeds." 

It  is  not  suggested  that  in  this  particular  case  the  "deeds"  were 
"  devilish  ;  "  but  it  is  quite  plain  that  such  a  principle,  once  admitted, 
might  be  made  the  legal  cloak  for  unbridled  passion  and  atrocious 
crime.  There  is  no  path  safe  forjudges  to  tread  but  to  ascertain  the 
law  to  the  best  of  their  ability  and  to  declare  it  according  to  their 
judgment,  and  if  in  any  case  the  law  appears  to  be  too  severe  on  indi- 
viduals, to  leave  it  to  the  Sovereign  to  exercise  that  prerogative  of 
mercy  which  the  Constitution  has  entrusted  to  the  hands  fittest  to 
dispense  it.  It  must  not  be  supposed  that,  in  refusing  to  admit  temp- 
tation to  be  an  excuse  for  crime,  it  is  forgotten  how  terrible  the  temp- 
tation was,  how  awful  the  suffering,  how  hard  in  such  trials  to  keep 
the  judgment  straight  and  the  conduct  pure.  We  are  often  compelled 
to  set  up  standards  we  cannot  reach  ourselves  and  to  lay  down  rules 
which  we  could  not  ourselves  satisfy.  But  a  man  has  no  right  to 
declare  temptation  to  be  an  excuse,  though  he  might  himself  have 
yielded  to  it,  nor  allow  compassion  for  the  criminal  to  change  or 
weaken  in  any  manner  the  legal  definition  of  the  crime.  It  is  there- 
fore our  duty  to  declare  that  the  prisoners'  act  in  this  case  was  wilful 
murder ;  that  the  facts  as  stated  in  the  verdict  are  no  legal  justificntion 

of  the  homicide.  Judgment  /or  the  Crown. 

38 


,94  EEGINA  V,  KEED.  [CHAP.  IX. 


SECTION   VI. 

Custom. 

ANONYMOUS. 

Common  Pleas, 

[Reported  2  Leon.  12.] 

Manwood,  J.,  said:  When  I  was  servant  to  Sir  James  Hales, 
one  of  the  Justices  of  the  Common  Pleas,  one  of  his  servants  was 
robbed  at  Gads  Hill,  within  the  Hundred  of  Gravesend  in  Kent,  and  he 
sued  the  men  of  the  Hundred  upon  this  statute,^  and  it  seemed  hard  to 
the  inhabitants  there  that  they  should  answer  for  the  robberies  done  at 
Gads  Hill,  because  robberies  are  there  so  frequent  that  if  they  should 
answer  for  all  of  them,  that  they  should  be  utterly  undone.  And 
Harris^  Sergeant,  was  of  counsel  with  the  Inhabitants  of  Gravesend, 
and  pleaded  for  them,  that  time  out  of  mind,  etc.,  felons  had  used  to 
rob  at  Gads  Hill,  and  so  prescribed,  and  afterwards  hy  award  they 
were  charged. 


REGINA   V.   REED. 

Sussex  Assizes.     1871. 

[Reported  12  Cox  C.  C.  1.] 

The  indictment  stated  that  the  defendants  did  unlawfully  and  inde- 
cently expose  their  bodies  and  persons  naked  and  uncovered  in  pres- 
ence of  divers  of  her  Majest3''s  subjects,  to  their  great  scandal,  and  to 
the  manifest  corruption  of  their  morals ;  and,  second  count,  that  the 
defendants  on  a  certain  public  and  common  highway,  in  the  parish 
of  Appledown,  unlawfully  and  indecently  did  expose  their  bodies  and 
persons  naked  and  uncovered  in  the  presence  of  divers  subjects  then 
and  there  being,  and  within  sight  and  view  of  divers  others  passing  and 
repassing  in  the  highwa}-,  to  the  common  nuisance  of  the  subjects  of 
the  Queen. 

The  defendants  pleaded  not  guilty. 

1  Statute  of  Winchester,  13  Edw.  1. 


SECT.  VI.]  REGINA   V.    REED.  595 

Hawkins,  Q.  C,  and  Grantham,  for  the  prosecution. 
Willoughby  and  A.  L.  Smith,  for  the  defendants. 

Ilaickins,  in  opening  the  case,  cited  Rex  v.  Crowden,  2  Camp. 
N.  P.  C.  89,  where  a  defendant  was  convicted  of  indecency  in  bathing 
at  Brighton  in  view  of  houses  recently  erected.  Although  in  the  pres- 
ent case  it  was  not  alleged  that  the  bathing  was  within  view  of  the 
houses,  it  was  urged  that,  as  it  was  on  a  public  pathway,  it  was  the 
same  case  in  point  of  principle. 

It  appeared  that  the  bathing  took  place  in  the  sea,  at  a  spot  about 
two  miles  from  Chichester,  and  half  a  mile  from  the  nearest  dwelling- 
house,  at  the  mouth  of  the  Levant,  a  stream  flowing  from  Chichester, 
and  where  the  water  was  deeper  than  elsewhere  on  that  part  of  the  coast. 
The  bathing-place  was  on  a  public  footwa\'  from  Chichester,  on  a  bank 
or  sea-wall  along  the  beach.  The  side  of  the  bank  next  to  the  sea,  as 
it  was  a  sea-wall,  was  not  accessible  as  a  place  for  dressing  and  un- 
dressing, and  so  the  bathers  dressed  and  undressed  on  the  land  side  of 
the  path.  Hence  they  passed  naked  to  and  from  the  sea  across  the 
path  ;  and  it  was  proved  that  as  many  as  eighteen  or  twenty  women 
passed  along  the  footpath  in  the  course  of  a  day,  and  that  sometimes 
the}'  had  to  turn  back  in  order  to  avoid  the  bathers.  The  bathing  took 
place,  not  merel}'  in  the  morning  and  evening,  but  in  the  afternoon,  at 
the  time  women  were  walking  along  the  path.  Moreover,  as  the  bank 
was  five  or  six  feet  high,  the  bathers,  when  on  the  path,  were  seen  at 
some  distance. 

It  was  proved  that  bathing  went  on  at  the  time  women  were  passing, 
and  that  sometimes  the}'  had  to  turn  back.  The  pathway  was,  it  was 
stated,  one  of  the  most  pleasant  walks  round  Chichester,  and  a  good 
deal  frequented  by  ladies,  especiall}'  in  that  season  of  the  year  when 
bathing  went  on  ;  and  the  prosecutor,  Mr.  Stanford,  whose  house  was 
within  half  a  mile  of  the  bathing-place,  stated  that  the  bathers  could  be 
seen  from  some  of  the  windows  of  his  house  and  from  his  garden.  But 
it  did  not  appear  that  complaints  had  been  made  until  the  prosecutor 
purchased  the  house  about  two  years  ago,  and  it  also  appeared  that 
there  was  another  house  nearer  than  his,  and  that  the  inhabitants  did 
not  complain,  the  nearest  house  being  above  a  quarter  of  a  mile  from 
the  bathing-place.  Further,  it  appeared  that  for  more  than  half  a 
century  bathing  had  taken  place  there  without  any  complaint,  and  that 
there  had  not  been  on  the  part  of  an}'  of  the  defendants  any  exposure 
beyond  what  was  necessarily  incident  to  bathing.  Nevertheless,  it 
appeared  that  tiie  pathway  from  which  the  bathing  took  place  was  one 
of  the  most  pleasant  walks  in  the  neighborhood  of  Chichester,  and  that 
it  was  practically  closed  to  females  during  the  bathing  season,  which 
was,  of  course,  the  finest  portion  of  the  year. 

CocKBUKN,  C.  J.  If  the  place  where  the  bathing  went  on  was  a 
place  where  persons  could  not  bathe  without  indecent  exposure,  it  was 
a  place  where  bathing  ought  not  to  go  on.  Undoubtedly,  if  it  was  a 
place  where  people  rarely  passed,  and  where  there  was  no  necessity  for 


596  BANKUS   V.    STATE.  [CIIAP.  IX. 

passing  at  all,  it  would  be  a  material  element  in  the  case.  But  the 
mere  fact  that  bathing  could  not  go  on  in  the  place  without  exposure 
was  not  enough  to  excuse  the  exposure,  and  was  rather  a  reason  why 
the  bathing  ought  not  to  go  on.  Upon  these  facts  it  was  quite  impos- 
sible that  the  defendants  could  resist  a  conviction  upon  this  indictment. 
There  was,  it  appeared,  a  public  footway  frequented  in  fine  weather  b}' 
the  inhabitants  of  Chichester,  and  which  must  be  taken  to  be  an  ancient 
and  accustomed  footway.  It  was  impossible  to  set  up  a  customary 
right  to  bathe  close  to  the  path  in  such  a  wa^-  as  to  violate  public 
decency,  and  thus  to  be  inconsistent  with  the  use  of  the  footway  by  an}- 
of  the  Queen's  subjects,  especially  of  the  female  sex.  No  one  could 
suppose  that  respectable  women  could  frequent  the  footpath  where  men 
were  in  the  habit  of  bathing,  and  were  constantly  seen  in  a  state  of 
nudity.  It  was  clear,  therefore,  that  the  usage  so  to  bathe,  however 
long  it  might  have  existed,  could  not  be  upheld,  and  that  those  persons 
who  thus  exposed  themselves  upon  or  near  to  a  public  footway  were 
liable  to  be  indicted  for  indecenc}'.  There  must,  if  the  prosecution  was 
pressed,  be  a  verdict  of  guilty  upon  this  indictment,  unless  the  facts  as 
thus  shown  in  evidence  could  be  altered. 

It  was  not  suggested  for  the  defence  that  the  facts  could  be  altered. 

Haiokiiis,  for  the  prosecution,  stated  that  it  was  not  desired  to  press 
the  prosecution,  if  protection  for  the  future  could  be  secured,  and  there- 
upon it  was  agreed  between  the  parties  that  bathing  henceforth  should 
take  place  from  a  shed  to  be  erected  for  the  purpose,  and  on  this 
condition  the  jury  were  discharged.^ 


BANKUS  V.   STATE. 

Supreme  Court  of  Indiana.     1853. 

{Reported  A  Ind.  114.] 

Perkins,  J.  Indictment  for  a  riot.  Jury  trial,  conviction,  motion 
for  a  new  trial  overruled,  and  judgment  against  the  defendants. 

The  bill  of  exceptions  in  the  case  states  the  substance  of  the  evidence 
given  as  follows:  "Jesse  Bankus,  Lewis  Simpson,  William  Woods, 
and  William  McShirely,  four  of  the  defendants,  were  on  trial,  and  three 
witnesses  were  examined  on  the  part  of  the  state  (one  of  whom  was 
engaged  in  the  alleged  riot  with  the  defendants),  whose  testimony 
tended  to  prove  that  on  a  certain  evening,  within  a  ^ear  before  the 
finding  of  said  indictment,  at  the  county  of  Henry,  the  above-named 
defendants  were  at  a  certain  place  in  said  county,  called  Chicago, 
(there  being  no  evidence  to  prove  that  they  had  assembled  at  said  place 
by  previous  concert  or  arrangement,  for  any  purpose  whatever,  except 
the  facts  that  they  were  all  present  without  any  known  business,  and 

1  Ace.  Com.  V.  Perry,  139  Mass.  198. 


SECT.  VI.]  BANKUS    V.    STATE.  597 

that  they  lived  in  different  parts  of  the  neighborhood) ;  that  there  had 
been  an  infair  at  the  house  of  one  Jacob  Wise,  in  said  Chicago,  whose 
house  was  situated  on  or  near  the  public  highway  ;  that  the  defendants, 
with  one  exception,  were  young  men,  one  of  whom  went  to  a  neighbor- 
ing house  and  borrowed  a  horn,  with  which  they  marched  back  and 
forth  along  the  highway,  sometimes  blowing  said  horn  and  singing 
songs,  but  not  vulgar  ones,  before  the  house  of  said  Wise,  and  north 
and  south  of  it,  and  hallooed  so  that  they  could  be  heard  near  a  mile 
distant,  as  certain  persons,  not  witnesses,  had  informed  said  Wise  ;  and 
that  they  continued  on  the  ground,  thus  acting,  till  one  or  two  o'clock 
in  the  morning.  But  said  witnesses  all  concurred  in  stating  that  the 
defendants  were  all  in  good  humor,  and  used  no  violence  further  than 
above  set  forth  ;  that  they  had  no  guns  or  weapons  of  any  kind,  made 
no  threats  or  attempts  at  force  of  any  kind  ;  that  the  witnesses  were 
not  in  the  least  alarmed,  and  feared  no  danger  of  any  kind,  and  were  in 
no  way  disturbed,  except  that  Jacob  Wise  stated  that  he  went  to  bed 
about  nine  o'clock,  and  was  awakened  occasionally  by  the  hallooing  in 
the  voad,  and  that  a  pedler,  who  put  up  at  the  house  of  said  Wise  that 
night  (it  being  a  public  house),  inquired  if  there  were  a  lock  and  key 
to  the  stable  in  which  his  horses  were  kept;  and  that  said  Wise,  at  the 
instance  of  said  pedler,  locked  the  stable  ; "  which  was  all  the  testimony 
given  in  the  cause. 

The  question  is,  whether,  upon  the  foregoing  evidence,  the  jury  were 
authorized  to  find  the  defendants  guiltj'  of  a  riot. 

The  R.  S.  of  1843  enact,  p.  973,  that  "  if  three  or  more  persons  shall 
actually  do  an  unlawful  act  of  violence,  either  with  or  without  a  common 
cause  or  quarrel,  or  even  do  a  lawful  act  in  a  violent  and  tumultuous 
manner,  they  shall  be  deemed  guilt}'  of  a  riot."  The  R.  S.  of  1852, 
vol.  2,  p.  425,  thus  define  a  riot:  "  If  three  or  more  persons  shall  do 
an  act  in  a  violent  and  tumultuous  manner,  they  shall  be  deemed  guilty 
of  a  riot." 

A  great  noise  in  the  night-time,  made  by  the  human  voice  or  by 
blowing  a  trumpet,  is  a  nuisance  to  those  near  whom  it  is  made.  The 
making  of  such  a  noise,  therefore,  in  the  vicinity  of  inhabitants,  is  an 
unlawful  act;  and,  if  made  by  three  or  more  persons  in  concert,  is,  by 
the  statute  of  1843,  a  riot.  All  these  facts  exist  in  the  present  case. 
Here  was  a, great  noise,  heard  a  mile,  in  the  night-time,  made  with 
human  voices  and  a  trumpet,  in  the  vicinity  of  inhabitants.  The  re- 
quirements of  the  statute  for  the  making  out  of  the  offence  are  filled. 
The  noise  was  also  made  tumultuousl}'.  The  act  itself  involves  tumul- 
tuousness  of  manner  in  its  performance.  But  it  is  said,  here  was  no 
alarm  or  fear.  The  statute  defining  the  offence  says  nothing  about 
alarm  or  fear.  In  this  case,  however,  it  was  only  the  witnesses  who 
were  not  alarmed.  Others  within  the  distance  of  the  mile  in  which  the 
noise  was  heard,  and  who  were  not  present  to  observe  the  actual  con- 
dition of  things,  may  have  been,  and  doubtless  were,  alarmed  ;  and  the 
pedler  was  afraid  his  horses  would  be  stolen. 


598  VICE   V.   STATE.  [CHAP.  IX. 

It  is  said  the  rioters  were  in  good  humor.  Very  likely,  as  they  were 
permitted  to  carry  on  their  operations  without  interruption.  But  with 
what  motive  were  they  performing  these  good-humored  acts?  Not, 
certainly,  for  the  gratification  of  Wise  and  his  famil}-.  They  were  giv- 
ino-  them  what  is  called  a  charivari,  which  Webster  defines  and  explains 
as  follows  :  "  A  mock  serenade  of  discordant  music,  kettles,  tin-pans, 
etc.,  designed  to  annoy  and  insult.  It  was  at  first  directed  against 
widows  who  married  a  second  time,  at  an  advanced  age,  but  is  now 
extended  to  other  occasions  of  nocturnal  annoyance  and  insult." 

Again,  it  is  urged  that  these  defendants  were  but  acting  in  accord- 
ance with  the  custom  of  the  country.  But  a  custom  of  violating  the 
criminal  laws  will  not  exempt  such  violation  from  punishment.  In  the 
case  of  The  State  of  Pennsylvania  v.  Lewis,  et  al.,  Add.  R.  279,  it 
appeared  that  on  the  5th  of  November,  1795,  there  was  a  wedding  at 
the  house  of  one  John  Weston.  The  defendants  in  said  case  were 
there  without  invitation,  were  civilly  treated,  and,  in  the  evening,  when 
dancing  commenced,  began  a  disturbance  in  which,  during  the  evening, 
Weston  was  so  seriously  injured  that,  on  the  third  day  after,  he  died. 
On  the  trial  of  the  indictment  against  said  defendants,  Campbell,  Pen- 
tecost, and  Brackenridge,  in  their  argument,  said,  "These  men  did 
nothing  more  than  an  usual  frolic,  according  to  the  custom  and 
manners  of  this  country.  There  was  no  intention  of  hurt,  no  de- 
sign of  mischief,  in  which  the  malice,  which  is  a  necessary  ingredient  of 
murder,  consists."  But  the  argument  did  not  prevail;  and  the  Court 
said,  '' If  appearance  of  sport  will  exclude  the  presumption  of  malice, 
sport  will  always  be  affected  to  cover  a  crime."  The  defendants  were 
convicted  of  murder  in  the  second  degree. 

The  case  before  us  we  regard  as  a  plain,  but  not  an  aggravated, 
one  of  riot,  and  the  judgment  below  must  be  affirmed.  The  defendants 
were  fined  but  three  dollars  each.     The  judgment  is  aflarmed  with  costs. 


VICK  V.   STATE. 
Court  of  Criminal  Appeals  of  Texas.     1902. 

[Reported  69  Sonthivestern  Rep.  156] 

Brooks,  J.-  Appellant  was  prosecuted  under  an  information  charging 
the  theft  of  a  load  of  wood.  Upon  conviction,  his  punishment  was 
assessed  at  a  fine  of  So  and  one  hour's  confinement  in  the  county 
jail.   .  .  . 

Appellant  also  complains  that  the  court  erred  in  not  charging  the 
jury  as  to  the  custom  of  people  to  go  into  the  pastures  and  take  wood 
from  parties  owning  the  pastures.  There  is  no  law  authorizing  thieving 
by  custom.     This  testimon}*  was  not  admissible.  .  .  . 

The  judgment  is  affirmed. 

1  Only  so  much  of  the  case  as  discusses  the  defence  of  custom  is  given.  —  Ed. 


SECT.  VI.]  HENDRY   V.   STATE.  599 

HENDRY   V.   STATE. 
Supreme  Court  of  Florida.     1897. 

[Reported  39  Fla.  235.] 

Mabry,  J.  The  plaintiff  in  error  was  indicted,  tried  and  convicted 
of  the  larceny  of  cows,  the  property'  of  one  Adam  Mercer,  and  sentenced 
to  the  penitentiar}'  for  one  year.  Two  assignments  of  error  are  insisted 
on  for  a  reversal  of  the  judgment;  the  first  being  the  rejection  of  cer- 
tain testimony  sought  to  be  elicited  by  plaintiff  in  error  from  the  wit- 
ness, Ziba  King,  and  the  second,  relating  to  the  sufficiency  of  the 
evidence  to  sustain  the  verdict. 

Ziba  King,  testifying  for  the  prosecution,  stated  that  he  ran  a 
butcher  shop  at  Punta  Gorda,  and  that  some  time  in  May,  1894, 
defendant  delivered  to  him  at  his  butcher  shop  in  DeSoto  county 
about  nineteen  head  of  cattle,  and  among  them  were  six  or  seven  in 
the  mark  and  brand  of  Adam  Mercer  ;  that  witness  knew  the  mark  and 
brand  of  Mercer,  and  defendant  stated  at  the  time  of  the  delivery  of  the 
cattle  that  he  was  authorized  to  sell  them.  Witness  bought  the  cattle 
from  defendant  and  paid  him  for  seventeen  head,  most  of  which  were 
butchered.  On  cross-examination  of  this  witness,  after  stating  that  he 
had  been  extensively  engaged  in  the  cattle  business  for  twenty-five 
3'ears,  and  was  familiar  with  the  rules  and  customs  of  stock  men  in  De- 
Soto countv,  the  following  question  was  propounded,  viz. :  You  have 
stated  that  you  have  been  extensively  engaged  in  the  cattle  business  in. 
this  county  for  twenty-five  years,  and  that  you  are  familiar  with  the 
rules  and  customs  of  stock  men,  please  state  whether  or  not  it  has  been, 
the  custom  among  cattle  owners  of  this  count}',  during  the  time  you. 
have  been  engaged  in  the  cattle  business,  to  drive  to  market  and  sell  the 
cattle  of  their  neighbors  where  they  were  on  friendlv  terms  with  each 
other,  W'ithout  any  special  autliorit}-  for  so  doing,  and  with  the  under- 
standing that  they  would  be  paid  for  by  the  men  who  drove  them  such 
price  as  the}'  could  obtain  for  them  in  the  market,  with  or  without  a 
reasonable  compensation  for  driving  them?"  This  question  was  ob- 
jected to  by  the  State  Attorney  and  excluded  by  the  court,  and  we 
are  of  the  opinion  that  there  was  no  error  in  the  ruling.  The 
question  was  on  cross-examination  of  the  state's  first  witness,  and 
w^as  not  in  cross  of  any  testimony  brought  out  on  direct  examina- 
tion by  the  state,  but  the  objection  was  not  based  on  this  ground, 
and  it  may  be  said  to  have  been  waived.  The  charge  against  the 
defendant  was  for  the  larceny  of  the  animals  described  in  the  in- 
dictment, and  this  included  not  only  a  wrongful  taking  of  the  prop- 
erty of  another,  but  also  that  it  was  done  animo  furandi,  or  with  the 
intent  to  steal.  There  can,  of  course,  be  no  legal  ciistom  to  justify  one 
man  in  stealing  the  property  of  another,  as  such  a  custom  would  be 
bad  and  contrary  to  law.     Commonwealth  v.  Doane,  1  Gushing,  5.    We 


goo  HENDRY   V.   STATE.  [CHAP.  IX. 

do  not  understand  that  this  legal  proposition  is  questioned  by  counsel 
for  plaintiff  in  error,  but  it  is  insisted  that  the  custom  proposed  to  be 
shown,  if  it  existed,  was  proper  as  bearing  upon  the  intent  with  which 
the  accused  took  the  property,  and  that  it  would  tend  to  show  he  did 
not  take  it  with  a  felonious  purpose.     It  had  not  been  shown  that  the 
accused  was  a  cattle  owner  residing  in  DeSoto  county  on  friendly 
terms  with  the  owner  of  the  cattle  alleged  to  have  been  stolen,  or  was 
in  any  way  entitled  to  avail  himself  of  the  custom  sought  to  be  shown. 
Subsequent  testimony  of  the  accused  himself  showed  that  he  was  not  a 
cattle  owner,  and  was  not  in  a  situation  to  avail  himself  of  such  a  cus- 
tom, if  it  did  exist.     If  it  had  been  shown,  or  offered  to  be  shown, 
that  the  accused  was  a  cattle  owner,  residing  in  DeSoto  county,  on 
friendly  terms  with  the  owner  of  the  cattle  in  question,  and  that,  under 
such  a  custom  offered  to  be  shown,  he  had  driven  the  cattle  to  market 
and  had  sold  them,  but  with  the  intention  of  accounting  to  the  owner 
for  the  purchase  money,  we  do  not  intimate  that  the  evidence  of  such  a 
custom  would  be  improper.     It  might  become  pertinent  and  material 
in  such  a  case,  but  the  accused  in  the  present  case  was  not  shown  to  be 
a  stock  owner,  or  in  any  proper  way  connected  with  such  a  custom,  if 
it  existed,  and  there  was  no  error  in  rejecting  the  proposed  testimony. 
We  have  entertained  some  misgivings  as  to  the  sufficiency  of  the 
evidence  to  sustain  the  verdict,  but  after  a  careful  examination  have 
concluded  that  it  is  of  such  a  nature,  when  viewed  in  an   unfavorable 
light  against  the  accused,   as  to  sustain  the  conviction.     The   credi- 
bility of  witnesses,  in  case  of  conflict,  we  leave  to  the  settlement  of 
the  jury;  nor  can  we  say  how  much  credence  must  be  given  to  the 
evidence   of  the  accused  where  there  is  conflict  or  improbability  of 
statement.     It  is  true,  as  contended  by  counsel  for  plaintiff  in  error, 
that  to  constitute  larceny,  the  taking  must  be  with  a  felonious  intent 
at  the  time,  and  whether  such  intent  existed  is  a  question  of  fact  to  be 
determined  by  the  jury  from  all  the  facts  of  the  case.     The  testimony 
before  us  shows  beyond  dispute  that  the  accused  gathered  the  cattle  of 
Adam  Mercer  and  drove  them  some  thirty  miles  to  a  market  and  sold 
them  for  money  which  he  never  accounted  to  the  owner  for,  or  offered 
to  make  any  account,  and  under  all  the  facts  of  the  case  we  arc  of  the 
opinion  that  the  question  of  whether  the  accused  took  the  cattle  with 
felonious  purpose  of  converting  them  to  his  own  use  and  profit,  was 
proper   for   the  jury  to  settle,  and  as    they  determined    it   adversely 
to  him,  the  judgment  will  be  affirmed. 


SECT.  I.]  EEX   V.    RICHA.RDSON.  601 

CHAPTER  X. 
PARTIES   IN   CRIME. 


SECTION   I. 

Wlio  are  Parties. 

ANONYMOUS. 
Old  Bailey.     1723. 
{Reported  8  Blod.  165.] 

At  tbe  sessions  in  the  Old  Bailey  held  there  on  the  ninth  day  of 
April,  in  the  ninth  year  of  George  the  First,  where  some  of  the  judges 
of  the  Common  Pleas  were  present,  this  case  happened  : 

Two  men  were  beating  another  man  in  the  street  in  the  night-time. 
A  stranger  passing  by  at  the  same  time  said,  "I  am  ashamed  to  see  two 
men  beat  one."  Thereupon  one  of  those  who  was  beating  the  other  ran 
to  the  stranger  in  a  furious  manner,  and  with  a  knife  which  he  held  in  his 
right  hand,  gave  him  a  deep  wound,  of  which  he  died  soon  after.  And 
now  both  the  others  were  indicted  as  principals  for  the  said  murder. 

But  the  Judges  were  of  opinion  that,  because  it  did  not  appear  that 
one  of  them  intended  any  injury  to  the  person  killed,  he  could  not  be 
guilt}'  of  his  death,  either  as  principal  or  accessory.  It  is  true,  they 
were  both  doing  an  unlawful  act,  but  the  death  of  the  party  did  not 
ensue  upon  that  act. 


REX   V.    RICHARDSON. 

Old  Bailey.     1785. 
[Reported  Leach  (Ath  ed.)  387.] 

At  the  Old  Bailej-,  in  June  Session  1785,  Daniel  Richardson  and 
Samuel  Greenow  were  indicted  before  Mr.  Justice  Bullek  for  a  high- 
way- robbery  on  John  Billings. 

It  appeared  in  evidence  that  the  two  prisoners  accosted  the  prose- 
cutor as  he  was  walking  along  the  street,  b}-  asking  him  in  a  peremp- 
toiy  manner  what  money  he  had  in  his  pocket ;  that  upon  his  replying 
that  he  had  only  two-pence  half-penny  one  of  the  prisoners  immedi- 
ately said  to  the  other,  "  If  he  really  has  no  more  do  not  take  that," 
and  turned  as  if  with  an  intention  to  go  awa}' ;  but  the  other  prisoner 
stopped  the  prosecutor,  and  robbed  him  of  the  two-pence  half-penn}', 
which  was  all  the  money  he  had  about  him.  But  the  prosecutor  could 
not  ascertain  which  of  them  it  was  that  had  used  this  expression,  nor 
which  of  them  had  taken  the  half-pence  from  his  pocket. 


602  liEGINA    V.    SWINDALL.  [CHAP.  X. 

The  Court.  ..  The  point  of  law  goes  to  the  acquittal  of  both  the 
prisoners  ;  for  If  two  men  assault  another  with'  intent  to  rob  hira,  and 
one  of  them,  before  any  demand  of  money,  or  offer  to  take  it  be  made, 
repent  of  what  he  is  doing,  and  desist  from  the  prosecution  of  such 
intent,  he  cannot  be  involved  in  the  guilt  of  his  companion  who  after- 
wards takes  the  money  ;  for  he  changed  his  evil  intention  before  the 
act  which  completes  the  offence  was  committed.  That  prisoner  there- 
fore, whichever  of  the  two  it  was  who  thus  desisted,  cannot  be  guilty 
of  the  present  charge  ;  and  the  prosecutor  cannot  ascertain  who  it  was 
that  took  the  property.  One  of  them  is  certainly  guilt}-,  but  which  of 
them  personally  does  not  appear.  It  is  like  the  Ipswich  Case,  where 
five  men  were  indicted  for  murder;  and  it  appeared,  on  a  special  ver- 
dict, that  it  was  murder  in  one,  but  not  in  the  other  four ;  but  it  did 
not  appear  which  of  the  five  had  given  the  blow  which  caused  the 
death,  and  the  court  thereupon  said  that,  as  the  man  pould  not  be 
clearly  and  positively  ascertained,  all  of  them  must  be  discharged. 

The  two  prisoners  were  accordingly  acquitted.^ 


REGINA  V.    SWINDALL, 

Stafford  Assizes.     1846. 

{Reported  2  Carrington  <J-  Kirwan,  230.] 

Manslaughter.  —  The  prisoners  were  indicted  for  the  manslaughter 
of  one  James  Durose.  The  second  count  of  the  indictment  charged 
the  prisoners  with  inciting  each  other  to  drive  their  carts  and  horses 
at  a  furious  and  dangerous  rate  along  a  public  road,  and  with  driving 
their  carts  and  horses  over  the  deceased  at  such  furious  and  dangerous 
rate,  and  thereby  killing  him.  The  third  count  charged  Swindall  with 
driving  his  cart  over  the  deceased,  and  Osborne  with  being  present, 
aiding  and  assisting.  The  fourth  count  charged  Osborne  with  driving 
his  cart  over  the  deceased,  and  Swindall  with  being  present,  aiding 
and  assisting. 

Upon  the  evidence  it  appeared  that  the  prisoners  were  each  driving 
a  cart  and  horse,  on  the  evening  of  the  12th  of  August,  1845.  The 
first  time  they  were  seen  that  evening  was  at  Draycott  toll-gate,  two 
miles  and  a  half  from  the  place  where  the  deceased  was  run  over. 
Swindall  there  paid  the  toll,  not  only  for  that  night,  but  also  for 
having  passed  with  Osborne  through  the  same  gate  a  day  or  two 
before.  They  then  appeared  to  be  intoxicated.  The  next  place  at 
which  the}'  were  seen  was  Tean  Bridge,  over  which  they  passed  at  a 
gallop,  the  one  cart  close  behind  the  other.  A  person  there  told  them 
to  mind  their  driving ;  this  was  990  yards  fi'om  the  place  where  the 

1  Ace.  People  v.  Moody,  45  Cal.  289.  -  Ed. 


SECT.  I.]  EEGIXA    V.    SWINDALL.  603 

deceased  was  killed.  The  next  place  where  the}'  were  seen  was  forty- 
seven  yards  beyond  the  place  where  the  deceased  was  killed.  The 
carts  were  then  going  at  a  quick  trot,  one  closely  following  the 
other.  At  a  turnpike-gate  a  quarter  of  a  mile  from  the  place  where 
the  deceased  was  killed,  Swindall,  who  appeared  all  along  to  have 
been  driving  the  first  cart,  told  the  toll-gate  keeper,  "  We  have  driven 
over  an  old  man,"  and  desired  him  to  bring  a  light  and  look  at  the 
name  on  the  cart ;  on  which  Osborne  pushed  on  his  cart,  and  told 
Swindall  to  hold  his  bother,  and  they  then  started  off  at  a  quick  pace. 
'Ihey  were  subsequently  seen  at  two  other  places,  at  one  of  which 
Swindall  said  he  had  sold  his  concern  to  Osborne.  It  appeared  that 
the  carts  were  loaded  with  pots  from  the  potteries.  The  surgeon 
proved  that  the  deceased  had  a  mark  upon  his  body  which  would  cor- 
respond with  the  wheel  of  a  cart,  and  also  several  other  bruises,  and, 
although  he  could  not  say  that  both  carts  had  passed  over  his  body,  it 
was  possible  that  both  might  have  done  so. 

Greaves,  in  opening  the  case  to  the  jur}-,  had  submitted  that  it  was 
perfectly  immaterial  in  point  of  law,  whether  one  or  both  carts  had 
passed  over  the  deceased.  The  prisoners  were  in  compau}-,  and  had 
concurred  in  jointly  driving  furiously  along  the  road  ;  that  that  was 
an  unlawful  act,  and,  as  both  had  joined  in  it,  each  was  responsible 
for  the  consequences,  though  the}'  might  arise  from  the  act  of  the 
other.  It  was  clear  that  they  were  either  partners,  master  and  ser- 
vant, or  at  all  events  companions.  If  they  had  been  in  the  same  cart, 
one  holding  the  reins,  the  other  the  whip,  it  could  not  be  doubted  that 
the}'  would  be  both  liable  for  the  consequences  ;  and  in  effect  the  case 
was  the  same,  for  each  was  driving"  his  own  horse  at  a  furious  pace, 
and  encouraging  the  other  to  do  the  like. 

At  the  close  of  the  evidence  for  the  prosecution,  Allen,  Serjt.,  for 
the  prisoners,  submitted  that  the  evidence  only  proved  that  one  of 
the  prisoners  had  run  over  the  deceased,  and  that  the  other  was  en- 
titled to  be  acquitted. 

Pollock,  C.  B.  I  think  that  that  is  not  so.  I  think  that  Mr. 
Greaves  is  right  in  his  law.  If  two  persons  are  in  this  wa}'  inciting 
each  other  to  do  an  unlawful  act,  and  one  of  them  runs  over  a  man, 
whether  he  be  the  first  or  the  last  he  is  equally  liable  :  the  person  who 
runs  over  the  man  would  be  a  principal  in  the  first  degree,  and  the 
other  a  principal  in  the  second  degree. 

Allen.,  Serjt.  The  prosecutor,  at  all  events,  is  bound  to  elect  upon 
which  count  he  will  proceed. 

Pollock,  C.  B.  That  is  not  so.  I  very  well  recollect  that  in 
Regina  v.  Goode  there  were  man}'  modes  of  deatli  specified,  and  that 
it  was  also  alleged  that  the  deceased  was  killed  by  certain  means  to 
the  jurors  unknown.  When  there  is  no  evidence  applicable  to  a  par- 
ticular count,  that  count  must  be  abandoned ;  but  if  there  is  evidence 
to  support  a  count,  it  must  be  submitted  to  the  jury.  In  this  case  the 
evidence  goes  to  support  all  the  counts. 


604 


REGINA   V.    SWINDALL.  [CHAP.  X. 


AHen,  Serjt,  addressed  the  jury  for  the  prisoners. 

Pollock,  C.  B.,  in  summing  up.  The  prisoners  are  charged  with 
contributing  to  the  death  of  the  deceased  by  their  negligence  and 
improper  conduct,  and,  if  they  did  so,  it  matters  not  whether  he  was 
deaf,  or  drunk,  or  negligent,  or  in  part  contributed  to  his  own  death  ; 
for  in  this  consists  a  great  distinction  between  civil  and  criminal  pro- 
ceedings. If  two  coaches  run  against  each  other,  and  the  drivers  of 
both  a°e  to  blame,  neither  of  them  has  any  remedy  against  the  other 
for  damages.  So,  in  order  that  one  ship-owner  may  recover  against 
another  for  any  damage  done,  he  must  be  free  from  blame  ;  he  cannot 
recover  from  the  other  if  he  has  contributed  to  his  own  injury,  however 
slight  the  contribution  may  be.  But  in  the  case  of  loss  of  life  the 
law  takes  a  totally  different  view,  —  the  converse  of  that  proposition  is 
true ;  for  there  each  party  is  responsible  for  any  blame  that  may 
ensue,  however  large  the  share  may  be ;  and  so  highly  does  the  law 
value  human  life  that  it  admits  of  no  justification  wherever  life  has 
been  lost,  and  the  carelessness  or  negligence  of  any  one  person  has 
contributed  to  the  death  of  another  person.  Generally,  it  may  be  laid 
down  that  where  one  by  his  negligence  has  contributed  to  the  death 
of  another  he  is  responsible ;  therefore,  you  are  to  say,  by  your  ver- 
dict, whether  you  are  of  opinion  that  the  deceased  came  to  his  death 
in  consequence  of  the  negligence  of  one  or  both  of  the  prisoners. 
A  distinction  has  been  taken  between  the  prisoners  :  it  is  said  that 
the  one  who  went  first  is  responsible,  but  that  the  second  is  not. 
If  it  is  necessary  that  both  should  have  run  over  the  deceased,  the 
case  is  not  without  evidence  that  both  did  so.  But  it  appears  to 
me  that  the  law,  as  stated  by  Mr.  Greaves,  is  perfectly  correct. 
Where  two  coaches,  totally  independent  of  each  other,  are  proceeding  in 
the  ordinary  way  along  a  road,  one  after  the  other,  and  the  driver  of  the 
first  is  guilty  of  negligence,  the  driver  of  the  second,  who  had  not  the 
same  means  of  pulling  up,  may  not  be  responsible.  J5ut  when  two 
persons  are  driving  together,  encouraging  each  other  to  drive  at  a 
dangerous  pace,  then,  whether" the  injury  is  done  by  the  one  driving 
the  first  or  the  second  carriage,  I  am  of  opinion  that  in  point  of 
law  the  other  shares  the  guilt.^ 

Yerdict,  Guilty. 
Greaves  and  Kynnersley ^  for  the  prosecution. 

Allen,  Serjt.,  and  G.  H.  Whalley,  for  the  prisoners. 

1  See  Reg.  v.  Salmon,  14  Cox  C.  C.  494.  —Ed. 


SECT.  I.J  REGINA  V.   CONEY.  605 

REGINA   V.    CONEY. 

Court  for  Crown  Cases  Reserved.     1882. 
[Reported  8  Q.  B.  D.  534.] 

Cave,  J.^  In  this  case  I  am  of  opinion  that  the  direction  to  the  jury 
was  wrong,  and  consequently  that  the  conviction  ought  not  to  stand. 

No  direction  to  a  jury  can,  in  my  opinion,  be  regarded  as  right  or 
wrong  without  reference  to  the  evidence  before  the  jury  ;  for  a  direc- 
tion which  is  sufficient  under  a  certain  state  of  facts  may  be  mislead- 
ing and  wrong  under  another  state  of  facts.  It  is  important,  therefore, 
first  to  see  what  the  offence  was  with  which  the  prisoners  were  charged 
and  what  was  the  evidence  against  them. 

The  prisoners  were  charged  in  one  count  with  a  common  assault  on 
one  Burke,  and  in  another  count  with  a  like  assault  on  one  Mitchell. 

The  evidence  was  that  on  the  16tli  of  June  last,  at  the  close  of  Ascot 
races,  Burke  and  Mitchell  had  engaged  in  a  fight  near  the  road  from 
Ascot  to  Maidenhead ;  that  a  ring  was  formed  with  posts  and  ropes  ; 
that  a  large  number  of  persons  were  present  looking  on,  some  of  whom 
were  undoubtedly  encouraging  the  fight ;  that  the  men  fought  for  some 
time  ;  and  that  the  three  prisoners  were  seen  in  the  crowd,  but  were  not 
seen  to  do  anything,  and  there  was  no  evidence  how  they  got  there  or 
how  long  they  stayed  there. 

The  chairman  of  quarter  sessions  directed  the  jury  in  the  words  of 
Russell  on  Crimes,  vol.  i.  p.  818 :  "  There  is  no  doubt  that  prize-fights 
are  illegal,  indeed  just  as  much  so  as  that  persons  should  go  out  to 
fight  with  deadly  weapons,  and  it  is  not  at  all  material  which  party 
strikes  the  first  blow,  and  all  persons  who  go  to  a  prize-fight  to  see  the 
combatants  strike  each  other,  and  who  are  present  when  they  do  so,  are, 
in  point  of  law,  guiltv  of  an  assault."  And  the  chairman  added,  in 
the  words  of  Littledale,  J.,  in  Rex  v.  Murphy,  6  C  «fe  P.  103:  "If 
the}'  were  not  casually  passing  by,  but  stayed  at  the  place,  they 
encouraged  it  by  their  presence,  although  they  did  not  say  or  do 
anything." 

By  this  direction  I  gather  that  the  chairman  laid  down  as  matter  of  law, 
first,  that  the  actual  fighters  in  a  prize-fight  are  guilty  of  an  assault ; 
and,  secondly',  that  if  any  person  is  shewn  to  have  been  present  in  the 
crowd  looking  on  at  the  fight,  that  is  not  merely  evidence,  but,  if  un- 
explained, conclusive  proof  that  he  was  aiding  and  abetting  the  assault. 
That  seems  to  be  the  natural  meaning  of  the  language  used,  and  that, 
from  the  finding  of  the  jury,  appears  to  me  to  be  the  sense  in  which 
they  understood  it.     They  found  a  verdict  of  guilty  against  five  of  the 

1  Concurring  opinions  were  delivered  by  Stephen,  Lopes,  North,  and  Haw- 
kins, JJ,  HuDDLESTON,  B.,  Manisty  and  Denman,  JJ.,  and  dissenting  opinions  by 
Mathew,  J.,  Pollock,  B.,  and  Lord  Coleridge,  C.  J. 


606  EEGINA  V.   CONEY.  [CHAP.  X. 

prisoners  who,  I  presume,  were  proved  to  have  taken  some  active  part, 
or  to  have  been  there  for  the  purpose  of  encouraging  the  fight ;  and  as 
to  the  three  prisoners  in  question,  they  found  that  they  were  guilty  of 
an  assault,  and  yet  that  they  were  not  aiding  and  abetting,  which  is  to 
my  mind  an  inconsistent  finding.  Indeed,  on  no  other  supposition  can 
I  understand  the  verdict,  for  the  evidence  against  the  three  prisoners, 
and  especially  against  Gilliam,  is  quite  consistent  with  their  being 
laborers  working  near  or  persons  going  quietly  home  from  the  races, 
who,  observing  a  crowd,  went  up  to  see  what  the  matter  was,  and 
finding  it  was  a  fight,  stayed  some  short  time  looking  on. 

For  the  defence  it  was  first  contended  that  inasmuch  as  Burke  and 
Mitchell  had  agreed  to  fight  there  was  no  assault.  I  am,  however,  of 
opinion  that  this  is  not  so.  With  regard  to  an  action  for  an  assault, 
in  the  case  of  Boulter  v.  Clarke,  BuUer's  Nisi  Prius,  p.  16,  it  was  held 
by  Parker,  C.  B.,  that  it  was  no  defence  to  allege  that  the  plaintiff 
and  defendant  fought  together  by  consent,  the  fighting  itself  being 
unlawful,  and  in  Matthew  v.  OUerton,  Comb.  218,  it  was  held  that  if 
one  license  another  to  beat  him,  such  license  is  no  defence,  because  it 
is  against  the  peace.  So  with  regard  to  an  Indictment  for  an  assault, 
Patteson,  J.,  in  Hex  v.  Perkins,  4  C.  &  P.  537,  speaking  of  a  prize- 
fight, says,  if  all  these  persons  went  out  to  see  these  men  strike  each 
other,  and  were  present  when  they  did  so,  they  are  all  in  point  of  law 
guilty  of  an  assault.  There  is  also  the  authority  of  Coleridge,  J.,  in 
Reg.  V.  Lewis,  1  C.  &  K.  419,  who  says  that  whenever  two  persons  go 
out  to  strike  each  other,  and  do  so,  each  is  guilty  of  an  assault. 

Reg.  V.  Orton,  39  L.  T.  293,  proves  nothing  against  tliis  view,  for  the 
most  that  can  be  said  of  that  case  is  that  this  point  did  not  arise  there. 
Cliristopherson  v.  Bare,  11  Q.  B.  473,  has  also  nothing  to  do  with  this 
point,  all  that  was  there  decided  being  that  a  plea  of  leave  and  license 
was  not  a  good  defence  to  an  action  for  an  assault,  on  the  ground  that 
if  that  is  a  defence,  it  arises  under  the  general  issue,  an  assault  by  leave 
and  license  being  a  contradiction  in  terms. 

The  true  view  is,  I  think,  that  a  blow  struck  in  anger,  or  which  is 
likely  or  is  intended  to  do  corporal  hurt,  is  an  assault,  but  that  a  blow 
struck  in  sport,  and  not  likely  nor  intended  to  cause  bodily  harm,  is 
not  an  assault,  and  that,  an  assault  being  a  breach  of  the  peace  and 
unlawful,  the  consent  of  the  person  struck  is  immaterial.  If  this  view 
is  correct,  a  blow  struck  in  a  prize-fight  is  clearly  an  assault ;  but  play- 
ing with  single-sticks  or  wrestling  do  not  involve  an  assault ;  nor  does 
boxing  with  gloves  in  the  ordinary  wa}-,  and  not  with  the  ferocity 
and  severe  punishment  to  the  boxers  deposed  to  in  Reg.  v.  Orton,  39 
L.  T.  293. 

It  was  next  contended  that  the  chairman  was  wrong  in  directing  the 
jury  in  the  words  of  Littledale,  J.,  in  Rex  v.  Murphy,  6  C.  &  P.  103, 
that  if  the  prisoners  were  not  merely  casually  passing  by,  but  stayed  at 
the  place,  they  encouraged  it  by  their  presence,  although  they  did  not 
sa}'  or  do  anything. 


SECT.  I.]  EEGINA   V.   CONEY.         '  607 

Now  it  is  a  gener.al  rule  in  the  case  of  principals  in  the  second  degree 
that  there  must  be  participation  in  the  act,  and  that,  although  a  man  is 
present  whilst  a  felony  is  being  committed,  if  he  takes  no  part  in  it,  and 
does  not  act  in  concert  with  those  who  commit  it,  he  will  not  be  a 
principal  in  the  second  degree  merely  because  he  does  not  endeavor 
to  prevent  the  felon}-,  or  apprehend  the  felon. 

In  1  Hale,  Pleas  of  the  Crown,  p.  439,  it  is  said  that  to  make  an 
abettor  to  a  murder  or  a  homicide  principal  to  a  felony  there  are  regu- 
larly two  things  requisite  ;  1st,  he  must  be  present,  2d,  he  must  be 
aiding  and  abetting.  If,  says  Hale,  A.  and  B.  be  fighting  and  C,  a 
man  of  full  age,  comes  by  chance,  and  is  a  looker-on  only,  and  assists 
neither,  he  is  not  guilty  of  murder  or  homicide  as  principal  in  the 
second  degree. 

So  again  in  Foster's  Crown  Law,  p.  350,  it  is  said  that  "  in  order 
to  render  a  person  an  accomplice  and  a  principal  in  felon}',  he  must  be 
aiding  and  abetting  at  the  fact,  or  read}'  to  afford  assistance  if  neces- 
sary, and  therefore  if  A.  happeneth  to  be  present  at  a  murder,  for 
instance,  and  taketh  no  part  in  it,  nor  eudeavoreth  to  prevent  it,  nor 
apprehendeth  the  murderer,  nor  levyeth  hue  and  cry  after  him,  this 
strange  behavior  of  his,  though  highly  criminal,  will  not  of  itself 
render  him  either  principal  or  accessory."  "I  would  be  here,"  he  con- 
tinues, "  understood  to  speak  of  that  kind  of  homicide,  amounting  in 
construction  of  law  to  murder,  which  is  usually  committed  openly  and 
before  witnesses,  for  in  the  case  of  assassinations  done  in  private,  to 
which  witnesses  who  are  not  partakers  in  the  guilt  are  very  rarely  ad- 
mitted, the  circumstances  I  have  mentioned  may  be  made  use  of  against 
A.,  as  evidence  of  consent  and  concurrence  on  his  part ;  and  in  that 
light  should  be  left  to  the  jury,  if  he  be  put  upon  his  trial." 

This  seems  to  me  to  hit  the  point.  Where  presence  may  be  entirely 
accidental,  it  is  not  even  evidence  of  aiding  and  abetting.  Where 
presence  is  pi'ima/acie  not  accidental,  it  is  evidence,  but  no  more  than 
evidence,  for  the  jury. 

In  accordance  with  the  principles  here  laid  down,  Kelly,  C.  B.,  in 
Reg.  V.  Atkinson,  11  Cox,  330,  a  case  of  persons  who  were  indicted  for 
a  serious  riot,  held,  that  the  mere  presence  of  a  person  among  the  riot- 
ers, even  though  he  possessed  the  power,  and  failed  to  exercise  it,  of 
stopping  the  riot,  did  not  render  him  Hable  on  sucli  a  charge,  and  that 
in  order  to  find  any  of  the  defendants  guilty,  the  jury  must  be  satisfied 
that  they  had  taken  part  in  an  assembly  for  an  unlawful  purpose,  and 
had  helped,  or  encouraged,  or  incited  the  others  in  the  prosecution  of 
that  purpose. 

In  Rex  V.  Borthwick,  1  Doug.  207,  it  is  laid  down  that  from  mere 
presence  the  court  cannot  intend  that  the  prisoner  was  aiding  and 
abetting. 

In  Rex  V.  Perkins,  4  C.  &  P.  537,  Perkins  and  three  others  were 
indicted  for  a  riot,  and  an  assault  on  Coates. 


608  REGINA  V.   CONEY.  [CHAP.  X. 

It  api?eared  that  a  prize-fight  was  fought  between  jerkins  and  Coates, 
and  that  of  the  other  three  defendants,  one  acted  as  Perkins's  second, 
another  collected  money  for  the  combatants,  while  the  third  walked 
round  the  ring  and  kept  the  people  back.  Mr.  Justice  Patteson  said, 
"  It  is  proved  that  all  the  defendants  were  assisting  in  this  breach 
of  the  peace,  and  there  is  no  doubt  that  persons  who  are  present  on 
such  an  occasion,  and  taking  any  part  in  the  matter,  are  equally  guilty 
as  principals." 

The  foreman  of  the  jury  said  that  the}'  doubted  whether  they  could 
find  all  the  defendants  guilty  of  an  assault,  whereupon  Mr.  Justice 
Patteson  said,  "  If  all  these  persons  went  out  to  see  these  men  strike 
each  otlier,  and  were  present  when  they  did,  they  are  all  in  point  of  law 
guilty  of  an  assault.  There  is  no  distinction  between  those  who  concur 
in  the  act  and  those  who  fight."  Whereupon  the  jury  convicted  the 
men  of  the  riot,  but  acquitted  them  of  the  assault. 

In  that  case  there  was  ample  evidence  that  the  accused  were  guilty 
of  the  assault,  and  the  case  did  not  require  Patteson,  J.,  to  lay  down, 
nor  do  I  understand  him  as  having  laid  down,  that  a  mere  on-looker  is 
ipso  facto  guilty  of  an  assault.  On  the  contiary,  I  understand  him  to 
say,  that  to  be  guilty,  they  must  not  only  be  present,  but  must  be 
"  taking  part  in  the  matter,"  as  he  expresses  it  in  the  one  passage, 
or,   "concurring  in  the  act,"  as  he  expresses  it  in  the  other. 

In  Reg.  V.  Young,  8  C.  &  P.  644,  the  prisoners  were  indicted  for  the 
murder  of  Mirfin,  who  was  killed  in  a  duel  by  one  EHot.  In  summing 
up,  Vaughan,  J.,  said,  "There  is  no  difficulty  as  to  the  law  upon  this 
subject.  Principals  in  the  first  degree  are  those  by  whom  the  death 
wound  is  inflicted.  Principals  in  the  second  degree  those  who  are 
present  at  the  time  it  is  given,  aiding  and  abetting,  comforting  and 
assisting  the  persons  actually  engaged  in  the  contest  —  mere  presence 
alone  will  not  be  sufficient  to  make  a  party  an  aider  and  abettor,  but  it 
is  essential  that  he  should  by  his  countenance  and  conduct  in  the  pro 
ceeding,  being  present,  aid  and  assist  the  principals.  If  either  of  the 
prisoners  sustained  the  principal  by  his  advice  or  presence,  or  if  you 
think  he  went  down  for  the  purpose  of  encouraging  and  forwarding 
the  unlawful  conflict,  although  he  did  not  do  or  say  anything,  yet,  if 
he  was  present  and  was  assisting  and  encouraging  when  the  pistol  was 
fired,  he  will  be  guilty  of  the  offence  imputed  by  the  indictment."  In 
that  direction  I  entirely  concur,  but  I  believe  if  a  similar  direction 
had  been  given  in  the  present  case,  the  prisoners  would  have  been 
acquitted. 

In  Reg.  V.  Cuddy,  1  C.  &  K.  210,  the  prisoner  was  charged  with  aid- 
ing and  abetting  Munro  in  the  murder  of  Colonel  Fawcett,  whom  Munro 
had  shot  in  a  duel,  AVilliams,  J.,  in  directing  the  jury  in  the  presence 
of  RoLFE,  B.,  said,  "  When  two  persons  go  out  to  fight  a  deliberate 
duel,  and  death  ensues,  all  persons  who  are  present  on  that  occasion, 
encouraging  or  promoting  that  death,  will  be  guilty  of  abetting  the 
principal  offender." 


SECT.  I.]  REGINA   V.    CONEY.  609 

So  far  the  decisions  are  uniform.  There  are,  however,  two  which 
ma}'  seem  to  favor  a  different  view  of  the  law. 

In  Rex  V.  Bellingham,  2  C.  &  P.  234,  Belli ngham  and  Savage  had 
agreed  to  fight,  and  about  1000  persons  were  assembled  to  witness  it. 
Mr.  Rogers,  a  pohce  magistrate,  being  applied  to  to  prevent  it,  went 
to  the  place  and  told  them  they  should  not  fight.  Skinner  said  they 
should,  and  a  scuffle  ensued  between  him  and  Mr.  Rogers,  which  ended 
in  a  general  tumult  on  the  part  of  the  mob,  and  the  rescue  of  Skinner. 
Bellingham,  Savage,  and  Skinner  were  indicted  for  a  riot,  and  for  assault- 
ing Mr.  Rogers,  and  were  convicted.  In  the  course  of  his  summing-up, 
BuRROUGH,  J.,  said,  "  By  law,  whatever  is  done  in  such  an  assembly 
by  one,  all  present  are  equally  hable.  These  fights  are  unlawful  as- 
semblies, and  every  one  going  to  them  is  guilty  of  an  oflTence."  These 
obiter  dicta  appear  to  me  to  be  no  justification  for  the  ruling  of  the 
chairman  in  the  present  case.  Burrough,  J.,  could  not  have  intended 
to  say  that  all  who  were  present  for  the  purpose  of  seeing  the  fight 
were  ?>w  facto  liable  for  the  riot  and  assault  upon  the  magistrate 
which  arose  incidentally  out  of  his  trying  to  prevent  the  fight,  and,  if 
he  did  not  mean  that,  his  remarks  had  no  relation  to  the  offence  then 
being  tried,  and  were  merely  in  the  nature  of  a  caution.  Moreover, 
taking  the  whole  together,  Burrough,  J.,  seems  to  have  referred  to 
people  going  to  prize-fights  for  the  purpose  of  encouraging  them,  and 
not  to  mere  on-lookers. 

In  Rex  V.  Murphy,  6  C.  &  P.  103,  the  prisoner  was  indicted  for  the 
murder  of  one  Thompson.  It  was  proved  for  the  prosecution  that  there 
was  a  fight  between  Michael  Murphy  and  the  deceased,  who  died  in 
consequence  of  the  blows  he  received,  and  that  the  prisoner  acted  as 
one  of  the  seconds.  For  the  defence  witnesses  were  called  to  shew 
that  though  the  prisoner  was  present,  he  did  not  act  as  second,  and 
that  he  did  nothing,  and  did  not  even  say  anything.  Mr.  Justice 
LiTTLEDALE  told  the  jury  that  if  the  prisoner  was  at  the  fight  encourag- 
ing it  by  his  presence,  he  was  guilty  of  manslaughter,  although  he  took 
no  active  part  in  it,  and,  on  his  attention  being  drawn  to  the  evidence 
for  the  defence,  his  Lordship  said,  "  I  am  of  opinion  that  persons  who 
are  at  a  fight,  in  consequence  of  which  death  ensues,  are  all  guilty  of 
manslaughter  if  they  encouraged  it  by  their  presence  —  I  mean,  if  they 
remained  present  during  the  fight.  I  say  that  if  they  were  not  casually 
passing  by,  but  stayed  at  the  place,  they  encouraged  it  by  their  pres- 
ence, although  they  did  not  say  or  do  anything.  If  the  death  occurred 
from  the  fight,  all  persons  encouraging  it  by  their  presence  are  guilty 
of  manslaughter." 

This  summing-up  unfortunately  appears  to  me  capable  of  being 
understood  in  two  different  ways.  It  may  mean  either  that  mere  pres- 
ence unexplained  is  evidence  of  encouragement,  and  so  of  guilt,  or  that 
mere  presence  unexplained  is  conclusive  proof  of  encouragement,  and 
so  of  S"ilt.     If  the  former  is  the  correct  meaning,  I  concur  in  the  law 

39 


610  COMMONWEALTH  V.   HADLEY.  [CHAP.  X. 

SO  laid  down ;  if  the  latter,  I  am  unable  to  do  so.  It  appears  to  me 
that  the  passage  tending  to  conve}^  the  latter  view  is  that  which  was 
read  b}-  the  chairman  in  this  case  to  the  jury,  and  I  cannot  help  think- 
ing that  the  chairman  believed  himself,  and  meant  to  direct  the  jury, 
and  at  anj'  rate  I  feel  satisfied  that  the  jury  understood  him  to  mean, 
that  mere  presence  unexplained  was  conclusive  proof  of  encouragement 
and  so  of  guilt ;  and  it  is  on  this  ground  I  hold  that  this  convictioa 
ought  not  to  stand. 


COMMONWEALTH  v.  HADLEY. 

Supreme  Judicial  Court  of  Massachusetts.     1846. 

[Reported  11  MetcaJf,  66.] 

Shaw,  C.  J.  The  present  case,  which  comes  before  the  Court  upon 
exceptions,  presents  a  question  of  great  importance  affecting  the  admin- 
istration of  the  license  laws  of  this  Commonwealth.  The  defendant 
was  indicted  upon  the  ss.  1  &  2  of  c.  47  of  the  Revised  Statutes,  and 
by  a  general  verdict  was  convicted  on  both.  Exceptions  were  taken  to 
the  directions  of  the  judge  before  whom  the  indictment  was  tried  in  the 
municipal  court.  It  appears  by  the  bill  of  exceptions  that  evidence 
was  introduced  in  support  of  the  indictment  tending  to  show  sales  of 
spirituous  liquors  to  be  used  in  a  certain  shop,  which  sales  were  effected 
therein  by  the  defendant.  On  this  proof  the  public  prosecutor  relied  to 
prove  the  sale  by  the  defendant,  as  charged  in  the  indictment. 

The  bill  of  exceptions  then  states  that  "the  defendant  offered  evi- 
dence to  show  that  the  premises  in  which  the  sales  were  effected  were 
not  leased  to  him  ;  that  he  was  not  the  proprietor  nor  owner  thereof; 
that  he  was  merely  a  hired  agent,  having  no  interest  in  the  profits,  and 
acting  in  the  presence  and  under  the  control  of  his  employer ;  and  he 
contended  that  to  support  the  indictment  the  government  must  show 
that  the  spirituous  liquor  was  to  be  used  in  his  house  or  other  tuildino-, 
and  that  if  the  defendant  was  a  mere  bartender  or  hired  agent  he  was 
not  liable  under  the  statute."  The  judge  declined  so  to  direct  the  jur}-, 
but  directed  them  "  that  such  evidence  could  not  be  a  sufficient  defence 
under  the  statute,  and  that  if  the  jury  believed  that  sales  were  effected 
by  the  defendant  in  the  manner  before  stated,  in  the  house  of  another 
as  a  hired  agent  or  bartender,  he  was  liable  under  the  statute." 

The  court  are  of  opinion  that  these  directions  were  right.  The  evi- 
dence first  offered  on  the  part  of  the  prosecutor  constituted  a  primd 
facie  case  to  support  the  indictment.  The  Rev.  Sts.,  c.  47,  provide, 
in  s.  1,  that  no  person  shall  presume  to  be  a  common  seller  of  wine, 
brandy,  etc.,  unless  first  licensed  as  an  innholder  or  common  victualler. 
Section  2  provides,  that  if  any  person  shall  sell  any  spirituous  liquor,  to 


\ 


SECT.  I.]  COMMONWEALTH    V.    HADLEY.  611 

be  used  in  or  about  his  house  or  other  buildings,  without  being  duly 
licensed,  he  shall  forfeit,  etc.  Any  person  incurs  the  penalty  of  the 
first  section  who  habitually  sells  to  persons  indiscriminately,  although 
he  does  not  profess  to  be,  or  appear  to  exercise  the  vocation  of,  an 
innholder  or  common  victualler.  Commonwealth  v.  Pearson,  3  Met. 
449.  Any  person  incurs  the  penalty  of  the  second  section  by  selling 
any  quantity,  in  a  particular  instance,  to  be  used  in  his  house.  Com- 
monwealth V.  Thurlow,  24  Pick.  374.  When,  therefore,  it  was  shown 
that  the  defendant  was  making  sales  of  the  prohibited  article,  in  a  shop 
adapted  for  the  purpose,  to  be  used  on  the  premises,  he  was  thereby 
doing  acts  implying  that  he  claimed  and  had  possession  and  control  of 
the  article  sold,  and  also  that  he  had  such  actual  and  uncontrolled 
po^j^sion,  occupation,  or  use  of  the  shop  and  place  of  sale  and  con- 
sumption, as  were  necessary  and  sufficient  to  accomplish  the  act  which 
the  law  expressly  prohibits.  Unless,  therefore,  something  further  were 
shown  by  way  of  justification  or  excuse  the  defendant  must  be  con- 
victed. The  true  question,  therefore,  is,  whether  the  evidence  offered 
by  the  defendant,  if  it  had  been  admitted,  showing  that  the  premises 
were  not  his  own,  but  that  he  acted  as  the  agent  and  under  the 
authority  of  another  person,  without  showing  that  such  person  was 
licensed,  would  constitute  such  excuse  or  justification. 

Then  we  are  brought  to  the  question  of  construction  —  if,  indeed, 
there  be  room  for  construction  —  of  those  words  of  the  statute,  "  any 
person  who  shall  sell."  It  appears  to  us  that  one  who  offers  an  article 
for  sale,  either  upon  the  application  of  the  purchaser  or  otherwise,  and 
who,  when  the  offer  is  accepted,  delivers  the  article  in  pursuance  of  the 
offer,  does  "  sell"  or  make  a  sale,  according  to  the  ordinary  sense  and 
meaning  of  that  term.  It  would  seem  strange  and  contradictory  to 
maintain  that  one  who  sells  goods  on  commission,  or  as  the  factor, 
agent,  or  salesman  of  another,  does  not  sell  them.  The  argument 
assumes  that  a  sale  must  be  construed  to  be  a  contract  by  which  the 
owner  of  property  alienates  it  and  transfers  his  title  to  another.  But 
this  is  a  very  limited  view  of  the  subject.  It  is  not  less  a  sale,  and 
even  a  valid  sale,  when  made  by  the  authority  of  the  owner.  So  the 
naked  possession  of  property',  however  obtained,  is  some  evidence  of 
title.  The  holder  may  make  a  sale  de  facto,  which  can  only  be  defeated 
by  one  having  a  higher  title,  and  which  may  be  ratified  by  the  assent  of 
the  owner.  The  statute  prohibits  all  sales  by  unlicensed  persons,  as 
well  sales  de  facto  as  sales  by  an  owner,  and  therefore  the  case  is 
within  the  words  of  the  statute. 

But  it  is  equally  within  the  spirit  of  the  statuuc.  In  construing  an 
act  of  the  legislature,  as  in  construing  every  other  instrument,  we  are 
to  look  at  the  entire  act,  and  every  provision  and  clause  in  it,  in  order 
to  ascertain  the  meaning  and  intent.  And  although  the  same  latitude 
of  construction  is  not  allowed  in  criminal  prosecutions  as  in  civil  suits, 
still  the  subject-matter  is  not  to  be  overlooked.  The  language  of  the 
statute  is  to  be  so  construed,  when  it  reasonably  can  be,  as  to  promote 


612  COMMONWEALTH   V.   HADLEY.  [CHAP.  X, 

rather  than  defeat  the  obvious  purposes  of  the  legislature.  Now,  in 
reading  this  statute,  it  is  impossible  not  to  perceive  that  the  plain  and 
governing  purpose  of  the  statute  is  to  restrain  and  prevent  the  dis- 
orders, breaches  of  the  peace,  riot,  pauperism,  and  crime,  which  would 
arise  from  the  too  free  use  and  too  easy  mode  of  obtaining  intoxicating 
liquor  in  small  quantities,  and  to  accomplish  this  by  prohibiting  the 
indiscriminate  sale  of  it  b}'  disorderly,  unsuitable,  and  unlicensed  per- 
sons. The  contemplated  mischiefs  arising  from  the  actual  sales  would 
not  be  less,  although  the  conduct  of  the  seller  should  also  be  unlawful 
in  other  respects ;  as  when  he  has  obtained  the  propert}^  bj'  finding, 
and  converted  it  to  his  own  use,  or  taken  it  tortiousl}-  bj-  an  act  of 
trespass,  or  actually  stolen  it.  Would  a  shop  opened  b}'  an  unlicensed 
person  for  the  indiscriminate  sale  of  spirituous  liquors  be  less  a  nui- 
sance because  it  is  also  a  receptacle  of  stolen  goods,  or  because  the  liquor 
actually  sold  in  it  has  been  stolen?  I  shall  not  be  understood  to  inti- 
mate that  stealing  or  receiving  stolen  goods,  or  goods  obtained  unlaw- 
fully, would  be  punishable  under  this  statute  as  a  substantive  offence, 
but  only  that  the  actual  sale  of  intoxicating  liquor  is  not  the  less  within 
the  mischiefs,  and  the  express  prohibition  of  the  statute,  because 
the  subject  of  the  sale  has  come  unlawfully  to  the  possession  of  the 
seller. 

The  construction  contended  for  by  the  defendant,  by  which  the 
actual  seller  should  exempt  himself  from  the  penalt}'  of  the  law,  by 
showing  that  he  sold  for  the  use  and  benefit,  and  b}-  the  authority,  of 
another  person,  would  let  in  all  the  mischiefs  intended  to  be  prevented 
by  the  statute.  A  person  residing  out  of  the  State,  and  beyond  the 
jurisdiction  of  its  laws,  b3'  taking  the  lease  of  shops,  and  emplo3'ing 
selling  agents  and  barkeepers,  might  wholly'  defeat  the  salutary  objects 
of  the  law. 

It  is  then  urged,  secondly,  as  an  excuse  for  the  defendant,  that  he 
offered  to  show  that  he  was  a  hired  agent,  having  no  interest  in  the 
profits,  and  acting  in  the  presence  of  and  under  the  control  of  his 
employer.  As  to  his  being  an  agent,  the  considerations  already  stated 
apply  to  it.  As  to  his  acting  in  the  presence  of  his  employer,  we  think 
that  circumstance  would  make  no  difference  if  the  defendant  was  the 
ostensible  actor  in  the  sale  ;  because  one  who  sells  for  another,  although 
in  his  presence,  does  3'et  sell,  and  the  law  fixes  the  penalty  upon  him 
who  does  the  act.  We  are  to  understand  in  the  present  case  that  the 
sale  was  actually  made  by  the  defendant,  otherwise  he  would  not  have 
been  convicted  by  the  jury.  If  the  employer  should  expressly  or  tacitly 
command,  direct,  or  instigate  him  to  do  it,  both  might  be  liable ;  for  it 
is  a  general  rule  of  law,  in  cases  of  tort,  that  when  two  or  more  are 
guilt}',  as  actors  or  participators,  of  one  and  the  same  offence,  each  is 
severally  liable  to  the  penalty,  and  either  may  be  severally  prosecuted 
for  it.  But  the  command  of  the  master  will  afford  no  justification  or 
excuse  to  the  servant  making  the  sale,  because  it  is  an  unlawful  com- 
mand, which  he  is  not  bound  to  obey,  and  for  the  doing  of  which  he 


SECT.  I.]  COMMONWEALTH   V.   HADLEY.  613 

can  have  no  indemnity  from  the  employer.  These  points  are  familiar, 
and  are  well  stated  in  the  authorities  citetl  in  the  argument.  Thus  it  is 
stated  in  1  Bl.  Com.  429,  430,  "  if  the  servant  commit  a  trespass  by  the 
command  or  encouragement  of  his  master,  the  master  shall  be  guilty 
of  it,  though  the  servant  is  not  thereby  excused,  for  he  is  only  to  obey 
his  master  in  matters  that  are  honest  and  lawful."  So  in  2  Dane  Ab. 
316,  "the  command  of  a  superior  to  an  inferior  to  commit  a  tort  ex- 
cuses the  latter  in  no  case  but  that  of  a  wife.  Such  inferior,  as  servant, 
is  bound  to  perform  only  the  lawful  commands  of  his  superior ;  and  the 
inferior  person  must  know,  too,  when  he  does  an  injury  ;  and  if  he  has 
to  pay  for  it,  he  has  no  remedy  against  his  master,  except  he  deceives 
him."     Perkins  v.  Smith,  Sayer,  40,  and  1  Wils.  328. 

Taken  in  connection  with  the  established  maxim  that  ignorance  of 
the  law  excuses  no  one  from  the  penalties  of  its  violation,  it  seems  to 
follow  as  a  necessary  consequence  that  a  salesman  or  barkeeper  cannot 
excuse  himself  by  showing  that  he  did  the  act  by  the  order  or  in  the 
presence  of  his  employer.  Whether  if  the  owner,  being  on  the  spot, 
should  direct  a  wife,  apprentice,  or  servant  to  draw  or  pour  out  the 
liquor,  or  to  deliver  it,  or  even  to  receive  payment  for  it,  the  subordi- 
nate would  be  liable,  is  a  question  which  we  are  not  called  upon  to 
decide,  and  which  must  depend  much  on  the  circumstances  of  particular 
cases.  It  might  give  rise  to  a  question  of  fact  whether  the  act  done  by 
the  subordinate  would  amount  to  an  actual  sale.  At  all  events,  the 
principal,  being  activeh'  and  ostensibly  engaged  in  the  transaction, 
would  be  unquestionably  amenable  to  the  law  ;  and  this  consideration 
would  render  the  question  of  the  liability  of  the  subordinate  of  less 
practical  importance  to  the  due  execution  of  the  law. 

But  where  one  acts  as  an  agent  under  a  general  authorit}'  to  sell 
for  account  of  another,  we  are  of  opinion  that  sales  of  liquor  made  b}' 
him  are  equally  opposed  to  the  letter  and  spirit  of  the  law  as  if  he 
were  selling  his  own  property,  on  his  own  account,  and  for  his  own 
profit. 

It  is  urged,  thirdly,  as  an  argument  against  this  view  of  the  law,  that 
if  correct,  everj^  barkeeper  and  salesman  must  himself  be  licensed,  or 
he  would  subject  himself  to  the  penalties  of  the  law,  which  could  not 
have  been  contemplated  by  the  legislature.  But  we  think  this  is  not  a 
sound  conclusion  from  the  premises.  An  innkeeper  or  retailer  has  a 
laiofid  authority  under  his  license  to  sell  spirituous  liquors,  under  cer- 
tain restrictions,  at  a  place  designated.  One  may  do  lawful  acts  by  an 
agent,  and  the  maxim  qui  facit  per  aliwn  facit  per  se  makes  them,  in 
legal  contemplation,  his  own  ;  and  his  license  will  authorize  him  to 
employ  persons  under  him,  and  will  be  their  justification.  This  right 
must,  of  course,  have  its  reasonable  limits.  We  do  not  mean  to  inti- 
mate that  one  can  make  a  general  assignment  of  his  license,  because 
the  law  contemplates  a  personal  trust,  but  that  he  may  authorize  others 
to  act  with  and  under  him  in  executing  the  powers  granted  to  him  by 
the  license.     All,  therefore,  that  an  agent  or  barkeeper  has  to  do,  in 


614  PEOPLE   V.   PARKS.  [CHAP.   X. 

order  to  secure  an  immunity  from  the  penalties  of  the  law,  is  not 
to  obtain  a  license  himself,  but  to  be  well  assured  that  his  employer 
has  one.^ 


PEOPLE  V.  PARKS. 
Supreme  Court  of  Michigan.     1882. 

[Reported  49  Michigan,  333  ] 

Campbell,  J.  Respondent  was  convicted  under  the  statute  of  1881, 
making  it  a  misdemeanor  to  sell  intoxicating  liquor  to  persons  who 
are  in  the  habit  of  becoming  intoxicated.  The  sale  was  not  made  by 
respondent,  but  by  a  clerk.  The  court  below  held  that  the  respondent 
was  responsible  for  the  knowledge  of  his  clerk,  as  well  as  if  he  had 
known  the  condition  of  the  vendee  himself. 

The  statute  in  question  prohibits  sales  by  means  of  clerks  as  well  as 
in  person.  Laws  1881,  p.  355,  s.  12.  And  a  subsequent  section  (13) 
makes  violations  of  the  statute  misdemeanors,  and  punishable  as  such. 
But  it  would  be  an  unjust  and  inadmissible  interpretation  to  construe 
such  a  provision  as  covering  anything  but  an  act  in  which  the  will  of 
the  respondent  concurred  in  the  sale.  It  is  contrar}-  to  ever}'  rule  of 
law  to  hold  a  person  criminall}'  responsible  for  an  act  in  which  he  has 
taken  no  part.  He  can  only  be  punished  for  what  is  his  own  wrong. 
Section  2  clearly  implies  the  necessity  of  criminal  intent  as  an  element 
of  the  offence,  and  lays  down  certain  rules  of  presumption  involving 
personal  knowledge  of  the  act  done.  It  makes  the  act  of  sale  to  an 
improper  person  presumptive  evidence  of  such  intent  to  violate  the 
law.  The  case  comes  within  the  decision  in  Faulks  v.  People,  39  Mich. 
200.  It  cannot  be  permissible  to  give  an}'  other  construction,  which 
would  violate  the  elementar}'  rules  of  criminal  responsibility. 

Whatever  civil  liability  may  arise  from  the  acts  of  a  clerk,  the  crim- 
inal responsibility  must  fall  on  the  actual  wrong-doers,  who  have  done 
or  been  connected  with  the  violation  of  the  law  bj"  some  fault  of  their 
own. 

The  conviction  should  be  set  aside  and  the  case  dismissed. 

The  other  justices  concurred.'^ 

^  Part  of  the  opinion,  relating  to  another  objection,  is  omitted. 
See  ace.  State  v.  Bell,  5  Porter,  36.5;  Com.  v.  Drew,  3  CusL  279;  State  v.  Bugbee, 
22  Vt.  32.  —  Ed. 

*  But  see  People  i-.  Roby,  52  Mich.  577.  —  Ed. 


SECT.  I.]  EEGINA   V.    TYRRELL.  615 

REGINA  V.  TYRRELL. 

Court  for  Crown  Cases  Reserved.     1893. 

[Reported  1894,  1  Q,  B.  710.] 

Case  reserved  by  Mr.  Commissioner  Kerr. 

The  defendant,  Jane  T3Trell,  was  on  September  L5,  1893.  tried  and 
convicted  at  the  Central  Criminal  Court  on  an  indictment  charging  her, 
in  the  first  count,  with  having  unlawful!}-  aided  and  abetted,  counselled, 
and  procured  the  commission  by  one  Thomas  Ford  of  the  misdemeanor 
of  having  unlawful  carnal  knowledge  of  her  whilst  she  was  between  the 
ages  of  thirteen  and  sixteen,  against  the  form  of  the  statute,  etc. ;  and, 
in  the  second  count,  with  having  falsely,  wickedly,  and  unlawfully  so- 
licited and  incited  Thomas  Ford  to  commit  the  same  offence. 

It  was  proved  at  the  trial  that  the  defendant  did  aid,  abet,  solicit, 
and  incite  Thomas  Ford  to  commit  the  misdemeanor  made  punishable 
bv  s.  5  of  the  Criminal  Law  Amendment  Act,  1885  (48  &  49  Vict. 
c^  69). 

The  question  for  the  opinion  of  the  Court  was,  "Whether  it  is  an 
offence  for  a  girl  between  the  ages  of  thirteen  and  sixteen  to  aid  and 
abet  a  male  person  in  the  commission  of  the  misdemeanor  of  having 
unlawful  carnal  connection  witli  her,  or  to  solicit  and  incite  a  male 
person  to  commit  that  misdemeanor." 

Lord  Coleridge,  C.  J.  The  Criminal  Law  Amendment  Act,  1885, 
was  passed  for  the  purpose  of  protecting  women  and  girls  against 
themselves.  At  the  time  it  was  passed  there  was  a  discussion  as  to 
what  point  should  be  fixed  as  the  age  of  consent.  That  discussion 
ended  in  a  compromise,  and  the  age  of  consent  was  fixed  at  sixteen. 
With  the  object  of  protecting  women  and  girls  against  themselves  the 
Act  of  Parliament  has  made  illicit  connection  with  a  girl  under  that 
age  unlawful ;  if  a  man  wishes  to  have  such  illicit  connection  he  must 
wait  until  the  girl  is  sixteen,  otherwise  he  breaks  the  law  ;  but  it  is 
impossible  to  say  that  the  Act,  which  is  absolutely  silent  about  aiding 
or  abetting,  or  soliciting  or  inciting,  can  have  intended  that  the  girls 
for  whose  protection  it  was  passed  should  be  punishable  under  it  for 
the  offences  committed  upon  themselves.  I  am  of  opinion  that  this 
conviction  ought  to  be  quashed. 

Mathew,  J.  I  am  of  the  same  opinion.  I  do  not  see  how  it  would 
be  possible  to  obtain  convictions  under  the  statute  if  the  contention  for 
the  Crown  were  adopted,  because  nearly  every  section  which  deals 
with  offences  in  respect  of  women  and  girls  would  create  an  offence  in 
the  woman  or  girl.  Such  a  result  cannot  have  been  intended  by  the 
legislature.  There  is  no  trace  in  the  statute  of  any  intention  to  treat 
the  woman  or  girl  as  criminal. 

Grantham,  Lawrance,  and  Collins,  JJ.,  concurred. 

Conviction  quashed. 


G16  COxMMONWEALTH  V.  WILLARD.  [CHAP.   X. 


COMMONWEALTH  v.   WILLARD. 

Supreme  Judicial  Court  of  Massachusetts.    1839. 

[Reported  22  Pick.  476.] 

This  was  a  writ  of  habeas  corpus  to  the  sheriff  of  this  count}',  to 
bring  before  the  Court  the  body  of  George  W.  Richardson. 

It  appeared,  that  Richardson  was  summoned  as  a  witness  before  the 
grand  jury  for  the  purpose  of  proving  that  one  Gould  had  sold  to  him 
spirituous  liquors,  in  violation  of  St.  1838,  c.  157,  §  1  ;  that  he  re- 
fused to  testify  on  the  ground  that,  as  such  sale  was  made  a  misde- 
meanor by  the  statute,  his  testimony  might  criminate  himself  and 
subject  him,  as  the  purchaser,  to  prosecution  at  common  law  for 
inducing  Gould  to  commit  a  misdemeanor ;  and  that  he  was  thereupon 
committed  to  prison  by  order  of  ihe  Court  of  Common  Pleas  for 
contempt. 

Shaw,  C.  J.^  .  .  .  The  witness  objected  to  testifying  on  the  ground 
that  as  the  selling  of  spirituous  liquors,  without  being  a  physician  or 
apothecary  licensed  for  that  purpose,  was  made  a  misdemeanor  by 
the  statute,  to  purchase  of  such  person  necessarily  implied  an  induce- 
ment held  out  to  commit  such  misdemeanor,  and  that  to  induce  another 
to  commit  a  misdemeanor  Is  an  offence  punishable  at  common  law,  to 
which  the  witness  would  be  exposed.  But  the  Court  are  of  opinion 
that  the  witness  would  not  be  liable  to  any  prosecution  as  such  pur- 
chaser, and  therefore  would  not  criminate  himself  or  expose  himself  to 
punishment  by  such  a  purchase.  No  precedent  and  no  authority  has 
been  shown  for  such  a  prosecution,  and  no  such  prosecution  has  been 
attempted  within  the  knowledge  of  the  Court,  although  a  similar  law 
has  been  in  force  almost  from  the  foundation  of  the  government,  and 
thousands  of  prosecutions  and  convictions  of  sellers  have  been  had 
under  it,  most  of  which  have  been  sustained  by  the  testimony  of  buyers. 
That  such  a  prosecution  is  unprecedented,  shows  very  strongly  what 
has  been  understood  to  be  the  law  upon  this  subject. 

It  is  difficult  to  draw  any  precise  line  of  distinction  between  the 
cases  in  which  the  law  holds  it  a  misdemeanor  to  counsel,  entice,  or 
induce  another  to  commit  a  crime,  and  where  it  does  not.  In  general, 
it  has  been  considered  as  applying  to  cases  of  felon}-,  though  it  has 
been  held  that  it  does  not  depend  upon  the  mere  legal  and  technical 
distinction  between  felony  and  misdemeanor.  One  consideration,  how- 
ever, is  manifest  in  all  the  cases,  and  that  is,  that  the  offence  proposed 
to  be  committed  by  the  counsel,  advice  or  enticement  of  another,  is  of 
a  high  and  aggravated  character,  tending  to  breaches  of  the  peace  or 
other  great  disorder  and  violence,  being  what  are  usually  considered 
mala  in  se  or  criminal  in  themselves,  in  contradistinction   to    mala 

1  Part  of  the  opinion  is  omitted.  — Ed. 


SECT.  I.]  COMMONWEALTH   V.  WILLARD.  617 

prohihita,  or  acts  otherwise  indifferent  than  as  they  are  restrained  by 
positive  law.  All  the  cases  cited  in  support  of  the  objection  of  the 
witness  are  of  this  description. 

Rex  V.  Higgins,  2  East,  5,  was  a  case  where  the  accused  had  so- 
licited a  servant  to  steal  his  master's  goods,  and  it  was  held  to  be 
a  misdemeanoi-.  The  crime,  if  committed  pursuant  to  such  solicitation, 
would  have  been  a  felony. 

Rex  V.  Phillips,  6  East,  464,  was  a  manifest  attempt  to  provoke 
another  person  by  a  letter  to  send  a  challenge  to  fight  a  duel.  For 
although  the  direct  purpose  of  the  letter  of  the  defendant  was  to 
induce  the  other  party  to  send  a  challenge,  which  is  technically  a  mis- 
demeanor, yet  the  real  object  was  to  bring  about  a  deed,  which  is  a 
high  and  aggravated  breach  of  the  public  peace,  and  where  it  results 
in  the  death  of  either  party,  is  clearly  murder.  It  was  averred  to  be 
done  with  an  intent  to  do  the  party  bodily  harm  and  to  break  the 
king's  peace,  and  such  intent  was  considered  a  material  fact  to  be 
averred  and  proved. 

A  case  depending  upon  a  similar  principle  in  our  own  books  is  that 
of  Commonwealth  v.  Harrington,  3  Pick.  26,  in  which  it  was  held 
that  to  let  a  house  to  another,  with  an  intent  that  it  should  be  used 
and  occupied  for  the  purpose  of  prostitution,  with  the  fact  that  it  was 
so  used,  was  a  misdemeanor.  The  keeping  of  such  a  disorderly  house 
has  long  been  considered  a  high  and  aggravated  offence,  criminal  in 
itself,  tending  to  general  disorder,  breaches  of  the  public  peace,  and  of 
common  nuisance  to  the  community.  .  It  is  in  cases  of  this  character 
onl}',  that  the  principle  has  been  applied  ;  but  we  know  of  no  case, 
where  an  act,  which,  previously  to  the  statute,  was  lawful  or  indifferent, 
is  prohibited  under  a  small  specific  penalt}',  and  where  the  soliciting  or 
inducing  another  to  do  the  act,  by  which  he  may  incur  the  penalty,  is 
held  to  be  itself  punishable.  Such  a  case  perhaps  may  arise,  under 
peculiar  circumstances,  in  which  the  principle  of  law,  which  in  itself  is 
a  highly  salutary  one,  will  apply  ;  but  the  Court  are  all  of  opinion 
that  it  does  not  apply  to  the  case  of  one  who,  by  purchasing  spirituous 
liquor  of  an  unhcensed  person,  does,  as  far  as  that  act  extends,  induce 
that  other  to  sell  in  violation  of  the  statute. 

There  is  another  view  of  the  subject  which  we  think  has  an  im- 
portant bearing  on  the  question,  if  it  is  not  indeed  decisive.  The 
statute  imposes  a  penalty  upon  any  person  who  shall  sell.  But  every 
sale  implies  a  purchaser;  there  must  be  a  purchaser  as  well  as  a  seller, 
and  this  must  have  been  known  and  understood  by  the  legislature. 
Now,  if  it  were  intended  that  the  purchaser  should  be  subject  to  any 
penalty,  it  is  to  be  presumed  that  it  would  have  been  declared  in  the 
statute,  either  by  imposing  a  penalty  on  the  buyer  in  terms,  or  by  ex- 
tending the  penal  consequences  of  the  prohibited  act,  to  all  persons 
aiding,  counselling,  or  encouraging  the  principal  offender.  There  being 
no  such  provision  in  the  statute,  there  is  a  strong  implication  that 
none  such  was  intended  by  the  legislature. 


618  COMMONWEALTH  V.   KOSTENBAUDER.  [CHAP.  X. 

Ordered,  that  the  prisoner  be  remanded  to  the  custody  of  the  sheriff 
to  abide  the  order  of  the  Court  of  Common  Pleas  under  which  he 
stands  committed. 


COMMONWEALTH   v.   KOSTENBAUDER. 

Supreme  Court  of  Pennsylvania.     1886. 

[Reported  20  Atlantic  Reporter,  995.] 

Certiorari  to  Court  of  Quarter  Sessions,  Lehigh  County. 

Kostenbauder,  Houck,  and  Schweitzer  induced  Boehmer,  a  saloon- 
keeper, to  give  them  liquor  on  Sundaj'.  Later  Boehmer  was  sued  for  a 
violation  of  the  law,  in  which  proceeding  Kostenbauder,  Houck,  and 
Schweitzer  appear  as  witnesses  against  him.  Boehmer,  then  alleging 
that  there  had  been  a  full  understanding  between  the  three  to  procure 
from  him  the  liquor  and  then  proceed  against  him  in  order  that  they 
might  get  the  share  coming  to  the  informer  in  such  cases,  made  an 
information  against  Kostenbauder,  Houck,  and  Schweitzer,  and  had 
them  arrested  for  conspiracy.  Upon  return  of  the  prosecution  to  the 
Court  of  Quarter  Sessions  an  indictment  was  drawn  and  presented  to 
the  grand  jur}',  which  returned  "a  true  bill,"  whereupon  the  defen- 
dants moved  to  quash  the  bill  of  indictment,  on  the  ground  that  it  did 
not  charge  an  indictable  offence.  The  court  held  that  no  indictable 
offence  was  charged,  and  quashed  the  indictment.  The  following  is  a 
cop3'  of  the  opinion  of  the  Quarter  Sessions  :  — 

"Albright,  P.J.  If  the  law  provided  for  the  punishment  of  the 
man  who,  on  Sunday,  buys  or  drinks,  at  a  licensed  public  house,  intox- 
icating liquor,  then  these  defendants  could  be  held  to  answer  this  indict- 
ment ;  but,  inasmuch  as  the  man  who  buys  or  drinks  the  liquor  is  not 
punishable,  therefore  the  defendants  cannot  be  held  liable  for  conspiracy 
to  procure  beer  on  Sunday  from  the  saloon-keepers  named  in  the  indict- 
ment. The  law  imposes  the  penalty  on  him  who  sells  liquor  on  Sun- 
day, or  who,  being  a  licensed  public-house  keeper,  permits  it  to  be 
drank  on  his  premises  on  that  da}-.  The  real  offence  charged  in  this 
indictment  is  the  conspiracy  by  these  three  defendants  to  induce  the 
saloon-keeper  to  sell  or  give  them  drinks  on  Sunday.  The  further  alle- 
gations, that  drink  was  obtained  ;  that  it  was  the  intention  of  getting 
the  informer's  share  of  the  penalties  ;  and  that  suits  were  brought  for 
the  penalties,  —  add  no  strength  to  the  charge.  It  was  not  unlawful 
to  accept  the  drink,  nor  to  sue  for  the  penalties.  Counsel  for  the  Com- 
monwealth and  for  defendants  agree  that  this  is,  in  point  of  law,  the 
correct  view  of  the  question.  It  is  impossible  to  hold  that  persons  are 
guilty  in  law  For  conspiring  to  do  an  act,  where  the  act  imputed  is  such 


SECT.  I.]  COMMONWEALTH   V.   KOSTENBAUDER.  619 

that  if  the  intention   had  been  consummated  no   offence  would  have 
been  committed.     It  is  not  alleged  that  the  defendants  by  furnishing 
a  stock  of  liquor,  or  by  any  other  means,  instigated  or  furthered  the 
illegal  act  of  selling  or  giving  away  on  Sunday,  nor  that  they  conspired 
by  forcjp  or  threats  to  coerce  the  saloon-keepers  to  sell.    The  latter  were 
free  agents.    They  sold  or  gave  away  the  beer  because  they  chose  to  do 
so.     Where  there  is  a  confederacy,  but  nothing  more  than  solicitations 
to  an    intelligent   free  agent   to  commit  a  crime,  it  is  not  indictable 
unless  it  is  made  so  by  statute.    2  Whart.  Crim.  Law  (8th  ed.),  §  2G91. 
Chief  Justice  Gibson,  in  Shannon  v.  Com.,   14  Pa.  226,  said  that  if 
confederacy  constituted  conspiracy,  without   regard  to  the  quality  of 
the  act  to  be  done,  a  party  might  incur  the  guilt  of  it  by  having  agreed 
to  be  the  passive  subject  of  a  battery.     Accordingly  these  defendants 
would  not  have  been  indictable  if  they  had  combined  and  agreed  to- 
gether to  go  to  the  prosecutor's  house  and  solicit  and  induce  him  to 
beat  them.     They  are  not  indictable  for  having  conspired   to   induce 
him  to  give  to  them  drinks  on  Sunday.    Counsel  for  the  Commonwealth 
rely  principally  upon  the  case  of  Hazen  v.  Com.,  23  Pa.  355.     It  is 
asserted  that  it  was  there  held  that  Hazen  and  three  others  had  been 
properly  convicted  upon  an    indictment  charging  that  they  had  con- 
spired to  solicit,  induce,  and  procure  the  officers  of  a  bank  to  violate  a 
statute  which  made  it  a  penal  offence  to  issue  notes  of  banks  of  other 
states,  of  a  denomination  less    than    five  dollars.      The    statute  gave 
the  informer  the  one-half  of  the  money  penalty.     But  the  counts  upon 
wliich  Hazen  and  his  co-defendants  were  convicted  charged  more  than 
the  mere  conspiracy  to  procure  the  bank  officers  to  issue  the  forbidden 
notes.     It  was  also  charged,  and  found,  that  one  of  them  had  depos- 
ited in  the  bank  large  sums  of  money,  not   for  lawful   business,  and 
drew  them  by  checks  for  unequal  sums,  and  required  the  checks  to  be 
paid  in  bank-notes  of  less  than  $5,  and  that  the  defendants  had  threat- 
ened to  bring  penal  actions  unless  they  were  paid  S3, 250  ;  that  it  was 
the  purpose  of  the  conspiracy  to  compel  the  bank  officers  unjustly  and 
unlawfully  to  pay  large  sums  of  money  for   the  corrupt  gain  of  the 
defendants.     The  Supreme  Court  said  that  they  were  left  to  infer  that 
such  '  large  sums  of  money'  were  to  be  obtained  by  some  other  means 
than    a  fair  prosecution  of  the  offending   bank  officers;  that  it  was 
charged  that  the  money  was  to  be  drawn  from  the  victimc  by  com- 
pounding tlie  off'ences ;  that  it  had  been  found  as  a  fact  that  the  object 
of  the  defendants  was  not  the  detection  and  suppression  of  crime,  but 
the  promotion  of  their  own  corrupt  gain  ;  that  the  defendants  sought 
to  extort  '  hush  money '  for  suppressing  the  evidence  of  guilt.     The 
court  also  said  that  those  who  induced  a  violation  of  the  law  for  the 
purpose  of  compounding  the  offe'nce  and  making   gain  by  defeating 
public  justice  were  guilty  of  a  gross  wrong.     In  this  case  it  is  not 
averred  that  the  defendants  offered  to  settle  or  compound  the  offences, 
nor  that  they  obtained  any  part  of  the  informer's  share  of  the  penal- 
ties, nor  even  that  the  suits  against  the  saloon-keepers  were  prosecuted 


620^  COMMONWEALTH   V.    KOSTENBAUDER.  [CHAP.  X. 

to  judgment.  In  that  reference  it  is  simply  alleged  that  the  defen- 
dants, and  others  acting  witli  them,  have  caused  writs  of  summons  to  be 
issued  by  the  aldermen  for  the  penalty  of  $50  in  each  case.  The  deci- 
sion of  the  question  presented  in  Hazen  v.  Com.  does  not  warrant  a 
ruling  that  this  indictment  can  be  sustained,  nor  has  any  authority  for 
such  a  conclusion  been  found.  The  motion  to  quash  must  be  sustained. 
If  counsel  for  the  Commonwealth  desire  to  obtain  the  decision  of  the 
Supreme  Court  upon  this  question,  it  is  probable  that  this  court,  upon 
application  of  the  district  attorney,  will  make  an  order  that  the  defen- 
dants be  held  under  bail  until  such  decision  has  been  obtained.  They 
are  now  under  recognizance  for  their  appearance  at  the  next  term. 
How,  December  26,  1885,  the  indictment  is  quashed ;  the  recognizance 
of  defendants  to  remain  in  force  unless  discharged  by  order  of  the 
court." 

J.  Marshall  Wright,  Dist.  Atty.,  Henninger  &  De  Walt,  and  £J.  J. 
Jjichtenwalner^  for  the  Commonwealth. 

John  C.  Merrill  and  Charles  R.  James,  for  Kostenbauder  and 
Houck. 

W.  J.  Stein,  for  Schweitzer. 

Per  Curiam.  The  judgment  of  the  court  below  is  affirmed  by  a 
divided  court. 


SECT.  II.]  MEMOKANDUM.  621 

SECTION   11. 

Innocent  Agents. 
MEMORANDUM. 

[Reported  Kelyng,  52.] 

My  Brother  Twisden  shewed  me  a  report  which  he  had  of  a  charge 
given  by  Justice  Jones  to  the  grand  jury  at  the  King's  Bench  Bar  in 
Michaehnas  Term,  9  Car.  I.,  in  which  he  said  that  poisoning  another 
was  murder  at  common  law.  And  the  statute  of  1  Ed.  VI.  was  but 
declaratory  of  the  common  law,  and  an  affirmation  of  it.  He  cited 
Vaux  and  Ridley's  Case.  If  one  drinks  poison  by  the  provocation  or 
persuasion  of  another,  and  dieth  of  it,  this  is  murder  in  the  person  that 
persuaded  it.  And  he  took  this  difference  :  If  A.  give  poison  to  J.  S. 
to  give  to  J.  D.,  and  J.  S.,  knowing  it  to  be  poison,  give  it  to  J.  D. 
who  taketh  it  in  the  absence  of  J.  S.  and  dieth  of  it,  in  this  case  J.  S. 
who  gave  it  to  J.  D.,  is  principal,  and  A.,  who  gave  the  poison  to  J.  S. 
and  was  absent  when  it  was  taken,  is  but  accessory  before  the  fact. 
But  if  A.  buyeth  poison  for  J.  S.,  and  J.  S.  in  the  absence  of  A.  taketh 
it,  and  dieth  of  it,  in  this  case  A.,  though  he  be  absent,  yet  he  is  prin- 
cipal. So  it  is  if  A.  giveth  poison  to  B.  to  give  unto  C,  and  B.,  not 
knowing  it  to  be  poison,  but  believing  it  to  be  a  good  medicine,  giveth 
it  to  C.  who  dieth  of  it;  in  this  case.  A.,  who  is  absent,  is  principal, 
or  else  a  man  should  be  murdered  and  there  should  be  no  principal. 
For  B.,  who  knew  nothing  of  the  poison  is  in  no  fault,  though  he  gave 
it  to  C.  So  if  A.  puts  a  sword  into  the  hand  of  a  madman,  and  bids 
him  kill  B.  with  it,  and  then  A.  goeth  away,  and  the  madman  kills  B. 
with  the  sword  as  A.  commanded  him,  this  is  murder  in  A.  though 
absent,  and  he  is  principal ;  for  it  is  no  crime  in  the  madman  who  did 
the  fact,  by  reason  of  his  madness.  And  he  said  this  case  was  lately 
before  himself  and  Baron  Trevor  at  the  Assizes  at  Hereford.  A  woman 
after  she  had  two  daughters  by  her  husband,  eloped  from  him  and  lived 
with  another  man.  And  afterwards  one  of  her  daughters  came  to 
her,  and  she  asked  her  how  doth  your  father,  to  which  her  daughter 
answered,  that  he  had  a  cold,  to  which  his  wife  replied,  here  is  a  good 
powder  for  him,  give  it  him  in  his  posset ;  and  on  this  the  daughter 
carried  home  the  powder,  and  told  all  this  that  her  mother  had  said  to 
her,  and  to  her  other  sister,  who  in  her  absence  gave  the  powder  to 
her  father  in  his  posset,  of  which  he  died.  And  he  said  that,  upon 
conference  with  all  the  judges,  it  was  resolved  that  the  wife  was  prin- 
cipal in  the  murder,  and  also  the  man  with  whom  she  ran  away,  he 
being  proved  to  be  advising  in  the  poison  ;  but  the  two  daughters  were 
in  no  fault,  they  both  being  ignorant  of  the  poison.  And  accordingly, 
the  man  was  hanged,  and  the  mother  burnt. 


622  KEGIXA  V,   BAXNEN.  [CHAP.  X. 


REGINA   V.  BANNEN. 
Crown  Case  Reserved.     1844. 

[Reported  2  Moody,  309] 

The  prisoner  was  tried  before  Mr.  Baron  Gurnet,  at  the  Spring 
Assizes  for  the  county  of  Warwick,  1844,  on  an  indictment  for  feloni- 
ously making  a  die,  which  would  impress  the  figure,  stamp,  and 
apparent  resemblance  of  the  obverse  side  of  a  shilling. 

Second  count,  for  feloniously  beginning  to  make  such  a  die. 

Third  count,  for  feloniously  making  a  die  which  was  intended  to 
impress  the  figure,  stamp,  and  apparent  resemblance  of  the  obverse 
side  of  a  shilling. 

It  was  proved  by  Charles  Frederick  Carter,  a  die-sinker  at  Birming- 
ham, that  the  prisoner  applied  to  him  to  sink  two  dies  for  counters  for 
two  whist  clubs,  one  at  Exeter  and  the  other  at  Blandford,  stating 
that  it  was  their  practice  to  play  with  counters  with  one  side  resem- 
bling coins,  and  that  they  wished  to  have  counters  stamped  by  dies, 
to  be  made  in  pursuance  of  the  following  directions  :  — 

Four  dies  for  whist  counters  ;  obverse,  head  of  Queen  Victoria,  as  in 
the  shilling  coin ;  reverse,  Blandford  whist  club,  established  1800. 
Obverse,  one  shilling,  as  in  coin,  with  wreath,  etc. ;  reverse,  Exeter 
whist  club,  established  in  1800.  The  obverse  to  be  as  much  a  fac-siynile 
as  can  be  ;  the  letters  on  the  reverse  to  vary  in  size  ;  all  the  dies  to  be 
the  same  size,  and  fit  either  collar. 

When  Mr.  Carter  considered  these  directions,  it  occurred  to  him  that 
there  was  something  very  suspicious  in  them,  and  he  applied  to  the 
agent  of  the  mint  at  Birmingham,  and  communicated  the  order  to  him. 
The  agent  sent  to  the  officers  of  the  mint  in  London  for  instructions, 
and  Mr.  Carter  was  by  them  directed  to  execute  the  prisoner's  order. 
He  proceeded ;  a  long  correspondence  took  place  on  account  of  the 
work  not  being  executed  within  the  time  expected.  In  the  course  of 
the  correspondence,  the  prisoner  desired  to  have  the  obverse  of  one  of 
the  pieces  and  the  obverse  of  the  other  finished  first,  and  they  were 
so.  When  they  were  finished,  they  formed  a  die  for  the  coining  of  a 
shilling,  and  an  impression  made  by  the  dies  was  produced  in  court. 

Mr.  Serjt.  Adams,  for  the  prisoner,  objected  that  the  prisoner  could 
not  be  convicted,  as  he  had  not  himself  done  anything  in  the  construc- 
tion of  the  die,  and  that  he  was  not  answerable  in  this  form  of  charge 
for  the  act  of  Carter ;  that  Carter  having  acted  under  the  instructions 
of  the  mint,  no  felony  whatever  had  been  committed  ;  and  that  the 
prisoner  should  have  been  indicted  for  a  misdemeanor,  in  inciting 
Carter  to  commit  a  felony. 

The  learned  judge  reserved  the  point  for  the  opinion  of  the  judges. 
The  jury  found  the  prisoner  guilty. 


SECT.  II.]  REGINA  V.    BAXNEN.  623 

This  case  was  argued  in  Easter  term,  18-44,  before  all  the  judges 
except  Coleridge,  J.,  and  Maule,  J. 

Whitehurst,  for  the  prisoner.  The  prisoner  did  not  commit  the  offence 
as  charged  in  the  indictment.  The  statute  2  W.  IV.,  c.  34,  s.  10,  enacts 
that  "  if  any  person  shall  knowingly  and  without  lawful  authority  (the 
proof  of  which  authority  shall  lie  on  the  party  accused)  make,  &c.,  or 
begin  to  make,  any  puncheon,  &c.,die,  &c.,such  person  shall  be  guilty 
of  felony."  Here  no  person  lias  without  lawful  authority  made  or  begun 
to  make  a  die.  The  only  person  who  has  in  fact  made  or  begun  to 
make  a  die  is  Carter.  Before  Carter  begins,  he  applies  to  the  mint. 
He  must  be  taken  to  have  known  the  law,  and  applies  to  get  their 
authority  to  proceed.  The  officers  of  the  mint  gave  him  orders  to  pro- 
ceed ;  he  therefore  had  lawful  authority.  If  they  had  power  to  give 
the  authority,  then  there  was  no  offence.  If  they  had  not,  then  Carter 
is  guilty  of  the  felony  as  a  principal,  and  the  prisoner  ought  to  have 
been  indicted  as  an  accessory  before  the  fact.  If  Carter  was  innocent, 
the  prisoner  could  not  be  an  accessory,  nor  could  he  be  a  principal ;  he 
is  not  present ;  and  if  another  does  the  act  for  him  in  his  absence,  that 
person  must  be  altogether  innocent ;  to  be  innocent  he  must  be  igno- 
rant of  any  wrong  in  what  he  is  doing.  Suppose  a  person  knowingly 
employs  an  ignorant  agent  to  deliver  a  forged  note  ;  the  delivery  is 
his,  because  the  agent  is  ignorant ;  so  if  a  person  employs  an  ignor- 
ant agent  to  administer  poison,  that  person  may  be  said  himself  to 
administer.  Carter  here  cannot  be  said  to  be  ignorant.  He  knows 
the  use  to  which  the  dies  are  applicable  and  the  guilty  purpose  for  which 
they  were  intended  by  the  prisoner.  The  dies  are  also  made  with  the 
knowledge  of  the  mint.  For  these  reasons  Carter  cannot  be  said  to 
be  a  mere  ignorant  agent  of  the  prisoner,  and  therefore  the  prisoner 
cannot  be  a  principal  felon, 

Waddington,  for  the  Crown.  There  is  no  doubt  that,  if  Carter  was 
guilty  of  felony,  this  indictment  fails.  But  it  is  impossible  to  contend 
that  ou  these  facts  Carter  was  a  felon.  Perhaps,  strictly  speaking,  no 
one  could  have  lawful  authority  to  make  coining  instruments  ;  certainly 
not,  if  Carter  had  not. 

[TiXDAL,  C.  J.  The  "  having  lawful  authority"  applies  to  the  officers 
and  servants  of  the  mint.] 

It  is  agreed  that  in  one  sense  he  did  the  act  knowingly  ;  but  mere 
knowledge  is  not  enough.  The  statute  means  guilty  knowledge  ;  and 
that  is  the  distinction  clearly  pointed  out  in  Foster's  "Discourse  on 
Accomplices,"  p.  349,  etc.  To  be  a  felon  there  must  be  a  guilty  knowl- 
edge. The  cases  of  the  child  or  madman  are  well  established.  Xow 
Carter  certainly  knew  what  he  was  doing,  but  had  no  intention  of  any 
felony  or  furthering  a  felony  ;  and  the  authority  and  knowledge  of  the 
mint  would  be  clearly  sufficient  to  make  his  knowledge  innocent. 

In  Rex  V.  Palmer  and  Hudson,  Russ.  &  Ry.  72,  which  is  reported 
with  the  judgment  delivered  by  Rooke.  J..  1  B.  &  P.  New  Rep.  97, 
this  distinction  is  carried  out,  and  the  case  put  of  an  uttering  a  forged 


624 


KEX   V.    BINGLEY  [CIIAP.  X. 


note  by  means  of  an  agent  ignorant  of  the  forgery  is  stated  to  be  law. 
This  has  since  been  held  to  be  law  in  Rex  v.  Giles,  1  Moody  C.  C.  R. 
166.  The  agent  must  be  an  innocent  agent.  The  cases  all  turn  on 
the  distinction  of  innocent  knowledge  or  guilty  knowledge.  Carter 
was  clearly  an  innocent  agent,  and  the  prisoner  was  therefore  the 

principal. 

Whitehurst,  in  reply.  Here  Carter,  the  agent,  in  fact  does  nothing 
at  all  until  he  has  the  orders  of  the  mint.  He  is,  throughout,  the  agent 
of  the  mint,  not  of  the  prisoner. 

All  the  judges  present,  except  Cress  well,  J.,  thought  Carter  an 
innocent  agent,  and  held  the  conviction  good.^ 


SECTION   III. 

Joint  Principals. 

REX  V.  BINGLEY. 
Crown  Case  Reserved.     1821. 

[Reported  Russell  §•  Ryan,  446.] 

The  three  prisoners  were  tried  and  convicted  before  Mr.  Justice 
Richardson,  at  the  Lent  assizes  for  the  county  of  Warwick,  in  the 
year  1821,  on  an  indictment  the  first  count  of  which  charged  the 
prisoners  with  forging  and  counterfeiting  a  £5  bank  note,  with  intent 
to  defraud  the  Governor  and  Company  of  the  Bank  of  England.  The 
third  count  charged  them  with  falsely  making,  forging,  and  counter- 
feiting, and  causing  and  procuring  to  be  falsely  made,  forged,  and 
counterfeited,  and  willingly  acting  and  assisting  in  the  false  making, 
forging,  and  counterfeiting,  a  promissory  note,  for  the  payment  of 
money,  with  the  like  intent.  There  were  other  counts  for  disposing 
of,  and  putting  away  scienter,  &c. 

It  appeared  in  evidence  that  Bingley  and  Button,  and  one  George 
Peacock,  an  accomplice,  agreed  to  take,  and  did  take  a  house  in  Bir- 
mingham, for  the  purpose  of  carrying  on  therein  the  manufacture  of 
forged  bank  notes.  The  first  operation  was  the  purchasing  of  proper 
paper,  and  the  cutting  of  it  into  pieces  of  proper  size ;  after  which  it 
was  taken  to  the  prisoner  Batkin,  a  copper- plate  printer,  whose  work- 
shop was  in  a  different  part  of  Birmingham,  to  be  by  him  printed,  and 
he  accordingly  struck  oflT  in  blank  all  the  printed  part  of  the  notes, 

1  See  ace.  Reg.  v.  Clifford,  2  C.  &  K.  202;  Reg.  v.  Bleasdale,  2  C.  &  K.  765;  Gregory 
V.  State,  26  Ohio  St.  510 ;  State  v.  Learnard,  41  Vt.  585.  And  see  William.son  v.  State, 
16  Ala.  431;  Com.  v.  Hill,  145  Mass.  305.  —  Ed, 


SECT.  III.]  KEX   V.   BINGLEY.  625 

except  the  date  line  and  the  number.  He  also  impressed  on  the  paper 
the  wavy  horizontal  lines. 

The  blanks  were  then  brought  back  to  tbe  house  of  Bingley,  Dutton, 
&  Peacock,  and  there  the  water  mark  was  introduced  into  the  paper ; 
after  which  Bingle}',  in  the  presence  of  Dutton  and  Peacock,  impressed 
the  date  line  and  the  number,  and  Dutton  added  the  signature. 

Sometimes  the  date  line  and  number  were  inserted  before  the  signa- 
ture was  inserted,  and  sometimes  the  signature  before  the  date  line 
and  number ;  but  in  a  certain  class  of  notes  (of  which  the  note  in  the 
indictment  was  one)  the  accomplice  said  that  the  signature  was  added 
last. 

The  notes  were  then  complete,  although  they  underwent  another 
operation,  that  of  pressing  them  between  plain  sheets  of  tin,  in  order 
to  make  the  surface  smooth,  before  they  were  put  into  circulation. 

Peacock,  the  accomplice,  did  not  know  that  Batkin  was  employed  to 
print  the  blank  notes,  nor  did  it  appear  that  Batkin  ever  was  present 
when  Bingley  and  Dutton  filled  up  and  completed  the  notes. 

The  accomplice  stated  that  Bingley  and  Dutton  were  both  present 
when  Bingley  impressed  the  date  line  and  number  on  that  class  of 
notes  of  which  the  note  stated  in  the  indictment  was  one,  but  he  said 
he  was  not  certain  whether  Bingley  was  present  when  Dutton  after- 
wards added  the  signature  to  the  class  of  notes. 

The  prosecutors  elected  to  proceed  on  the  counts  for  forging. 

Upon  this  evidence  the  learned  judge  left  it  to  the  jury  whether 
the  three  prisoners  did  concur  and  co-operate  in  the  joint  design  of 
forging  the  five-pound  note  mentioned  in  the  indictment  (among  other 
notes)  with  intent  to  put  it  into  circulation,  and  whether  the}-  all  did 
perform  their  respective  part  in  the  execution  of  that  design  within 
the  county  of  Warwick.  If  so,  the  learned  judge  advised  them  to  find 
them  all  guilty  of  the  forgery. 

The  learned  judge  furtlier  directed  them  to  find  whether  the  two 
prisoners,  Bingley  and  Dutton,  were  present  when  the  note  mentioned 
in  the  indictment  was  completed  by  adding  the  date  line  and  the 
signature. 

The  jury  found  that  all  three  concurred  and  co-operated  in  the  de- 
sign and  execution  of  the  forgery,  each  taking  his  own  part,  witliin 
the  county.  They  also  found  that  Bingley  and  Dutton  acted  together 
in  completing  the  notes,  and  therefore  found  all  three  guilty  on  the 
counts  for  forging. 

The  learned  judge  passed  sentence  on  the  prisoners ;  but  respited 
their  execution,  in  order  to  submit  to  the  judges  the  following  ques- 
tions :  — 

First,  Do  the  acts  of  parliament  which  relate  to  the  forging,  &c., 
and  causing  to  be  forged,  &c.,  and  acting  and  assisting  in  the  forging, 
&c.,  of  promissory  notes  apply  to  Bank  of  England  notes,  which, 
although  the}'  are  undoubtedly  promissory  notes,  are  the  subject  of 
distinct  legislative  provisions  ? 


626  COMMOXWZALTH   V.   LOWKEY.  [CHAP.  X. 

Secondly..  Upon  the  evidence  and  the  finding  of  the  jury,  was  this 
a  joint  offence  of  forging  iu  the  three  prisoners,  or  at  least  in  the  two 
prisoners,  Bingley  and  Button?^ 

In  Easter  term,  1821,  the  judges  met  and  considered  this  case.  They 
held  that  the  conviction  was  right  as  to  all  the  prisoners :  the  judges 
were  of  opinion  that,  as  each  of  the  prisoners  acted  in  completing 
some  part  of  the  forgery,  and  in  pursuance  of  the  common  plan,  each 
was  a  principal  in  the  forgery ;  and  that  although  the  prisoner  Batkin 
was  not  present  when  the  note  was  completed  by  the  signature,  he 
was  equally  guilty  with  the  others. 


COMMONWEALTH   v.   LOWREY. 

Supreme  Judicial  Court  of  Massachusetts.     1893. 

[Reported  158  Mass.  18.] 

Holmes,  J.^  The  main  question  for  us  is  whether  there  was  any 
evidence  of  a  criminal  breaking  and  entering.  The  jury  were  warranted 
in  finding  that,  iu  pursuance  of  a  preconcerted  scheme,  the  defendant 
Johnson,  making  a  pretence  of  a  wish  to  purchase  an  article,  got  the 
night  clerk  of  the  Theodore  Metcalf  Company  to  let  him  into  the  com- 
pany's shop  at  about  midnight ;  that  while  the  night  clerk  was  in  the 
cellar  getting  the  article,  Johnson  unbolted  the  door  which  had  been 
rebolted  behind  him  after  his  admission,  and  let  in  the  defendant 
Lowrey,  who  concealed  himself  and  remained  behind  when  Johnson 
left,  and  afterwards  broke  open  the  draw,  etc.  The  court  seems  to 
have  required  the  juiy  to  find  that  Lowrey  opened  the  door  as  a  con- 
dition to  their  finding  him  guilty. 

It  was  not  necessary  that  Lowre\-  should  have  touched  the  door  if  he 
procured  himself  to  be  let  in  b}'  an  accomplice  and  entered  with  feloni- 
ous intent.  He  might  have  been  convicted,  even  if  the  hand  which  he 
made  use  of  was  innocent,  as  in  case  of  a  servant  or  constable.  Le 
Mott's  case,  J.  Kel.  42  ;  Farre  &  Chadwick's  case,  J.  Kel.  43  ;  Cassy 
&  Cotter's  case,  J.  Kel.  62  :  Hawkins's  case,  2  East  P.  C.  485  ;  Hol- 
land V.  Commonwealth,  82  Penn.  St.  306,  323  ;  Johnston  i*.  Common- 
wealth.  85  Penn.  St.  54,  64  ;  State  v.  Rowe,  98  N.  C.  629  ;  State  v. 
Johnson,  Phil.  (X.  C.)  186 ;  Nicholls  v.  State,  68  Wis.  416,  421,  422  ; 
Clarke  v.  Commonwealth,  25  Gmt.  908,  913.  The  accomplice  inside 
the  house  is  guilty  of  the  same  offence.  Cornwall's  case,  2  Strange, 
881;  1  Hale,  P.  C.  553;  4  Bl.  Com.  227;  Rex  v.  Jordan,  7  C.  «fc  P. 
432  ;  Cooper  v.  State,  69  Ga.  761  ;  Ray  v.  State,  66  Ala.  281,  282  ; 
Breese  v.  State,  12  Ohio  St.  146. 

The  argument  for  the  defendants  assumes  that  the  door  was  not  even 
latched,  and  speaks  of  the  defendants  as  having  been  invited  into  the 

1  Part  of  the  opinion  is  omitted.  —  En 


SECT.  IV.]  EEX   V.    SKERRIT.  627 

shop.  In  fact,  the  door  would  seem  to  have  been  bolted,  and  if  there 
can  be  said  to  be  any  invitation  to  enter  a  closed  and  bolted  sliop  at 
midnight,  the  invitation  does  not  extend  to  thieves  when  let  in  by  their 
accompUces. 


SECTION  IV. 

Principah  in  the  Second  Degree. 

ANONYMOUS. 

Exchequer  Chamber. 
■  [Reported  Y.  B.  13  Hen.  VII.  10,  pi  7.] 

A  WOMAN  brought  an  appeal  for  the  death  of  her  husband  against 
two,  and  alleged  that  one  of  the  appellees  held  her  husband  and  com- 
manded the  other  to  kill  him,  by  reason  of  which  the  other  struck  him 
to  the  heart  so  that  he  died  at  once. 

And  it  was  held  b}-  all  the  justices  in  the  Exchequer  Chamber  that 
both  are  principals,  because  both  are  parties  to  the  blow.      Quod  nota. 


EEX  V.    SKERRIT. 

Berkshire  Assizes.     1S26. 
{Reported  2  C.^  P.  427.] 

The  prisoners  were  jointly  indicted  for  uttering  a  counterfeit  shilling 
having  another  counterfeit  shilling  in  their  possession. 

It  was  proved  that  the  prisoner,  Eliza  Skerrit,  went  into  the  shop  of 
James  George,  and  there  purchased  a  loaf,  for  which  she  tendered  a 
counterfeit  shilling  in  payment;  he  secured  her,  but  no  more  counter- 
feit money  was  found  on  her.  The  other  prisoner,  who  had  come  with 
her,  and  was  waiting  at  the  shop-door,  then  ran  awa}',  but  was  imme- 
diately secured,  and  fourteen  other  bad  shillings  were  found  on  her, 
wrapped  in  gauze  paper. ^ 

Carr'mgton,  for  the  prisoners,  objected,  2dl3',  that  the  complete 
offence  was  not  proved  against  either  of  the  prisoners  ;  as  the  one  who 
uttered  the  piece  of  mone}-  had  no  other  counterfeit  coin  in  her  posses- 
sion, and  the  other  who  had  the  coin,  was  not  guilty  of  any  uttering.  It 
might  be  said  that  the  one  who  stayed  outside  the  shop  was  guilty  of 
a  joint  uttering  with  the  other  who  was  in  it ;  like  the  case  of  two 
thieves,  one  inside  the  shop  and  the  other  outside  ;  but  the  case  of  the 

^  Only  so  much  of  the  case  as  discusses  the  joint  uttering  is  given.  — Ed. 


628  COMMONWEALTH   V.    KNAPP.  [CHAP.  X. 

thieves  differed  from  the  present  in  this  respect,  viz.  that  the  thief  outside 
might  be  there  to  co-operate  by  the  removal  of  the  stolen  property  or 
the  like.  Now  the  prisoner,  Priscilla  Skerrit,  hy  staying  outside  the 
shop,  could  not  by  possibility  be  considered  as  aiding  her  sister  in  the 
act  of  paying  for  a  loaf  inside  the  shop.  And  in  the  case  of  Rex  v. 
Else,  Russ.  &  Ry.  142,  it  was  held  that  if  one  person  utter  a  bad  piece  of 
monej',  having  no  more,  in  conjunction  with  another,  who  had  more  bad 
money  but  who  was  absent  and  did  not  utter,  neither  was  guilty  of  this 
offence :  however,  in  that  case  the  persons  were  much  further  asunder 
than  the  prisoners  had  been  in  the  present. 

Gakrow,  B.  With  regard  to  the  second  objection,  I  think  that  the 
two  prisoners  coming  together  to  the  shop,  and  the  one  staying  outside, 
they  must  botii  be  taken  to  be  jointly  guilty  of  the  uttering ;  and  it  will 
be  for  the  Jury  to  say  whether  the  possession  of  the  remaining  pieces 
of  bad  money  was  not  joint.  .  .  . 

Verdict,  Guilty. 


COMMONWEALTH  v.   KNAPP. 
Supreme  Jodicial  Court  of  Massachusetts.     1830. 

[Reported  9  Pickerin;/,  496] 

John  Francis  Knapp  was  indicted  as  principal,  together  with 
Joseph  Jenkins  Knapp  and  George  Crowninshield  as  accessories,  in 
the  murder  of  Joseph  White  of  Salem,  which  was  perpetrated  on  the 
6th  of  April,  1830.  The  indictment  alleged  that  Richard  Crownin- 
shield also  was  a  principal,  and  that  he  had  committed  suicide.  The 
parties  indicted  were  tried  separately.^ 

The  evidence  in  the  case  tended  to  prove  that  Richard  Crowninshield* 
alone  entered  the  house  of  White  and  there  perpetrated  the  murder, 
and  that  the  prisoner  was  in  a  street  about  300  feet  distant  from  the 
house,  aiding  and  abetting. 

Putnam,  J.,  delivered  the  opinion  of  the  court.  By  the  most  ancient 
common  law,  as  it  was  generally  understood,  those  persons  only  were 
considered  as  principals  in  murder  who  actually  killed  the  man,  and 
those  who  were  present,  aiding  and  abetting,  were  considered  as  ac- 
cessories. So  that  if  he  who  gave  the  mortal  blow  were  not  convicted, 
he  who  was  present  and  aiding,  being  only  an  accessory,  could  not  be 
put  upon  his  trial.  But  the  law  was  otherwise  settled  in  the  reign  of 
Henry  IV.  It  was  then  adjudged  that  he  who  was  present,  aiding 
and  abetting  him  who  actually  killed,  was  to  be  considered  as  actually 
killing,  as  much  as  if  he  himself  had  given  tiie  deadly  blow. 

[To  the  jury.]     There  is  no  evidence  that  the   prisoner  gave  the 

1  Part  of  the  case,  not  involving  the  question  of  principal  and  accessory,  is  omitted. 


SECT.  lY.]  COMMONWEALTH    V.    KNAPP.  629 

mortal  blows  with  his  own  hand ;  but  it  is  contended  on  the  part  of 
the  government  that  he  was  prese?it,  aiding  and  abetting  the  perpe- 
trator, at  the  time  when  the  crime  was  committed.  We  are  therefore 
to  consider  what  facts  are  necessary  to  be  proved  to  constitute  him, 
who  is  aiding  and  abetting,  to  be  a  principal  in  the  murder ;  or,  in 
other  words,  what,  in  the  sense  of  the  law,  is  meant  by  being  present, 
aiding  and  abetting. 

It  is  laid  down  in  Foster's  Crown  Law,  349,  350,  Discourse  3,  §  4, 
that  "  when  the  law  requireth  the  presence  of  the  accomplice  at  the 
perpetration  of  the  fact,  in  order  to  render  him  a  principal,  it  doth  not 
require  a  strict,  actual,  immediate  presence,  such  a  presence  as  would 
make  him  an  eye  or  ear  witness  of  what  passeth.  Several  persons  set 
out  together,  or  in  small  parties,  upon  one  common  design,  be  it 
murder  or  other  felony,  or  for  any  other  purpose  unlawful  in  itself, 
and  each  taketh  the  part  assigned  him  ;  some  to  commit  the  fact, 
others  to  watch  at  proper  distances  and  stations  to  prevent  a  surprise, 
or  to  favor,  if  need  be,  the  escape  of  those  who  are  more  immediately 
engaged.  They  are  all,  provided  the  fact  be  committed,  in  the  eye  of 
the  law  present  at  it ;  for  it  was  made  a  common  cause  with  them  ; 
each  man  operated  in  his  station  at  one  and  the  same  instant  towards 
the  common  end ;  and  the  part  each  man  took  tended  to  give  counte- 
nance, encouragement,  and  protection  to  the  whole  gang,  and  to  in- 
sure the  success  of  their  common  enterprise."  In  §  5,  —  "  In  order  to 
render  a  person  an  accomplice  and  a  principal  in  felon}-,  he  must  be 
aiding  and  abetting  at  the  fact,  or  ready  to  afford  assistance  if  neces- 
sary." So,  in  1  Hawkins's  P.  C,  c.  32,  s.  7  (7th  ed.)  being  p7'ese?it  in 
judgment  of  the  laic  is  equivalent  to  being  actually  present,  for,  says 
Hawkins,  "  the  hope  of  their  immediate  assistance  encourages  and 
emboldens  the  murderer  to  commit  the  fact,  which  otherwise  perhaps 
he  would  not  have  dared  to  do,  and  makes  them  guilty  in  the  same 
degree  [as  principals]  as  if  they  had  actually  stood  b}^  with  their 
swords  drawn,  ready  to  second  the  villany."  These  principles  have 
been  fully  recognized  by  the  very  learned  and  distinguished  chief  jus- 
tice of  the  Supreme  Court  of  the  United  States,  in  4  Cranch,  492. 

The  person  charged  as  principal  in  the  second  degree  must  be 
present ;  and  he  must  be  aiding  and  abetting  the  murder.  But  if  the 
abettor,  at  the  time  of  the  commission  of  the  crime,  were  assenting  to 
the  murder,  and  in  a  situation  where  he  might  render  some  aid  to 
the  perpetrator,  ready  to  give  it  if  necessary,  according  to  an  ap- 
pointment or  agreement  with  him  for  that  purpose,  he  would,  in  the 
judgment  of  the  law,  be  present  and  aiding  in  the  commission  of  the 
crime.  It  must  therefore  be  proved  that  the  abettor  was  in  a  situation, 
in  which  he  might  render  his  assistance,  in  some  manner,  to  the  com- 
mission of  the  offence.  It  must  be  proved  that  he  was  in  such  a  situ- 
ation, b}'  agreement  with  the  perpetrator  of  the  crime,  or  with  his 
previous  knowledge,  consenting  to  the  crime,  and  for  the  purpose  of 
rendering   aid  and  encouragement  in  the  commission  of  it.     It  must 


330  COMMONWEALTH   V.   KNAPP.    '  [CHAP.  X. 

also  be  proved  that  he  was  actually  aiding  and  abetting  the  perpe- 
trator at  the  time  of  the  murder.  But  if  the  abettor  were  consenting 
to  the  murder,  and  in  a  situation  in  which  he  might  render  atii/  aid, 
by  arrangement  with  the  perpetrator,  for  the  purpose  of  aiding  and 
assisting  him  in  the  murder,  then  it  would  follow  as  a  necessary  legal 
inference,  that  he  was  actually  aiding  and  abetting  at  the  commission 
of  the  crime.  For  the  presence  of  the  abettor  under  such  circum- 
stances must  encourage  and  embolden  the  perpetrator  to  do  the  deed, 
by  giving  him  hopes  of  immediate  assistance ;  and  this  would  in  law 
be  considered  as  actually  aiding  and  abetting  him,  although  no  fur- 
ther assistance  should  be  given.  For  it  is  clear  that  if  a  person  is 
present  aiding  and  consenting  to  a  murder  or  other  felony,  that  alone 
is  sufficient  to  charge  him  as  a  principal  in  the  crime.  And  we  have 
seen  that  the  presence  by  construction  or  judgment  of  the  law  is  in 
this  respect  equivalent  to  actual  presence. 

We  do  not,  however,  assent  to  the  position  which  has  been  taken  by 
the  counsel  for  the  government,  that  if  it  should  be  proved  that  the 
prisoner  conspired  with  others  to  procure  the  murder  to  be  committed, 
it  follows,  as  a  legal  presumption,  that  the  prisoner  aided  in  the  actual 
perpetration  of  the  crime  unless  he  can  show  the  contrary  to  the  jury. 
The  fact  of  the  conspiracy  being  proved  against  the  prisoner  is  to  be 
weighed  as  evidence  in  the  case,  having  a  tendency  to  prove  that  the 
prisoner  aided,  but  it  is  not  in  itself  to  be  taken  as  a  legal  presump- 
tion of  his  having  aided  unless  disproved  by  him.  It  is  a  question  of 
evidence  for  the  consideration  of  the  jury. 

If,  however,  the  jury  should  be  of  opinion  that  the  prisoner  was  one 
of  the  conspirators,  and  in  a  situation  in  which  he  might  have  given 
some  aid  to  the  perpetrator  at  the  time  of  the  murder,  then  it  would 
follow,  as  a  legal  presumption,  that  he  was  there  to  carry  into  effect 
the  concerted  crime ;  and  it  would  be  for  the  prisoner  to  rebut  the  pre- 
sumption, by  showing  to  the  jury  that  he  was  there  for  another  pur- 
pose unconnected  with  the  conspiracy.  We  are  all  of  opinion  that 
these  are  the  principles  of  the  law  applicable  to  the  case  upon  trial.^ 

1  Ace.  Rex  V.  Owen,  1  Moody,  96;  Rex  v.  Dyson,  Russ.  &  Ry.  523  ;  Thomas  v. 
State,  43  Ark.  149;  Doan  v.  State,  26  Ind.  495;  State  v.  Douglass,  34  La.  Ann.  523; 
State  V.  Jones,  83  N.  C.  605.  See  Amos  v.  State,  83  Ala.  1.  Conf.  People  v.  Wood- 
ward, 45  Cal.  293;  State  v.  Hildreth,  9  Ired.  440. 

"If  three  thieves  come  to  a  man's  house,  and  one  forces  and  enters  the  house,  and 
the  other  two  stand  outside  in  the  meantime,  they  shall  all  three  be  taken  and  con- 
victed  of  this,  whatever  judgment  you  may  think  will  be  passed  on  the  two."  —  SPIG- 
ONEL,  J.,  in  Y.  B.  30  &  31  Ed.  I.  p.  108.  — Ed. 


SECT.  IV.]  -      BREESE   V.   STATE.  631 


BREESE   V.    STATE. 

Supreme  Court  of  Ohio.     1861. 

[Reported  12  Ohio  State,  146.] 

Peck,  J.*  Did  the  court  err  in  that  portion  of  its  charge  to  the  jurj 
which  is  stated  in  the  bill  of  exceptions  ?  The  charge,  which  is  copied 
into  the  statement  of  the  case,  and  which,  on  account  of  its  length,  I 
do  not  propose  to  repeat  here,  was,  substantial!}-,  that  if  the  jury 
should  find,  be3-ond  a  reasonable  doubt,  from  the  testimon}-,  that  the 
defendant  had  agreed  with  others  to  commit  the  burglary,  on  the 
night  on  which  it  was  done,  and  that,  as  a  part  of  said  agreement, 
and  to  facilitate  the  breaking  and  entry  and  lessen  the  chances  of 
detection,  it  was  agreed  that  the  defendant  should  on  that  night  pro- 
cure or  decoy  the  owner,  Whetstone,  awa}'  from  the  store  in  which  he 
usually  slept,  to  a  party,  about  a  mile  distant,  and  detain  him  there 
while  the  other  confederates  were  to  break  and  enter  said  store  and 
remove  the  goods,  and  that  both  parties  did,  in  fact,  perform  their 
respective  parts  of  said  agreement,  that  then  the  defendant  was  con- 
structively present  at  the  breaking  and  entry  by  his  confederates,  and 
might  be  convicted  as  principal  therein  if  all  the  other  material  allega- 
gations  were  proved  be3oud  a  reasonable  doubt. 

We  are  free  to  say  that  this  charge,  if  there  was  evidence  tending  to 
prove  it,  is  unexceptionable. 

"  Any  participation  in  a  general  felonious  plan,  provided  such  par- 
ticipation be  concerted,  and  there  be  a  constructive  presence,  is  enough 
to  make  a  man  principal  in  the  second  degree."  Wharton's  C.  L.  113, 
and  the  case  cited  by  Wharton  to  establish  the  rule  shows  what  is 
meant  b3^  a  "  constructive  presence." 

"  If  several  act  in  concert  to  steal  a  man's  goods,  and  he  is  induced  by 
fraud  to  trust  one  of  them,  in  the  presence  of  the  others,  with  the  pos- 
session of  such  goods,  and  another  of  them  entices  him  away,  that 
the  man  who  has  the  goods  may  carry  them  off,  all  are  guilty  of  the 
felony."     Rex  v.  Standley  and  others,  Russ.  and  Ry.  C.  C.  305. 

The  defendant  was,  by  the  agreement,  not  only  to  procure  Whet- 
stone to  go  to  the  party  "  to  give  his  confederates  greater  security 
from  detection  while  in  the  act  of  breaking  into  the  store,"  but  the 
jury  were  required  to  find,  as  a  part  of  the  supposed  case,  that  the 
defendant  "  kept  him  there  while  his  confederates  were  engaged  in 
breaking  said  store,  and  in  concealing  the  fruits  of  said  crime  in  pur- 
suance of  said  previous  confederacy." 

The  charge  would  therefore  seem  to  fall  within  the  well-known  rule 
stated  in  Archbold  C.  L.  10,  "  that  persons  are  said  to  be  present, 
who  are  engaged  in  the  same  design  with  the  one  who  actually  com- 

*  Part  of  the  opinion  only  is  given. 


632  ACCESSORIES.  [chap.  X. 

mits  the  offence,  although  not  actually  present  at  the  commission  of 
it,  yet  are  at  such  convenient  distance  as  to  be  able  to  come  to  the 
assistance  of  their  associates  if  required,  or  to  watch  to  prevent  sur- 
prise or  the  like/' 

Bishop,  in  section  460,  vol.  1.  of  his  Treatise  upon  Criminal  Law, 
says:  "  If  the  will  of  such  other  one  contributed  to  the  act,  the  test  to 
determine  whether  the  law  deems  him  a  principal  rather  than  an  acces- 
sory is,  whether  he  was  so  near,  or  otherwise  so  situated,  as  to  make 
his  personal  help,  if  required,  to  any  degree  available." 

The  part  assigned  by  the  agreement  to  the  defendant  —  a  constant 
supervision  over  Whetstone  while  the  burglary  was  effected  —  formed 
an  essential  part  of  the  plan  of  the  burglary  agreed  upon,  as  much  so 
as  the  rending  of  the  shutter,  or  the  forcing  of  the  door.  And  the 
defendant,  in  the  case  supposed,  was  constructively  present  at  the 
burglary,  if  Jones  who,  in  the  case  from  Russ.  and  Ry.  supra,  enticed 
McLaughlin  away,  was  constructively  present  at  the  subsequent  aspor- 
tation of  McLaughlin's  money  by  his  confederates,  Standley  and 
Webster. 

So,  in  Hess  v.  The  State,  5  Ohio  12,  it  is  said:  "And  in  general,  if 
several  unite  in  one  common  design,  to  do  some  unlawful  act,  and  each 
takes  the  part  assigned  him,  though  all  are  not  actually  present,  yet 
all  are  present  in  the  eye  of  the  law  ; "  citing  Foster,  450,  353  ;  1 
Hale's  P.  C.  439 ;  2  Starkie's  Ev,  T.^ 


SECTION  V. 

Accessories. 


2  Hawkins  P.  C.  c.  29,  s.  16.  It  seems  to  be  agreed  that  those  who 
by  hire,  command,  counsel,  or  conspiracy,  and  it  seems  to  be  generally 
holden  that  those  who  by  showing  an  express  liking,  approbation,  or 
assent  to  another's  felonious  design  of  committing  a  felony,  abet  and 
encourage  him  to  commit  it,  but  are  so  far  absent  when  he  actually 
commits  it  that  be  could  not  be  encouraged  by  the  hopes  of  any  imme- 
diate help  or  assistance  from  them,  are  all  of  them  accessories  before 
the  fact,  both  to  the  felony  intended  and  to  all  other  felonies  which 
shall  happen  in  and  by  the  execution  of  it,  if  they  do  not  expressly 
retract  and  countermand  their  encouragement  before  it  is  actually 
committed. 

2  Hawkins  P.  C.  c.  29,  ss.  26,  27,  34,  35,  As  to  what  kind  of 
receipt  of  a  felon  will  make  the  receiver  an  accessory  after  the  fact,  it 
seems  agreed   that  generally  any   assistance   whatever  given  to  one 

1  See  State  v.  Poynier,  36  La.  Ann.  bl2 ,  State  v.  Hamilton,  13  Nev.  386.  —  Ed. 


SECT,  v.]  REGIXA    V.    CLAYTON.  633 

known  to  be  a  felon,  in  order  to  hinder  his  being  apprehended  or  tried 
or  suffering  tlie  punishment  to  which  he  is  condemned,  is  a  sufficient 
receipt  for  this  purpose,  —  as  where  one  assists  him  with  a  iiorse  to 
ride  away  with,  or  with  money  or  victuals  to  support  him  in  his  escape  ; 
or  where  one  harbors  and  conceals  in  his  house  a  felon  under  pursuit,  by 
reason  whereof  the  pursuers  cannot  find  him  ;  and  much  more,  where 
one  harbors  in  his  house,  and  openly  protects  such  a  felon,  by  reason 
whereof  the  pursuers  dare  not  take  him.^ 

Also  I  take  it  to  be  settled  at  this  day  that  whoever  rescues  a  felon 
from  an  arrest  for  the  felony,  or  voluntarily  suffers  him  to  escape,  is 
an  accessory  to  the  felony. 

It  seems  agreed  that  the  law  hath  such  a  regard  to  that  duty,  love, 
and  tenderness  which  a  wife  owes  to  her  husband  as  not  to  make  her 
an  accessory  to  felony  by  any  receipt  whatsoever  given  to  her  husband. 
Yet  if  she  be  any  way  guilty  of  procuring  her  husband  to  commit  it, 
it  seems  to  make  her  an  accessory  before  the  fact  in  the  same  manner 
as  if  she  had  been  sole.  Also,  it  seems  agreed  that  no  other  relation 
beside  that  of  a  wife  to  her  husband  will  exempt  the  receiver  of  a  felon 
from  being  an  accessory  to  the  felony.  From  whence  it  follows  that 
if  a  master  receive  a  servant,  or  a  servant  a  master,  or  a  brother  a 
brother,  or  even  a  husband  a  wife,  they  are  accessories  in  the  same 
manner  as  if  they  had  been  mere  strangers  to  one  another. 

It  seems  to  be  clearly  agreed  that  a  man  shall  never  be  construed 
an  accessory  to  a  felony,  in  respect  of  the  receipt  of  an  offender,  who 
at  the  time  of  the  receipt  was  not  a  felon,  but  afterwards  becomes 
such  by  matter  suljsequent,  —  as  where  one  receives  another  who  has 
wounded  a  person  dangerously,  that  happens  to  die  after  such  receipt." 


REGINA  V.  CLAYTON. 

Shropshire  Assizes.     1843. 

[Reported  1  Carrington  Sf  Kirwan,  128.] 

Misdemeanor.  —  The  prisoners  were  indicted  for  a  misdemeanor  In 
having  attempted  to  set  fire  to  a  certain  malt-house,  and  were  jointly 
charged  by  the  indictment  with  so  attempting. 

It  appeared  by  the  evidence  that  the  prisoner  Mary  Mooney  had 
gone  to  bed  an  hour  and  a  half  before  the  fire  was  discovered,  and 
there  was  every  reason  to  suppose  that  she  was  not  present  at  the  time 
when  the  fire  was  lighted  ;  and  the  evidence,  which  was  entirely  circum- 
stantial, tended  to  show  that  the  prisoner  Clayton  lighted  the  fire  only 
a  few  minutes  before  it  was  discovered.     Declarations  of  the  prisoner 

'  See  Tully  v.  Com.,  11  Bush,  154;  Wren's  Case,  26  Gratt.  952.  —Ed. 
'      a  See  Harrel  i;.  State,  39  Miss.  702.  —  Ed. 


634  COMMONWEALTH   V.   PHILLIPS.  [CHAP.  X. 

Mary  Mooney  were  proved  which  tended  to  show  that  she  knew  before- 
hand  that  the  fire  was  to  take  place. 

J.  G.  Fhillimore,  for  the  prisoners,  submitted  that  there  was  no 
case  against  tlie  prisoner  Mary  Mooney  on  this  indictment. 

Greaves.  All  who  take  part  in  a  misdemeanor  are  principals,  and 
whatever  will  make  a  person  an  accessory  before  the  fact  in  a  felony 
makes  him  principal  in  a  misdemeanor. 

Williams,  J.  (in  summing  up).  In  misdemeanors  and  in  treason, 
all  who  take  part  in  the  crime  are  principals ;  and  in  this  case  it  is  not 
necessary  to  prove  that  the  prisoner  Mary  Mooney  was  present  at  the 
time  when  the  prisoner  Clayton  attempted  to  set  fire  to  the  malt-house ; 
and  if  you  are  satisfied  that  she  counselled  and  encouraged  Clayton  to 
set  fire  to  the  malt-house,  she  may  be  convicted  upon  this  indictment.^ 

Verdict,  Not  guilty. 


I 


REGINA  V.  BROWN. 
tjs-^^  Bristol  Assizes.     1878. 

QjtP^^  [Reported  14  Cox  C.  C.  144] 

Frederick  Brown  was  indicted  for  murder,  his  wife  being  also 
indicted  as  an  accessory  before  the  fact.  It  was  proved  that  the  blow, 
which  proved  fatal,  was  struck  within  a  few  feet  of  where  the  wife  was 
standing. 

Lord  Coleridge,  C.  J.,  directed  the  acquittal  of  the  female  prisoner, 
pointing  out  that  she  should  have  been  indicted  as  a  principal  if  any- 
thing. An  accessory  before  the  fact  must  be  absent  at  the  time  when 
the  crime  is  committed,  and  the  act  must  be  done  in  consequence  of 
some  counsel  or  procurement  of  his. 


COMMONWEALTH  v.  PHILLIPS. 
Supreme  Judicial  Court  of  Massachusetts.     1820. 

[Reported  16  Massachusetts,  423. J 

Indictment  at  the  last  March  term  in  this  county,  charging  one 
Thomas  Daniels  as  principal,  and  the  defendant  as  accessory  before 
the  fact,  in  burglary.  The  death  of  Daniels  was  alleged  in  the  indict- 
ment, and  the  question  was  whether  the  prisoner  Phillips  could  lawfully 
be  put  upon  his  trial.' 

»  Ace.  Lasington's  Case,  Cro.  Eliz.  750  (petty  larceny);  Booth's  Case,  Moore,  666 
(forgery  at  common  law);  Rex  v.  Jackson,  1  Lev.  124  (perjury);  U.  S.  v.  Gooding,  12 
Wheat.  460  (fitting  out  vessel  for  slave  trade);  Sanders  v.  State,  18  Ark.  198  (obstruct- 
ing highway) ;  Stevens  v.  People,  67  111.  587  (keeping  gaming-house).  —  Ed. 

*  Arguments  of  counsel  are  omitted. 


SECT,  v.]  STARIN  V.   PEOPLE.  635 

Parker,  C.  J.,  stated  that  the  justices  had  carefullj  examined  the 
books  upon  the  subject,  and  were  unanimously  of  opinion  that  by  the 
common  law  an  accessory  cannot  be  put  on  his  trial,  but  by  his  own 
consent,  until  the  conviction  of  the  principal.  The  reason  of  this  rule 
is  very  plain.  If  there  is  no  principal  there  can  be  no  accessory,  and 
the  law  presumes  no  one  guilty  until  conviction.  Statutes  have  made 
a  difference  as  to  some  lesser  species  of  offences,  but  do  not  touch  the 
principle  in  capital  cases.  Our  only  doubt  arose  from  the  peculiar  cir- 
cumstance in  this  case,  that  the  person  charged  as  principal  Is  dead, 
and  can  never  be  tried.  If  he  were  alive  and  on  trial,  it  is  possible 
he  might  establish  his  innocence,  strong  as  the  evidence  has  appeared 
in  support  of  his  guilt.  In  such  case  the  prisoner  could  not  be  found 
guilty,  for  he  could  not  have  been  accessory  to  the  commission  of  the 
crime  as  charged.  The  trial  might  have  been  stopped  at  the  com- 
mencement of  it  had  our  minds  been  then  free  from  all  doubt.  But 
as  the  prisoner  has  been  put  on  his  trial,  he  has  a  right  to  a  verdict. 

The  jury  accordingly,  under  the  direction  of  the  court,  immediately 
returned  a  verdict  of  acquittal,  and  the  prisoner  was  discharged  of  this 
indictment.* 


STARIN   V,   PEOPLE. 
Court  of  Appeals  of  New  York.     1871. 

[Reported  45  New  York,  333. | 

Church,  C.  J.'  The  plaintiff  in  error  was  indicted  as  accessory 
before  the  fact  to  the  crime  of  burglary  in  the  first  degree,  committed 
by  four  principals  named  in  the  indictment.  At  the  Montgomery  Oyer 
and  Terminer,  held  on  the  13th  day  of  May,  1867,  the  prisoner  hav- 
ing been  arraigned  and  plead  not  guilty  to  the  indictment,  the  district 
attorney  moved  the  trial  of  the  prisoner,  who,  by  his  counsel,  objected 
to  proceeding  with  the  trial  until  after  the  conviction  of  all  the  princi- 
pals named  in  the  indictment.  The  district  attorney  then  admitted  that 
but  one  of  the  principals  had  been  convicted,  that  one  other  was  then 
in  jail,  and  the  other  two  had  not  been  arrested.  The  objection  was 
then  overruled,  and  the  decision  excepted  to. 

Several  other  objections  were  raised  and  decided,  but  one  of  which 
it  is  necessary  to  notice,  and  as  to  that  the  record  is  as  follows :  The 
prisoner,  by  his  counsel,  then  objected  to  being  tried  as  accessory  to 
any  other  principal  than  the  one  who  was  convicted ;  the  court  over- 
ruled the  objection,  and  the  prisoner's  counsel  then  and  there  duly 
excepted. 

1  See  ace.  U.  S.  v.  Crane,  4  McLean,  317;  Simmons  i>.  State,  4  Ga.  465;  "White, 
head  v.  State,  4  Humph.  278  ;  State  v.  Pybass,  4  Humph.  442.  See  Hatchett  v.  Com., 
75  V a.  925;  Ogden  v.  State,  12  Wis.  532.  —  Ed, 

'  Part  of  the  opinion  only  is  given. 


636  STARIN  V.  PEOPLE.  [CHAP.  X. 

The  jury  were  then  impannelled,  and  the  trial  proceeded.  If  this 
exception  is  available  to  the  prisoner,  it  is  fatal  to  the  conviction  and 
judgment.  An  accessory  may  be  tried  jointly  with  the  principal,  but  the 
jury  must  first  agree  upon  the  guilt  of  the  principal,  while  an  acquittal 
of  the  principal  necessarily  acquits  the  accessory.  Wharton's  Crim. 
Law,  §  138.  If  the  accessory  is  not  tried  with  the  principal,  he  cannot 
be  tried  until  the  principal  has  been  tried  and  convicted.  People  v. 
Bacon,  1  Park  R.,  246.  Formerly,  if  a  man  was  indicted  as  accessory 
in  the  same  crime  to  two  or  more  persons,  he  could  not  have  been 
arraigned  until  all  the  principals  were  convicted  and  attainted.  Hale's 
Pleas  of  the  Crown,  623,  chap.  47.  And  in  order  to  try  an  accessory, 
when  only  one  of  several  principals  had  been  convicted,  it  was  necessary 
to  indict  and  arraign  him  as  accessory  to  that  one  onl}'.     Id. 

But  the  modern  decisions  have  somewhat  modified  this  rule,  and  the 
weight  of  authority  now  is  that  an  accessory  may  be  tried  and  convicted 
when  one  only  of  several  principals  named  in  the  indictment  has  been 
convicted.  1  Russell  on  Crimes,  38;  Bishop's  Crim.  Law,  §  611; 
Commonwealth  v.  Knapp,  10  Pick.  477. 

But  it  is  well  settled  that  in  such  a  case  the  accessory  must  be 
tried  and  convicted  as  accessory  to  the  convicted  principal  only,  in  the 
same  manner  as  though  the  convicted  principal  only  was  named  in  the 
indictment.  The  authorities  are  uniform  on  this  subject,  and  I  have 
been  unable  to  find  any  decision  against  this  position.  Strops  y.  Com., 
7  Serg.  &  R.  491 ;  3  Greenl.  Ev.  §  52  ;  People  v.  Bacon,  1  Park.  246  ; 
1  Bishop's  Crim.  Law,  468. 

This  necessarily  results  from  the  rule  that  the  guilt  of  the  principal 
can  only  be  shown  by  a  judicial  trial  and  conviction,  and  even  then 
it  is  not  conclusive  against  the  accessory.  10  Pick,  supra.  The  as- 
sociation of  unconvicted  principals  with  a  convicted  principal  in  the 
indictment  does  not  authorize  the  trial  of  an  accessory  to  any  but  the 
one  convicted,  any  more  than  it  would  if  those  not  convicted  had  not 
been  named.  The  decision  of  the  court,  therefore,  overruling  the 
objection  of  the  prisoner  to  being  tried  as  accessory  to  any  but  the 
convicted  principal,  was  clearly  erroneous. 

Mass.  R.  L.  ch.  215,  Sects.  3,  7.  "Whoever  counsels,  hires,  or  other- 
wise procures  a  felon}'  to  be  committed,  may  be  indicted  and  convicted 
as  an  accessory  before  the  fact,  either  with  the  principal  felon  or  after 
his  conviction ;  or  may  be  indicted  and  convicted  of  a  substantive  felon}-, 
whether  the  principal  felon  has  or  has  not  been  convicted,  or  is  or  is 
not  amenable  to  justice. 

An  accessory  to  a  felony  after  the  fact  may  be  indicted,  convicted, 
and  punished,  whether  the  principal  felon  has  or  has  not  been  previously 
convicted,  or  is  or  is  not  amenable  to  justice. 

Penal  Code  of  New  York,  §§  29,  32.  A  person  concerned  in  the 
commission  of  a  crime,  whether  he  directly  commits  the  act  constituting 


SECT.  VlJ  •  EULOFF  V.   PEOPLE.  637 

the  offence,  or  aids  and  abets^  In  its  commission,  and  whether  present 
or  absent ;  and  a  person  who  directly  or  indirectly  counsels,  commands, 
induces,  or  procures  another  to  commit  a  crime,  is  a  principal. 

An  accessory  to  a  felony  may  be  indicted,  tried,  and  convicted,  .  .  . 
whether  the  principal  felon  has  or  has  not  been  previously  convicted, 
or  is  or  is  not  amenable  to  justice,  and  although  the  principal  has  been 
pardoned  or  otherwise  discharged  after  conviction. 


SECTION   VI. 

Acts  done  in  pursuance  of  a  common  design. 

ASHTON'S   CASE. 
King's  Bench.     1698. 

[Reported  12  Modern,  256.] 

Holt,  C.  J.  Two,  three,  or  more  are  doing  an  unlawful  act,  as 
abusing  the  passers-by  in  a  street  or  highway,  if  one  of  them  kill  a 
passer-by,  it  is  murder  in  all ;  and  whatever  mischief  one  does,  they 
are  all  guilty  of  it ;  and  it  is  lawful  for  any  person  to  attack  and  suppress 
them,  and  command  the  king's  peace  ;  and  such  attempt  to  suppress 
is  not  a  sufficient  provocation  to  make  killing  manslaughter,  or  son 
assault  demesne  a  good  plea  in  trespass  against  them.^ 


RULOFF  V.   PEOPLE. 
CouKT  OF  Appeals  of  New  York.     1871. 

[Reported  45  New  York,  213.] 

Allen,  J.'^  The  jury  have,  by  their  verdict,  found  that  the  homicide 
was  committed  either  by  the  accused  in  person  or  by  some  one  acting 
in  concert  with  him  in  the  commission  of  a  felony,  and  in  the  prosecu- 
tion and  furtherance  of  a  common  purpose  and  design. 

It  must  be  assumed,  from  the  finding  of  the  jury,  that  the  prisoner 
was  one  of  the  three  persons  who  burglariously  entered  the  store  on  the 
night  of  the  homicide  *,  that  Merrick  was  killed  by  one  of  the  burglars, 
in  pursuance  of  the  common  intent  of  all ;  and  that  the  accused  either 
fired  the  shot  which  caused  the  death,  or  was  present,  aiding  and  abet- 
ting his  confederates  in  the  commission  of  the  act.  The  presumption 
from  the  evidence,  assuming  that  the  witnesses  and  their  statements 

1  See  Reg.  v.  Jackson,  7  Cox  C.  C.  357  ;  Reg.  v.  Salmon,  H  Cox  C.  C.  494, 
supra.  —  Ed. 

2  Part  of  the  opinion  only  is  given. 


638  RULOFF   V.   PEOPLE.  [CHAP.  X. 

are  credible,  as  the  jury  seem  to  have  believed,  is,  that  the  accused, 
in  person,  committed  the  homicide ;  and  it  is  not  improbable  that,  had 
the  jury  been  left  to  pronounce  upon  his  guilt  or  innocence  upon  that 
theory  alone,  without  the  complications  resulting  from  the  submission 
of  the  questions  touching  his  responsibility  for  the  acts  of  any  other 
by  whom  the  deed  might  have  been  perpetrated,  the  result  would  have 
been  the  same.  There  were  but  three  persons,  other  than  the  deceased 
and  his  fellow-clerk,  present.  One  of  these  was  disabled  and  lying 
upon  the  floor  seriously  wounded,  and  the  other  was  in  the  grasp  of 
Merrick,  the  deceased,  and  was  also  wounded  and  injured.  The  third 
came  up  the  stairs  and  fired  the  pistol  which  caused  the  death,  and  he 
alone  of  the  three  was  uninjured  and  unwounded.  The  accused,  when 
arrested  a  day  or  two  after  the  occurrence,  bore  no  mark  of  injury  upon 
his  person,  and  could  not  have  been  one  of  the  two  so  badly  injured 
in  the  encounter  with  the  clerks.  It  follows  that  he  was  either  not 
present,  and  has,  therefore,  been  wrongfully  convicted,  or  his  hand  dis- 
charged the  pistol  which  caused  the  death  of  Merrick.  But  the  jury 
may  have  taken  other  views  of  the  evidence  under  the  charge,  so  that 
the  questions  made  upon  the  trial  and  presented  by  the  writ  of  error, 
upon  the  rules  governing  the  liability  of  one  to  answer  criminally  for 
the  acts  of  others,  cannot  be  passed  by  without  consideration. 

If  the  homicide  was  committed  by  one  of  several  persons,  in  the 
prosecution  of  an  unlawful  purpose  or  common  design,  in  which  the 
combining  parties  had  united,  and  for  the  effecting  whereof  they  had 
assembled,  all  were  Uable  to  answer  criminally  for  the  act,  and,  if  the 
homicide  was  murder,  all  were  guilty  of  murder,  assuming  that  it  was 
within  the  common  purpose.  All  present  at  the  time  of  committing 
an  offence  are  principals,  although  only  one  acts,  if  they  are  confeder- 
ates, and  engaged  in  a  common  design,  of  which  the  offence  is  a  part. 
1  Russ.  on  Crimes,  27,  29.  The  several  persons  concerned  in  this 
offence  were  assembled  for  the  commission  of  a  felony,  and  were 
engaged  in  the  actual  perpetration  of  the  offence;  and  the  homicide 
was  committed  upon  one  who  was  opposing  them  in  the  act,  and  in 
rescuing  and  aiding  the  confederates  to  escape.  To  this  conclusion  the 
jury  must  have  come. 

If  there  was  a  general  resolution  against  all  opposers,  and  to  resist 
to  the  utmost  all  attempts  to  detain  or  hold  in  custody  any  of  the 
parties,  all  the  persons  present  when  the  homicide  was  committed  were 
equally  guilty  with  him  who  fired  the  fatal  shot.  1  Russ.  on  Crimes, 
29,  30.  This  general  resolution  of  the  confederates  need  not  be  proved 
by  direct  evidence.  It  may  be  inferred  from  circumstances ;  by  the 
number,  aims,  and  behavior  of  the  parties  at  or  before  the  scene  of 
action.  Id. ;  Fost.  353,  354  ;  2  Hawk.  P.  C.  ch.  29,  s.  8  ;  Tyler's  Case, 
8  C.  &  P.,  616.  There  was  enough  in  this  case  to  authorize  the  sub- 
mission of  the  question  to  the  jury.  An  express  resolution  against  all 
opposers  can  very  seldom  be  proved  by  direct  evidence ;  but  here  every 
circumstance  tended  strongly  to  prove  it. 


SECT.  VI.]  STATE   V.  ALLEN.  639 

Some  of  the  confederates,  and  perhaps  all,  were  armed  ;  they  actually 
did  resist  all  opposition  with  such  weapons  as  they  could  successfully 
use.  When  one  was  detained,  being  overcome  by  the  opposition,  the 
others  returned  at  the  call  of  their  comrade,  and  the  only  one  in 
condition  to  do  so,  deliberately  shot  Merrick,  who  was  preventing  the 
escape  of  one  of  the  confederates,  and  was  cautioned  by  that  confeder- 
ate, when  about  to  shoot,  not  to  shoot  him.  The  jury  were  authorized 
to  infer  that  this  act  was  within  the  general  purpose  of  the  confederates. 
They  may  have  desisted  from  their  larcenous  attempts,  and  yet  the  full 
purpose  of  the  combination  not  have  been  carried  out  so  long  as  one  of 
the  party  was  detained  and  held  a  prisoner.^ 


STATE  V.  ALLEN. 
Supreme  C!ourt  of  Errors  of  Connecticut.     1879. 

[Reported  47  Connecticut,  121  ] 

Beardsley,  J.*  The  court  charged  the  jury  as  follows:  "If  the 
jury  shall  find  that  Hamlin  and  Allen,  at  some  time  previous  to  the 
homicide,  made  up  their  minds  in  concert  to  break  the  State  prison 
and  escape  therefrom  at  all  hazard,  and  knowing  that  the  enterprise 
would  be  a  dangerous  one  and  expose  them  to  be  killed  by  the  armed 
night-watchman  of  the  prison  should  they  be  discovered  in  making  the 
attempt,  wilfully,  deliberately,  and  premeditatedly  determined  to  arm 
themselves  witii  deadly  weapons,  and  kill  whatever  watchman  should 
oppose  them  in  their  attempt ;  and  if  the  jury  should  further  find  that 
in  pursuance  of  such  design  they  armed  themselves  with  loaded  revol- 
vers to  carry  their  original  purpose  into  execution,  and  while  engaged 
in  efforts  to  escape  from  the  prison  were  discovered  by  the  watchman 
Shipman  (the  deceased),  and  in  the  scuffle  which  ensued  he  was  wilfully 
killed  by  Hamlin  or  Allen  while  they  were  acting  in  concert  and  in 
pursuance  of  their  original  purpose  so  to  do  in  just  such  an  emergency 
as  they  now  found  themselves  in,  —  then  Hamlin  and  Allen  are  both 
guilty  of  murder  in  the  first  degree.  And  in  the  opinion  of  the  court 
Allen  would  be  guilty  of  murder  in  the  first  degree  if,  in  the  state  of 
things  just  described,  he  in  fact  abandoned,  just  before  the  fatal  shot 
was  fired  by  Hamlin,  all  further  attempt  to  escape  from  the  prison,  and 
the  infliction  of  further  violence  upon  the  person  of  Shipman,  without 
informing  Hamlin  by  word  or  deed  that  he  had  so  done,  and  Hamlin, 
ignorant  of  the  fact,  shortly  after  fired  the  fatal  shot,  in  pursuance  of 
and  in  accordance  with  the  purpose  of  the  parties  down  to  the  time  of 
the  abandonment." 

1  Jcc.  State  V.  Barrett,  40  Minn.    77  ;   State  v.  Davis,  87  N.  C.  514  ;  State  v. 
Johnson,  7  Or.  210.—  Ed. 

*  Part  of  the  opinion  only  is  given. 


640  STATE   V.   ALLEN.  [CHAP.  X. 

We  do  not  think  that  the  objection  made  by  the  defence  to  tliis  part 
of  the  charge  is  well  founded.  Under  such  circumstances  Allen's  so- 
called  abandonment  would  be  but  an  operation  of  the  mind,  -  a  secret 
change  of  purpose.  Doing  nothing  by  word  or  deed  to  inform  his  co- 
conspirator  of  such  change  of  purpose,  the  reasonable  inference  woi.ld 
be  that  he  did  not  intend  to  inform  him  of  it,  and  thus  he  would  be 
intentionally  encouraging  and  stimulating  him  to  the  commission  of  the 
homicide  by  his  supposed  co-operation  with  him.  Such  intent  not  to 
inform  Hamlin  of  his  change  of  purpose  would,  under  the  circumstances, 
be  decisive  of  bis  guilt. 

I  But  the  charge  proceeds:  "In  other  words,  if  during  the  fatal  en- 
counter with  deadly  weapons,  in  the  state  of  things  just  described, 
Allen  suddenly  abandoned  Hamlin,  abandoned  the  enterprise  and  went 
to  his  cell,  without  saying  a  word  to  Hamlin  to  the  effect  that  he  had 
abandoned  the  enterprise,  and  Hamlin,  supposing  that  he  was  still 
acting  with  him  and  that  he  had  gone  to  his  cell  for  an  instrument  to 
carry^on  the  encounter,  fired  the  fatal  shot,  his  abandonment  under 
such  circumstances  would  be  of  no  importance.  A  man  cannot  abandon 
another  under  such  circumstances  and  escape  the  consequences  of  the 
aid  he  has  rendered  up  to  the  time  of  the  abandonment." 

A  majority  of  the  court  think  that  the  jury  may  have  been  misled  by 
this  part  of  the  charge,  and  that  therefore,  especially  in  view  of  the 
grave  issues  involved  in  the  case,  a  new  trial  should  be  granted. 

If  Allen  did  in  fact  before  the  homicide  withdraw  from  the  conspir- 
acy, abandon  the  attempt  to  escape,  and  with  the  knowledge  of  Hamlin 
leave  and  go  to  his  cell,  Hamlin's  misconstruction  of  his  purpose  in 
leaving  did  not  necessarily  make  his  conduct  of  no  importance. 

Until  the  fatal  shot  there  was  the  locus  penitentice.  To  avail  himself 
of  it  Allen  must  indeed  have  informed  Hamlin  of  his  change  of  pur- 
pose, but  such  information  might  be  by  words  or  acts ;  and  if  with  the 
intention  of  notifying  Hamlin  of  his  withdrawal  from  the  conspiracy  he 
did  acts  which  should  have  been  efl'ectual  for  that  purpose,  but  which 
did  not  produce  upon  the  mind  of  Hamlin  the  efl'ect  which  he  intended, 
and  which  they  naturally  should  have  produced,  such  acts  were  proper 
for  the  jury  to  consider  in  determining  the  relation  of  Allen  to  the  crime 
which  was  afterwards  committed. 

Allen's  act  of  leaving  and  going  to  his  cell,  if  he  did  so,  had  some 
significance  in  connection  with  the  question  of  intention  and  notice, 
and  was  therefore  proper  for  the  consideration  of  the  jury.  How  much 
weight  was  to  be  given  to  it  would  depend  upon  circumstances,  such 
as  the  situation  of  the  parties  and  the  opportunity  for  verbal  or  other 
notice. 

A  new  trial  is  advised. 


SECT.  VI.]  STATE  V.    LUCAS.  641 


STATE   V.    LUCAS. 
Supreme  Court  of  Iowa.     1880 

[Reported  55  Iowa,  321.1 

Day,  J.  —  R.  G.  Edwards,  on  behalf  of  the  State,  testified  in  sub- 
stance that  he  was  night  vvatchraan  for  Hemmingway  &  Barclay's  mill, 
at  Lansing;  that  on  the  night  of  August  24,  1879,  the  defendant  and 
Wood  assaulted  and  knocked  him  down,  tied  his  hands  and  feet  and 
carried  him  into  the  mill,  and  that  while  the  defendant  went  after  a 
sledge  to  open  the  safe  in  the  mill,  Wood  took  three  dollars  in  silver 
from  his  pocket.  The  evidence  shows  that  the  safe  was  blown  open 
on  the  same  night.  The  defendant,  on  his  own  behalf,  testified  that 
he  had  nothing  to  do  with  robbing  Edwards,  and  was  not  at  the  mill 
at  all ,  that  he  rowed  Wood  and  Harris  in  a  skitT,  from  La  Crosse  to 
Lansing,  and  landed  near  the  mill  about  nine  o'olock  on  the  night  of 
the  robbery;  that  Wood  and  Harris  went  up  town  and  left  him  to 
watch  the  boat;  that  afterward  they  came  down  to  the  boat  in  a  hurry 
and  directed  him  to  row  over  to  Wisconsin  ;  that  on  the  way  he  saw 
them  dividing  some  silver  money  ;  that  when  they  reached  the  Wis- 
consin shore  they  sunk  the  boat;  that  on  the  way  to  La  Crosse  Wood 
told  him  all  that  happened,  and  gave  him  two  revolvers  to  carry. 

The  court  instructed  the  jury  as  follows :  *'  If  you  believe  from  all 
the  evidence  that  the  defendaut  did  not  leave  the  boat  after  the  arrival 
at  Lansing  ;  yet  if  you  also  believe  that  he  had  knowledge  of  the  intent 
of  his  associates  to  commit  crime,  either  of  robbery  of  the  man 
Edwards,  or  of  robbing  the  safe  in  Barclay  and  Hemmingway 's  mill, 
or  any  other  crime,  and  rowed  them  ashore  for  such  purpose,  and 
waited  in  the  boat  for  them  during  their  absence  in  committing  the 
crime,  then  you  will  find  the  defendant  guilty." 

The  doctrine  of  this  instruction  is  that  if  the  defendant  knew  of  the 
intent  of  his  associates  to  rob  the  safe  in  Barclay  &  Hemmingway's 
mill,  and  rowed  them  ashore  for  that  purpose  and  awaited  their  return 
he  is  guilty  of  the  robbery  of  Edwards.  This  doctrine  is  not  correct. 
It  'is  true  the  accessory  is  liable  for  all  that  ensues  upon  the  execution 
of  the  unlawful  act  contemplated ;  as,  if  A  commanded  B  to  beat  C, 
and  he  beats  him  so  that  he  dies,  A  is  accessory  to  the  murder.  So  if 
A  commanded  B  to  burn  the  house  of  C,  and  in  doing  so  the  house  of 
D  is  also  burnt,  A  is  accessory  to  the  burning  of  D's  house.  So,  in 
this  case,  if  Lucas  had  knowledge  of  the  intention  to  rob  the  safe,  and 
aided  and  abetted  his  associates  in  the  commission  of  that  offence,  and 
if,  in  furthering  that  purpose,  a  fatal  assault  had  been  made  upon 
Edwards,  the  defendant  would  have  been  accessory  to  the  murder. 

But,  if  the  accessory  order  or  advise  one  crime,  and  the  principal 
intentionally  commit  another ;  as,  for  instance,  to  burn  a  house,  and 
instead  of  that  he  commit  a  larceny  ;  or,  to  commit  a  crime  against  A, 

41 


(542  KEX  V,   HAWKINS.  [CHAP.  X. 

and  instead  of  so  doing  he  intentionally  commit  the  same  crime  against 

P,,  the  accessory  will  not  be  answerable.     See  1  Wharton's  Crimuial 

Law,  section  134,  and  authorities  cited.     It  follows  that  the  defendant 

cannot  be  convicted  of  a  robbery  of  Edwards,  from  the  mere  fact  that 

he  abetted  his  associates  in  the  robbery  of  Barclay  &  Hemraingway's 

safe.     If  the  intention  of  Lucas  was  to  abet,  and  share  in  the  proceeds 

of,   any  robbery   that  his   associates  might  commit,   a   different  rule 

would  apply.     But  this  is   not  the  thought  of  the  instruction  under 

consideration.     Our  view  of  the  law  governing  this  case  is  sufficiently 

indicated  by  the  foregoing,  without  noticing  consecutively  the  other 

errors  assigned  and  argued. 

Beversea^ 


EEX  V.  HAWKINS. 

Worcester  Assizes.     1828. 

[Reported  3  C.  Sf  P.  392.] 

The  indictment  charged  the  prisoners,  and  a  person  named  Williams 
(who  was  not  in  custody),  with  robbing  William  Tucker. 

It  appeared  that  the  prisoners  were  out  poaching  in  the  night  in 
company  with  Williams,  and  that  Tucker,  who  was  tbe  game-keeper  of 
Mr.  West,  met  them  as  he  was  going  his  rounds,  when  the  whole  party 
set  upon  him  and  beat  him  till  he  was  senseless ;  and  that,  on  his  re- 
covering, he  missed  his  pocket-book  aiid  mone3-,  and  his  gun.  How- 
ever, to  connect  some  of  the  prisoners  with  the  offence,  an  accomplice 
was  called,  who  stated  that  they  all  beat  the  game-keeper,  and  left  him 
lying  on  the  ground  ;  and  that,  after  they  had  gone  some  little  distance, 
AVilliams  returned  and  robbed  him. 

Park,  J.  It  appears  to  me  that  Williams  is  alone  guiltj'  of  this 
robbery.  It  appears  that  there  was  no  common  intent  to  steal  the 
keeper's  property.  The}'  went  out  with  a  common  intent  to  kill  game, 
and  perhaps  to  resist  the  keepers  ;  but  the  whole  intention  of  stealing 
the  property  is  confined  to  Williams  alone.  They  must  be  acquitted  of 
the  robbery.  Verdict,  Not  Guilty. 

1  See  Lamb  i'.  People,  96  111.  73  ;  People  v.  Ivnapp,  26  Mich.  112;  Mercersmith  v. 
State,  8  Tex.  App.  211  ;  Watts  v.  State,  5  W.  Va.  532.  —  Ed. 


SECT.  YI.]  PEOPLE  V.    KEEFER.  643 

PEOPLE  V.   KEEPER. 

Supreme  Court  of  Califorxia.    1884. 
[Repo)ted&o  Cal.  232]. 

McKiNSTRT,  J.^  Counsel  for  defendant  asked  the  court  to  charge 
the  jury :  — 

"If  3'ou  believe  from  the  evidence  that  the  defendant  James  Keefer 
was  not  present  when  the  Chinaman  Lee  Yuen  was  killed  b}-  Chapman, 
and  did  not  aid  and  abet  in  the  killing,  and  that  defendant,  at  the  time 
or  prior  to  the  killing,  had  not  conspired  with  Chapman  to  commit  the 
act,  and  that  he  had  not  advised  and  encouraged  Chapman  therein,  and 
that  the  killing  was  not  done  in  pursuance  of  any  conspiracy  between 
this  defendant  and  Chapman  to  rob  said  Chinaman,  and  that  this  de- 
fendant only  assisted  in  throwing  the  dead  body  of  the  Chinaman  into 
the  creek,  then  you  are  instructed  that,  under  the  indictment,  you  must 
find  the  defendant  not  guilt}-."' 

It  is  to  be  regretted  that  the  foregoing  instruction  was  not  given  to 
the  jury.  Of  course,  if  defendant  had  done  no  act  which  made  him 
responsible  for  the  murder,  the  mere  ftict  that  he  aided  in  concealing 
the  dead  body  would  render  him  liable  onl}-  as  accessory  after  the 
fact, —  an  offence  of  which  he  could  not  be  found  guilty  under  an  in- 
dictment for  murder.  However  incredible  the  testimony  of  defendant, 
he  was  undoubtedly  entitled  to  an  instruction  based  upon  the  hypothesis 
that  his  testimony  was  entirely  true. 

Assuming  the  testimony  of  defendant  to  be  true,  there  was  evidence 
tending  to  show  that  no  robl)ery  was  committed  or  attempted.  In 
robbery,  as  in  larcenN",  it  must  appear  that  the  goods  were  taken  anbno 
furandi  :  and  there  was  evidence  tending  to  prove  that  his  property 
was  not  taken  from  deceased  h(cri  causa,  or  with  intent  to  deprive  him 
of  it  permanentl}*.  So  also  there  was  evidence  tending  to  prove  that 
defendant  was  not  personally  present  at  the  killing,  and  that  the  killing 
was  not  done  in  pursuance  of  any  agreement  or  understanding  to  which 
defendant  was  a  party,  but  that  it  was  done  by  Chapman  without  the 
knowledge,  assent,  or  connivance  of  the  defendant. 

The  testimon}-  of  defendant  was  to  the  effect  that  he  did  not  advise 
or  encourage  Chapman  to  follow  and  tie  the  deceased.  But  even  if  we 
could  be  supposed  to  be  justified  in  deciding  the  fact,  in  holding  that 
his  conduct  conclusively  proved  —  notwithstanding  his  testimony'  to 
the  contrary' —  that  he  did  encourage  Chapman  in  his  purpose  to  follow 
and  tie  the  deceased,  such  encouragement  would  not,  of  itself,  make 
him  accessory  to  the  killing.  An  accessor}'  before  the  fact  to  a  robbery 
(or  any  other  of  the  felonies  mentioned  in  section  198  of  the  Penal 
Code),   although  not  present  when  the  felony  is   perpetrated  or  at- 

1  Part  of  the  opir  "on  is  on  itted.  —  Ec 


64-1  SPIES   V.   PEOPLE.  [chap.  X. 

tempted,  is  guilty  of  a  murder  committed  in  the  perpetration  or  attempt 
to  perpetrate  the  felony.  People  v.  Majors,  April  1,  1884.  This  is  by 
reason  of  the  statute,  and  because  the  law  superadds  the  intent  to  kill 
to  the  original  felonious  intent.  People  v.  Doyell,  48  Cal.  94.  ^  One 
who  has  only  advised  or  encouraged  a  misdemeanor,  however,  is  not 
necessarily  responsible  for  a  murder  committed  by  his  co-conspirator, 
not  in  furtherance,  but  independent  of  the  common  design.  1  Whart. 
Criiri.  Law,  §  229  and  note. 

In  the  case  at  bar,  if  defendant  simply  encouraged  the  tying  of  the 
deceased,  —  a  misdemeanor  which  did  not  and  probably  could  not  cause 
death  or  any  serious  injury,  —  as  the  killing  by  Chapman  was  neither 
necessarily  nor  probably  involved  in  the  battery  or  false  imprisonment, 
nor  incidental  to  it,  but  was  an  independent  and  malicious  act  with 
which  defendant  had  no  connection,  the  jury  were  not  authorized  to 
find  defendant  guilty  of  the  murder,  or  of  manslaughter.  If  the  de- 
ceased had  been  strangled  by  the  cords  with  which  he  had  been  care- 
lessly or  recklessly  bound  by  Chapman,  or  had  died  in  consequence  of 
exposure  to  the  elements  while  tied,  defendant  might  have  been  held 
liable.  But,  if  the  testimony  of  defendant  was  true,  —  and,  as  we  have 
said,  he  was  entitled  to  an  instruction  based  upon  the  assumption  that 
the  facts  were  as  he  stated  them  to  be,  —  the  killing  of  deceased  was 
an  independent  act  of  Chapman,  neither  aided,  advised,  nor  encouraged 
by  him,  and  not  involved  in  nor  incidental  to  any  act  by  him  aided, 
advised,  or  encouraged.     The  court  erred  in  refusing  the  instruction. 


SPIES   V.    PEOPLE. 

Supreme  Court  of  Illinois.     1887. 

[Reported  122  ///.  1.] 

Magruder,  J.,^  delivered  the  opinion  of  the  Court: 

This  case  comes  before  us  by  writ  of  error  to  the  Criminal  Court  of 
Cook  county.     The  writ  has  been  made  a  siqjersedeas. 

Plaintiffs  in  error  were  tried  in  the  summer  of  1886  for  the  murder 
of  Matthias  J.  Began,  on  May  4,  1886,  in  the  city  of  Chicago,  Cook 
county,  Illinois.  On  August  20,  1886,  the  jury  returned  a  verdict 
finding  the  defendants,  August  Spies,  Michael  Schwab,  Samuel  Fielden, 
Albert  R.  Parsons,  Adolph  Fischer,  George  Engel,  and  Louis  Lingg, 
guilt}'  of  murder,  and  fixing  death  as  the  penalty.  B3'  the  same  ver- 
dict they  also  found  Oscar  W.  Neebe  guilty  of  murder  and  fixed  the 
penalty  at  imprisonment  in  the  penitentiary  for  fifteen  years. 

About  the  1st  day  of  May,  1886,  the  workingmen  of  Chicago  and  of 
other  industrial  centres  in  the  United  States  were  greatly  excited  upon 
the  subject  of   inducing   their   employers   to  reduce  the  time  during 

1  Part  of  the  opinion  only  is  given.  — Ed. 


SECT.  VI.]  SPIES   V.    PEOPLE.  645 

wliicli  they  should  be  required  to  labor  on  each  day  to  eight  hours. 
In  the  midst  of  the  excitement  growing  out  of  this  eight-hour  move- 
ment, as  it  was  called,  a  meeting  was  held  on  the  evening  of  May  4, 
1886,  at  the  Haymarket,  on  Randolph  street,  in  the  West  division  of 
the  cit}'  of  Chicago.  This  meeting  was  addressed  by  the  defendants 
Spies,  Parsons,  and  Fielden.  While  the  latter  was  making  the  clos- 
ing speech,  and  at  some  point  of  time  between  ten  and  half-past  ten 
o'clock  in  the  evening,  several  companies  of  policemen,  numbering  one 
hundred  and  eighty  men,  marched  into  the  crowd  from  their  station  on 
Desplaines  street,  and  ordered  the  meeting  to  disperse.  As  soon  as 
the  order  was  given,  some  one  threw  among  the  policemen  a  dynamite 
bomb  which  struck  Began,  who  was  one  of  the  police  officers,  and 
killed  him.  As  the  result  of  the  throwing  of  the  bomb  and  of  the 
firing  of  pistol  shots,  which  immediately  succeeded  the  throwing  of  the 
bomb,  six  policemen  besides  Began  were  killed,  and  sixty  more  were 
seriously  wounded. 

It  is  undisputed  that  the  bomb  was  thrown  and  that  it  caused  the  death 
of  Began.  It  is  conceded  that  no  one  of  the  convicted  defendants 
threw  the  bomb  with  his  own  hands.  Plaintiffs  in  error  are  charged 
with  being  accessories  before  the  fact.  There  are  sixty-nine  counts  in 
the  indictment.  Some  of  the  counts  charge  that  the  eight  defendants 
above  named,  being  present,  aided,  abetted,  and  assisted  in  the  throw- 
ing of  the  bomb  ;  others,  that,  not  being  present,  aiding,  abetting  or 
assisting,  they  advised,  encouraged,  aided,  and  abetted  such  throwing. 
Some  of  the  counts  charge  that  said  defendants  advised,  encouraged, 
aided,  and  abetted  one  Rudolph  Schnaubelt  in  the  perpetration  of  the 
crime ;  others  that  they  advised,  encouraged,  aided,  and  abetted  an  un- 
known person  in  the  perpetration  thereof. 

The  Illinois  statute  upon  this  subject  is  as  follows  (chap.  38,  div.  2, 
sees.  2  and  3)  : 

"Sec.  2.  An  accessory  is  he  who  stands  by,  and  aids,  abets,  or 
assists,  or  who,  not  being  present,  aiding,  abetting,  or  assisting,  hath 
advised,  encouraged,  aided,  or  abetted  the  perpetration  of  the  crime. 
He  who  thus  aids,  abets,  assists,  advises,  or  encourages  shall  be  con- 
sidered as  principal,  and  punished  accordinglj*. 

"  Sec.  3.  Every  such  accessor}-,  when  a  crime  is  committed  within 
or  without  this  State,  by  his  aid  or  procurement  in  this  State,  may  be 
indicted  and  convicted  at  the  same  time  as  the  principal,  or  before,  or 
after  his  conviction,  and  whether  the  principal  is  convicted  or  amena- 
ble to  justice  or  not,  and  punished  as  principal." 

This  statute  abolishes  the  distinction  between  accessories  before  the 
fact  and  principals  ;  by  it  all  accessories  before  the  fact  are  made  prin- 
cipals. As  the  acts  of  the  principal  are  thus  made  the  acts  of  the  ac- 
cessor}', the  latter  ma}'  be  charged  as  having  done  the  acts  himself, 
and  may  be  indicted  and  punished  accordingly.  Baxter  v.  People,  3 
Gilm.  368;  Bempsey  v.  People,  47  111.  323. 

If,  therefore,  the  defendants  advised,  encouraged,  aided,  or  abetted 


646  SPIES    V.    PEOPLE.  [chap,  X. 

the  killing  of  Degan,  they  are  as  guilty  as  though  they  took  his  life 
with  their  own  hands.  If  any  of  them  stood  by  and  aided,  abetted,  or 
assisted  in  the  throwing  of  the  bomb,  those  of  them  who  did  so  are  as 
guilty  as  though  they  threw  it  themselves. 

It  is  charged  that  the  defendants  formed  a  common  purpose,  and 
were  united  in  a  common  design  to  aid  and  encourage  the  murder  of 
the  policemen  among  whom  the  bomb  was  thrown.  If  they  combined 
to  accomplish  such  murder  by  concerted  action,  the  ordinary  law  of 
conspiracy  is  applicable,  and  the  acts  and  declarations  of  one  of  them, 
done  in  furtherance  of  the  common  design,  are,  in  contemplation  of 
law,  the  acts  and  declarations  of  all.  This  prosecution,  however,  is 
not  for  conspiracy  as  a  substantive  crime.  Proof  of  conspiracy  is  only 
proper  so  far  as  it  may  tend  to  show  a  common  design  to  encourage 
the  murder  charged  against  the  prisoners.  It  may  be  introduced  for  the 
purpose  of  establishing  the  position  of  the  members  of  the  combination 
as  accessories  to  the  crime  of  murder. 

The  questions  which  thus  present  themselves  at  the  threshold  of 
the  case  are  these  :  Did  the  defendants  have  a  common  purpose  or 
design  to  advise,  encourage,  aid,  or  abet  the  murder  of  the  police?  Did 
thev  combine  together  and  with  others  with  a  view  to  carrying  that 
purpose  or  design  into  effect?  Did  they  or  either  or  any  of  them  do 
such  acts  or  make  such  declarations  in  furtherance  of  the  common  pur- 
pose or  design  as  did  actually  have  the  effect  of  encouraging,  aiding, 
or  abetting  the  crime  in  question?  .  .  . 

It  is  apparent  from  this  review  of  the  evidence  that  just  such  an  at- 
tack was  made  at  the  Haymarket  as  was  contemplated  and  arranged  for 
by  the  conspiracy  of  Monday  night.  First,  a  bomb  was  thrown  among 
the  policemen  ;  next,  shots  were  fired  into  their  ranks  by  armed  men, 
belonging  to  the  organization  heretofore  described  and  who  had  been 
gathered  around  the  wagon  during  the  evening.  In  the  order  of  time, 
the  shooting  occurred  a  few  seconds  after  the  bomb  exploded.  This 
was  the  order  in  wliich  the  onset  with  the  two  different  kinds  of. 
weapons  was  to  be  made,  according  to  the  terms  of  the  conspiracy. 
The  mode  of  attack  as  made  corresponded  with  the  mode  of  attack 
as  planned. 

It  is  true  that  the  plan  adopted  contemplated  the  throwing  of  a 
bomb  into  each  station  and  then  shooting  down  the  police,  as  they 
should  come  out.  This  was  to  be  done,  however,  not  only  at  the 
North  avenue  station,  but  at  the  stations  "  in  other  parts  of  the  city." 
The  Desplaines  street  station  was  a  station  ?n  one  of  the  "other 
parts  of  the  city,"  and  was  as  much  embraced  within  the  scope  of  the 
plan  as  the  rest  of  the  stations.  It  was  in  sight  of  the  speakers' 
wagon,  and  onlj'  a  short  distance  south  of  it.  If  a  bomb  had  been 
thrown  into  the  station  itself  and  the  policemen  had  been  shot  down 
while  coming  out,  a  part  of  the  conspiracy  would  have  been  literally 
■  executed  just  as  it  was  agreed  upon.  It  could  make  no  difference  in 
the    guilt  of  those  who  were  parties  to  the  conspiracy  that  the  man 


SECT.  VI.]  SPIES   V.   PEOPLE.  647 

who  threw  the  bomb  and  his  confederates  who  fired  the  shots  waited, 
before  doing  their  work,  until  the  policemen  in  the  station  had  left  it 
and  had  advanced  some  three  hundred  feet  north  of  it. 

If  A  hire  B  to  shoot  C  at  the  Sherman  House  in  the  cit^'  of  Chicago 
on  a  certain  night,  but  B,  seeing  C  enter  the  Tremont  House  on  the 
same  night,  shoots  him  there,  A  is  none  the  less  guilty  of  aiding, 
abetting,  advising,  and  encouraging  the  murder  of  C.  If  there  is 
a  conspiracy  to  kill  policemen  at  a  station  house,  but  the  agents  of  the 
conspirac}'  kill  the  policemen  a  short  distance  away  from  the  station 
house,  there  is  no  such  departure  from  the  original  design  as  to  relieve 
the  conspirators  of  responsibilit}'. 

A  plan  for  the  perpetration  of  a  crime  or  for  the  accomplishment  of 
any  action,  whether  wortliy  or  unworthy,  can  not  always  be  executed 
in  exact  accordance  with  the  original  conception.  It  must  suffer  some 
change  or  modification  in  order  to  meet  emergencies  and  unforeseen 
contingencies.  .  .  . 

The  jur}^  were  warranted  in  believing  from  the  evidence  that  the 
plaintiff  in  error,  Louis  Lingg,  was  a  party  to  the  Monda}'  night 
conspiracy.  .  .  . 

Here  is  a  man,  connected  with  a  certain  organization,  engaged  in 
arming  and  drilling  for  a  conflict  with  the  police.  He  is  experimenting 
with  dynamite  and  in  the  construction  of  bombs  under  the  direction  of 
armed  members  of  that  organization.  He  makes  bomb  shells,  fills 
them  with  dynamite,  takes  them  to  the  meeting  place  of  armed  mem- 
bers of  that  organization,  puts  them  where  access  to  them  can  be 
easily  had,  using  such  precautions  as  such  dangerous  explosives  natu- 
rally require.  At  once,  certain  of  these  armed  members,  such  as  the 
two  large  men  of  the  Lehr  und  Wehr  Verein  already  spoken  of,  come 
forward  and  take  bombs  and  go  their  several  wa^'s.  In  a  little  more 
than  an  hour  afterwards,  one  of  these  very  bombs  is  thrown  into  a 
crowd  of  policemen  and  explodes  and  kills  one  of  them.  Was  not  the 
conduct  of  this  man,  who  thus  cooll}'  and  carefull}'  prepared  the 
weapons  for  one  definite  class  of  men  to  use  in  the  murder  of  another 
definite  class  of  men,  marked  bj-  "deliberation,"  as  that  term  is  defined 
in  the  authorities? 

It  was  a  fair  conclusion  from  the  evidence  that  Lingg  knew  that  the 
bombs  he  was  making  would  be  thrown  among  the  police.  It  was  a 
fair  conclusion  from  the  evidence  that  he  intended  the  bombs  ho 
placed  in  the  hall-way  to  be  used  by  the  members  of  the  International 
groups,  not  onl^'  in  the  interest  of  the  general  movement  against  the 
police  with  which  he  was  connected,  but  in  the  interest  of  the  particu- 
lar conspiracy  that  was  concocted  on  Monday  night. 

Even  if  he  did  not  know  the  name  of  the  particular  individual  who 
was  to  throw  the  bomb,  he  knew  that  it  would  be  thrown  by  some 
one  belonging   to  the  sections  or  groups  already  described,  and  this 


648  SPIES   V.   PEOPLE.  [chap,  X. 

was  sufficient  to  affect  him  witli  the  guilt  of  advising,  encouraging,  aid- 
ing, or  abetting  the  crime  charged  in  the  indictment. 

He  ma}'  not  have  known  what  particular  policeman  would  be  killed, 
whether  Matthias  J.  Degan,  or  another.  But  when  he  opened  the  . 
loaded  satchel  at  Neff's  Hall  on  Tuesda}'  night,  that  act,  viewed  in  the 
light  of  all  the  antecedent,  attendant,  and  subsequent  occurrences,  was 
virtually  a  designation  of  the  body  or  class  of  men  who  were  to  be 
attacked.  When  one  of  such  class  was  killed,  the  guilt  was  the  same 
as  though  a  person  bearing  a  particular  name  had  been  pointed  out  as 
the  victim. 

Even  if  he  did  not  know  that  one  of  the  bombs  would  be  thrown  on 
that  evening  at  a  particular  place  called  the  Haymarket,  it  was  suflS- 
cient  that  he  knew  it  was  to  be  used  at  that  point  in  the  city,  where 
a  collision  should  occur  between  the  workingmen  and  the  police. 
Such  a  collision  did  occur  at  the  Haymarket.  .  .  . 

(  Fielden : 

There  is  evidence  of  a  very  distinct  and  positive  character  that 
Fielden  shot  at  the  police.  .  »  . 

It  is  true  that  Degan  was  killed  b}'  the  bomb  that  was  thrown  and 
not  b}'  the  shots  that  were  fired.  But  the  attack  at  the  Haymarket 
was  a  joint  attack  made  by  a  number  of  persons  with  two  different 
kinds  of  weapons  in  pursuance  of  a  previousl}'  arranged  conspiracy'. 
When  Fielden  lent  himself  to  the  execution  of  that  conspiracy  by  par- 
ticipating in  the  joint  attack,  he  was  just  as  guilty  of  the  murder 
of  Degan  by  reason  of  firing  his  pistol  as  though  he  had  thrown  the 
bomb.  If  the  man  who  threw  the  bomb  and  the  twenty  men  whom 
officer  Hanle}'  saw  running  into  the  allej'  had  stood  up  together  and 
the  one  had  thrown  his  bomb  and  the  others  had  fired  their  shots  all  at 
the  same  time  into  the  ranks  of  the  police,  and  one  of  the  policemen 
had  at  once  fallen  dead,  would  not  each  of  the  twenty  men  have  been 
as  responsible  as  the  bomb  thrower  for  the  death  'of  the  man  killed, 
whether  such  death  was  caused  by  the  bomb  or  b}'  the  shots  ?  All  had 
the  murderous  intent.  All  were  using  deadly  weapons  in  pursuance  of 
a  common  design  to  destroy  life.  The  conduct  of  Fielden  at  the  Ha}'- 
market,  considered  in  connection  with  his  acts  prior  thereto  and  with 
all  the  other  facts,  as  herein  set  forth,  certainlj'  warranted  the  jury  in 
finding  that  he  was  one  of  the  conspirators. 

Parsons : 

The  jury  were  warranted  in  believing  from  the  evidence  that  the 
defendant  Parsons  was  associated  with  the  man  who  threw  the  bomb 
and  the  men  who  fired  the  shots  at  the  Haymarket,  in  a  conspiracy'  to 
bring  about  a  social  revolution  in  Chicago  by  force  on  or  about  May  1, 
1886,  or,  in  other  words,  to  destroy  ths  police  and  militia  on  or  about 
that  date  with  bombs  and  revolvers  or  rifles.     It  is  well  settled  that, 


SECT.  VI.]  SPIES   V.    PEOPLE.  649 

when  the  fiict  of  a  conspiracy  is  once  established,  any  act  of  one  of  the 
cousiiirators  in  the  prosecution  of  the  enterprise  is  considered  the  act 
of  all.  Nudd  V.  Burrows,  91  U.  S.  426  ;  1  Wharton's  Am.  Crim.  Law 
(6th  ed.),  sec.  702;  3  Greenleaf  on  P^vidence,  sec.  94. 

It  makes  no  difference,  that  Parsons  may  not  have  been  present  in 
the  basement  of  Griefs  Hall  when  the  Monday  night  conspiracy  was 
planned.  He  belonged  to  the  armed  sections,  whose  representatives 
entered  into  that  conspiracy  and  was  one  of  the  absent  meml)crs,  who 
were  to  be  informed  of  its  provisions.  One  of  those  provisions  was 
the  holding  of  a  meeting  at  the  Haymarket.  Wlien  he  went  to  that 
meeting  in  obedience  to  a  summons  from  Rau,  and  there  made  an  in- 
cendiary speech,  he  joined  the  others  in  their  execution  of  the  con- 
spiracy and  thereby  became  a  party  to  it.  "  Individuals  who,  though 
not  specifically  parties  to  the  killing,  are  present  and  consenting  to  the 
assemblage,  by  whom  it  is  perpetrated,  are  principals  when  the  killing 
is  in  pursuance  of  the  common  design."  Wharton  on  Homicide  (2d 
ed.),  sec.  201  ;  Wharton's  Am.  Law  of  Homicide,  345,  346,  etc.  ; 
Regina  v.  Jackson,  7  Cox,  C.  C.  357  ;  Commonwealth  v.  Daley,  4 
Pa.  L.  J.  150. 

The  plan  adopted  on  Monday  night  was  merel}-  a  specific  mode  of 
carrying  out  the  more  general  conspiracy  to  which  Parsons  and  those 
present  on  Monday  night  were  all  parties.  The  adoption  of  the  Mon- 
day night  plot  was  the  act  of  those  wlio  were  co-conspirators  with 
Parsons.  It  was  therefore  his  act.  He  had  advised  the  use  of  bombs 
and  arms  against  the  police  on  or  about  May  1.  The  men  who  met 
Monday  night  merely  indicated  more  specifically  the  time  when  and 
places  where  and  mode  in  which  such  bombs  and  arms  should  be  used, 
so  as  to  be  most  effective.  "  A  man  may  be  guilty  of  a  wrong  which 
he  did  not  specifically  intend,  if  it  came  naturally  or  even  accidentally 
from  some  other  specific,  or  a  general,  evil  purpose.  When,  therefore, 
persons  combine  to  do  an  unlawful  thing,  if  the  act  of  one  proceeding 
according  to  the  common  plan  terminates  in  a  criminal  result,  though 
not  the  particular  result  meant,  all  are  liable."  1  Bishop  on  Crim. 
Law,  636,   and  cases  cited. 

''  There  might  be  no  special  malice  against  the  party  slain,  nor  delib- 
erate intention  to  hurt  him  ;  but  if  the  fact  was  committed  in  prose- 
cution of  the  original  purpose,  which  was  unlawful,  the  whole  party 
will  be  involved  in  the  guilt  of  him  who  gave  the  blow."  (Foster, 
p.  351,  sec.  6.)  "  Where  there  is  a  conspiracy  to  accomplish  an  un- 
lawful purpose,  and  the  means  are  not  specifically  agreed  upon  or 
understood,  each  conspirator  becomes  responsible  for  the  means  used 
by  an}'  co-conspirator  in  the  accomplishment  of  the  purpose  in  which 
they  are  all  at  the  time  engaged."     State  v.  McCahill,  72  Iowa,  111. 

He  who  enters  into  a  combination  or  conspiracy  to  do  such  an  un- 
lawful act  as  will  probably  result  in  the  unlawful  taking  of  human  life, 
must  be  presumed  to  have  understood  the  consequences  which  might 
reasonably-  be  expected  to  flow  from  carrying  it  into  effect,  and  also  to 


g50  SPIES   V.   PEOPLE.  [CIIAP.  X. 

have  assented  to  the  doing  of  whatever  would  reasonably  or  probably 
be  necessary  to  accomplish  the  objects  of  the  conspiracy,  even  to  the 
taking  of  life.  1  Wharton  on  Crim.  Law  (9th  ed.),  sec.  225  a  ;  Bren- 
nan  et  al.  v.  The  People,  15  111.  511  ;  Hanna  v.  The  People,  86  id.  243  ; 
Lamb  y.  The  People,  96  id.  74. 


Instruction. 

According  to  the  theory  of  this  instruction/  the  defendants  conspired 
to  excite  certain  classes  to  tumult,  riot,  use  of  weapons,  and  taking  of 
life,  "as  a  means  to  carry  their  designs  and  purposes  into  effect." 
The  instruction  does  not  specify  what  those  designs  and  purposes  are, 
because  they  had  been  stated  in  the  two  preceding  instructions  to  be 
the  bringing  about  of  a  social  revolution  and  the  destruction  of  the 
authorities  of  the  city.  Tbe  ordinary  workingman  had  two  purposes 
in  view,  first,  to  get  an  eight-hour  day  of  labor,  second,  to  keep  the 
police  from  interfering  to  protect  non-union  laborers  against  strikers. 
The  defendants  in  this  case  cared  nothing  about  the  eight-hour  move- 
ment or  the  contentions  between  union  and  non-union  men.  They 
looked  beyond  to  the  social  revolution.  They  sought  to  make  use 
of  the  excitement  among  the  workingmen  over  the  eight  hour  move- 
ment and  over  the  attacks  of  police  upon  strikers,  in  order  to  create 
riot  and  tumult  and  thus  precipitate  the  social  revolution.  The  stirring 
up  of  riot  and  tumult  was  with  them  a  means  to  an  end.  There  is 
testimony  tending  to  support  this  view.  The  men  who  excited  the 
tumult  and  riot  by  print  and  speech  may  have  had  a  different  end  in 
view  from  that  sought  by  the  classes  whom  they  so  excited.     But  they 

1  If  these  defendants,  or  any  two  or  more  of  them,  conspired  together,  with  or  not 
with  any  other  person  or  persons,  to  e.xcite  the  people  or  classes  of  the  people  of  this 
city  to  sedition,  tumult,  and  riot,  to  use  deadly  weapons  against  and  take  the  lives  of 
other  persons,  as  a  means  to  carry  their  designs  and  purposes  into  effect,  and  in  pur- 
suance of  such  conspiracy,  and  in  furtherance  of  its  objects,  any  of  the  persons  so 
conspiring,  publicly,  by  print  or  speech,  advised  or  encouraged  the  commission  of 
murder,  without  designating  time,  place,  or  occasion  at  which  it  should  be  done,  and  in 
pursuance  of,  and  induced  by  such  advice  or  encouragement,  murder  was  committed, 
then  all  of  such  conspirators  are  guilty  of  such  murder,  whether  tlie  person  who  per- 
petrated such  murder  can  be  identified  or  not.  If  such  murder  was  committed  in  pur- 
suance of  sucli  advice  or  encouragement,  and  was  induced  thereby,  it  does  not  matter 
what  change,  if  any,  in  the  order  or  condition  of  society,  or  what,  if  any,  advantage  to 
themselves  or  others  the  conspirators  proposed  as  the  result  of  their  conspiracy;  nor 
does  it  matter  whether  such  advice  and  encouragement  had  been  frequent  and  long- 
continued  or  not,  except  in  determining  whether  tlie  perpetrator  was  or  was  not  acting 
in  pursuance  of  such  advice  or  encouragement,  and  was  or  was  not  induced  thereby  to 
commit  the  murder.  If  there  was  such  conspiracy  as  in  this  instruction  is  recited, 
such  advice  or  encouragement  was  given,  and  murder  committed  in  pursuance  of  and 
induced  thereby,  then  all  such  conspirators  are  guilty  of  murder.  Kor  does  it  matter, 
if  there  was  such  a  conspiracy,  how  impracticable  or  impossible  of  success  it.s  end  and 
aims  were,  nor  how  foolish  nor  ill-arranged  were  the  plans  for  its  execution,  except 
as  bearing  upon  the  question  whether  there  was  or  was  not  such  conspiracy. 


SECT.  VI.]  PEOPLE  V.    ELDEK.  G51 

were  none  the  less  responsible  for  murder  that  resulted  from  their  aid 
and  encouragement. 

If  the  defendants,  as  a  means  of  bringing  about  Die  social  revolution 
and  as  a  part  of  the  larger  conspirac}'  to  effect  such  revolution,  also 
conspired  to  excite  classes  of  workingmen  in  Chicago  into  sedition, 
tumult,  and  riot  and  to  the  use  of  deadly  weapons  and  the  taking 
of  human  life,  and  for  the  purpose  of  producing  such  tumult,  riot,  use 
of  weapons,  and  taking  of  life,  advised  and  encouraged  such  classes  by 
newspaper  articles  and  speeches  to  murder  the  authorities  of  the  city, 
and  a  murder  of  a  policeman  resulted  from  such  advice  and  encourage- 
ment, then  defendants  are  responsible  therefor. 

Judgment  affirmed. 


PEOPLE  V.  ELDER. 

SupREMK  Court  of  Michigan.     1894. 

[Reported  100  Mich.  515.] 

Hooker,  J.  Respondent  appeals  from  a  conviction  of  manslaugh- 
ter. He  was  a  bartender,  and,  in  an  altercation  with  the  deceased, 
struck  him  and  knocked  him  down,  whereupon  one  Nixon,  a  bystander, 
kicked  him,  from  which  kick  death  resulted.  The  theory  of  the  prosecu- 
tion was  that  there  was  preconcert  of  action  on  the  part  of  Nixon  and 
the  respondent.  The  respondent  denies  this;  claiming  that  he  had 
no  reason  to  expect  anj'  assistance  from  Nixon,  or  to  anticipate  his 
interference,  and  that  he  did  not  induce  it. 

In  his  charge  to  the  jury,  the  trial  judge  said,  "On  the  part  of  the 
defendant,  I  give  you  the  instructions  which  I  now  read."  This  was 
followed  by  the  reading  of  several  requests,  in  which  the  law  was 
stated  correctl}-  upon  the  subject.     The  fifth  was  as  follows : 

"  If  it  shall  appear  to  you  from  the  evidence  that  Elder  did  not  him- 
self inflict  the  blow  or  do  the  injury  which  resulted  in  the  death  of 
Lowden,  and  that  Nixon,  by  his  own  motion,  while  the  encounter 
between  Elder  and  Lowden  was  going  on,  rushed  in,  uninvited  b}'  Elder, 
and  inflicted  the  injuries  which  produced  Lowden's  death,  then  you 
must  acquit  the  prisoner." 

To  this  the  court  added  as  follows  : 

'■'  Unless  you  find  that  his  assault  upon  Lowden  contributed  and  pro- 
duced the  conditions  that  deprived  the  deceased  of  the  power  of  resist- 
ance, and  enabled  Nixon  the  better  to  inflict  great  bodily  injury  on  the 
deceased,  if  you  find  that  the  cause  of  death  was  the  wounds  or  injury 
he  received  on  that  occasion." 

The  requests  upon  the  part  of  the  respondent  were  followed  liy  those 
of  the  prosecution,  twenty-two  in  number,  most  of  which  were  given,  and 
which  seem  to  have  concluded  the  charge.     The  first  was  as  follows : 


652 


PEOPLE   V.   ELDER.  [CHAP.  X. 


"If you  find  that  the  respondent  assaulted  Lowden,  and  felled  him 
to  the  floor,  putting  the  body  of  the  deceased  in  such  a  position  that 
he  was  helpless  to  protect  himself  from  Nixon,  and  rendered  it  possible 
for  Nixon  to  kick  him,  such  act  upon  the  respondent's  part  was  unlaw- 
ful ;  and  if  decedent's  death  was  caused  by  the  defendant's  act,  the 
kicking  given  by  Nixon,  or  both  combined,  then  they  are  equally  guilty 
of  the  death  caused." 

This  request,  and  the  addition  to  respondent's  fifth  request,  were  in 
direct  contradiction  of  the  earlier  requests  given  upon  respondent's 
part,  wherein  the  jury  were  instructed  that  the  respondent  could  not  be 
convicted  if  the  death  was  caused  by  acts  of  Nixon,  for  which  respond- 
ent was  not  responsible,  and  which  he  did  not  induce  or  anticipate. 
The  discussion  of  this  subject,  which  appears  to  have  been  the  impor- 
tant point  in  the  case,  was  left  with  the  requests  and  the  addition 
wliicli  has  been  mentioned. 

We  fear  that  the  jurors  were  misled  by  the  first  request  of  the  prose- 
cution, which  in  plain  terras  told  them  they  might  convict  the  respond- 
ent if  he  had  "assaulted  Lowden  and  felled  hbn  to  the  floor,  putting 
his  body  in  such  a  position  that  he  was  helpless  to  protect  himself  from 
Nixon,  and  rendered  it  possible  for  Nixon  to  kick  him,"  if  such  kick 
caused  death.  Equally  faulty  was  the  implication  contained  in  the 
addition  to  respondent's  fifth  request,  —  that  if  respondent's  assault 
"  deprived  the  deceased  of  the  power  of  resistance,  and  enabled  Nixon 
the  better  to  inflict  great  bodily  injury  on  the  deceased,"  a  conviction 
might  follow. 

The  case  of  People  v.  Carter,  96  Mich.  583,  which  seems  to  have 
been  relied  upon  by  the  prosecution,  was  quite  a  different  case  from 
this.  In  that  case  the  respondent  felled  the  deceased  by  a  blow  while 
he  was  engaged  in  a  fight  with  another,  whereupon  that  olher  immedi- 
ately kicked liira.  It  was  held  that  if  the  jury  could  find  that  the  re- 
spondent volunteered  to  aid  another  in  his  fight,  for  the  purpose  of 
aiding  him  to  whip  the  deceased,  they  were  joint  wrong-doers,  respon- 
sible for  each  other's  acts.  In  this  case  the  respondent's  contention 
was  that  he  was  not  a  volunteer  in  another's  cause,  but  that  the  other 
volunteered  in  his,  without  his  request  or  expectation.  He  was  entitled 
to  have  his  theory  properly  submitted  to  the  jury. 

The  judgment  must  be  reversed,  and  a  new  trial  ordered. 

The  other  Justices  concurred. 


SECT.  VI.J  -   STATE  V.    TAYLOR.  653 


STATE  V.  TAYLOR. 

Supreme  Court  of  Vermont.     1896. 

[Reported  70  Vt.  1.] 

Indictment  for  an  assault  with  intent  to  kill  and  murder.  Trial  by 
jury  at  the  INIay  Term,  1895,  Windsor  County,  Taft,  J.,  presiding. 
Verdict  and  judgment  of  guilty,  and  sentence  imposed  at  the  respond- 
ents' request.     The  respondents  excepted. 

MuNSON,  J.^  The  alleged  assault  was  committed  upon  Paul  Tinkham, 
constable  of  Rochester,  and  three  persons  acting  under  him,  while  they 
were  effecting  an  arrest  of  the  respondents  and  two  others,  without  a 
warrant,  on  suspicion  of  felony. 

We  think  there  was  also  error  in  the  instruction  given  as  to  the 
liability  of  all  for  the  act  of  one.  The  court  charged  in  substance  that 
if  the  four  persons  whom  the  officers  were  attempting  to  arrest  were 
acting  together  witli  a  common  purpose  of  resisting  arrest,  and  any  one 
of  the  four  shot  an  officer  in  the  execution  of  that  design  and  with  an 
intent  to  kill,  and  the  other  three  were  present,  assisting  in  the  assault, 
all  would  be  guilty  of  an  assault  with  that  intent.  Assuming  that  the 
charge  as  a  whole  was  sufficient  to  require- the  finding  of  an  actual  in- 
tent to  take  life  on  the  part  of  one,  it  will  be  seen  that  the  liability  of 
the  others  for  an  assault  with  intent  to  take  life  is  made  to  depend 
solely  upon  the  illegality  of  the  resistance.  It  is  doubtless  true  that 
if  all  were  combined  for  an  unlawful  resistance  to  the  officers,  and  an 
officer  had  been  killed  by  one  of  their  number,  all  would  have  been 
guiltj'  of  the  killing.  But  no  one  was  killed  ;  and  the  liability  of  the 
actual  assailant,  other  than  for  a  simple  assault,  depended  upon  the 
existence  of  a  specific  intent  to  kill.  We  think  the  jury  could  not  be 
permitted  to  return  a  verdict  of  guilt}'  of  an  assault  with  intent  to  mur- 
der against  all,  on  the  mere  finding  of  a  common  purpose  to  resist 
arrest.  It  would  doubtless  be  different  if  it  were  found  that  they  acted 
upon  a  common  understanding  that  they  would  do  whatever  might  be 
necessary  to  avoid  arrest. 

1  Ouly  so  much  of  the  case  as  discusses  the  guilt  of  the  accomplices  is  given. — Ed. 


(^54:  CKIMES   AGAINST   THE  PERSON.  [CHAP.  XI. 


CHAPTER   XL 
CRIMES   AGAINST  THE  PERSON. 


SECTION   I. 

General  Principles. 

1  Hale,  Pleas  of  the  Crown,  425.  To  make  up  the  crime  of  homicide 
or  murder  there  must  be  these  three  concurring  circumstauces  :  — 

I.  The  part}'  must  be  killed.  Anciently  indeed  a  barbarous  assault 
with  an  intent  to  murder,  so  that  the  party  was  left  for  dead,  but  j-et 
recovered  again,  was  adjudged  murder  and  petit  treason  (15  E.  2,  Coron. 
383) ;  but  that  holds  not  now,  for  the  stroke  without  the  death  of  the 
party  stricken,  nor  the  death  without  the  stroke  or  other  violence 
makes  not  the  homicide  or  murder,  for  the  death  consummates  the 
crime.  .  .   . 

Now  what  shall  be  said  a  killing  and  death  within  the  year  and 
day?  ... 

If  a  man,  either  b}-  working  upon  the  fancy  of  another  or  possibly  by 
harsh  or  unkind  usage,  puts  another  into  such  passion  of  grief  or  fear 
tliat  the  part}-  either  dies  suddenly,  or  contracts  some  disease  whereof 
he  dies,  though,  as  the  circumstances  of  the  case  may  be,  this  may  be 
murder  or  manslaughter  in  tlie  sight  of  God,  yet  in  foro  hiimano  it 
cannot  come  under  the  judgment  of  felony,  because  no  external  act  of 
violence  was  offered  whereof  the  common  law  can  take  notice,  and 
secret  things  belong  to  God  ;  and  hence  it  was,  that  before  the  statute 
of  1  Jac.  cap.  12,  witchcraft  or  fascination  was  not  felon}',  because  it 
wanted  a  trial,  though  some  constitutions  of  the  civil  law  make  it 
penal.   .   .  . 

There  are  several  ways  of  killing :  1.  By  exposing  a  sick  or  weak  per- 
son or  infant  unto  the  cold  to  the  intent  to  destroy  him  (2  E.  3,  18  b), 
whereof  he  dieth.  2.  By  laying  an  impotent  person  abroad,  so  that  he 
may  be  exposed  to  and  receive  mortal  harm  ;  as  laying  an  infant  in  an 
orchard  and  covering  it  with  leaves,  whereby  a  kite  strikes  it,  and  kills 
it.  6  Eliz.,  Crompt.  de  Pace  24 ;  Dalt.  ch.  93.  3.  By  imprisoning  a 
man  so  strictly  that  he  dies,  and  therefore  where  any  dies  in  gaol,  the 
coroner  ought  to  be  sent  for  to  enquire  the  manner  of  his  death.  4.  B}' 
starving  or  famine.  5.  By  wounding  or  blows.  6.  By  poisoning.  7. 
By  laying  noisome  and  poisonous  filth  at  a  man's  door,  to  the  intent  by 


SECT.  I.]  ClUMES   AGAINST   THE   PEllSON.  655 

a  poisonous  air  to  poison  him  (Mr.  Dalton,  ch.  93,  out  of  Mr.  Coke's 
reading).     8.  By  strangling  or  suffocation.     Moriendi  millejigurae. 

A  man  infected  witli  the  plague,  having  a  plague-sore  running  upon 
him,  goes  abroad  ;  this  is  made  felony  by  the  statute  of  1  Jac.  cap.  31,  but 
is  now  discontinued  ;  but  what  if  such  person  goes  abroad,  to  the  intent 
to  infect  another,  and  another  is  thereby  infected  and  dies?  Whether 
this  be  not  murder  by  the  common  law  might  be  a  question  ;  but  if  no 
such  intention  evidently  appears,  though  de  facto  by  his  conversation 
another  be  infected,  it  is  no  felony  by  the  common  law,  though  it  be  a 
great  misdemeanor  ;  and  the  reasons  are  :  1.  Because  it  is  hard  to  dis- 
cern whether  the  infection  arise  from  the  party  or  from  the  contagion 
of  the  air, —  it  is  God's  arrow  ;  and  2.  Nature  prompts  every  man,  in  what 
condition  soever,  to  preserve  himself,  which  cannot  be  well  without 
mutual  conversation.  3.  Contagious  diseases,  as  plague,  pestilential 
fevers,  small-pox,  &c.,  are  common  among  mankind  by  the  visitation ; 
and  the  extension  of  capital  punishments  in  cases  of  this  nature  would 
multiply  severe  punishments  too  far,  and  give  too  great  latitude  and 
loose  to  severe  punishments. 

II.  The  second  consideration  that  is  common  both  to  murder  and 
manslaughter  is,  who  shall  be  said  a  person,  the  killing  of  whom  shall 
be  said  murder  or  manslaughter. 

If  a  woman  be  quick  or  great  with  child,  if  she  takes  or  another  gives 
her  any  potion  to  make  an  abortion,  or  if  a  man  strike  her,  whereby  the 
child  within  her  is  killed,  it  is  not  murder  nor  manslaughter  by  the  law 
of  England,  because  it  is  not  yet  in  rerum  natura,  though  it  be  a  great 
crime,  and  by  the  judicial  law  of  Moses  was  punishable  with  death ; 
nor  can  it  legally  be  made  known,  whether  it  were  killed  or  not.  22  E. 
3,  Coron.  263.  So  it  is,  if  after  such  child  were  born  alive,  and  bap- 
tized, and  after  die  of  the  stroke  given  to  the  mother,  this  is  not  homi- 
cide. I  E.  3,  23  b,  Coron.  146.  ...  If  a  man  kills  an  alien  enemy 
within  this  kingdom,  yet  it  is  felony,  unless  it  be  in  the  heat  of  war,  and 
in  the  actual  exercise  thereof. 

III.  The  third  inquiry  is,  who  shall  be  said  a  person  killing.  .  .  . 

If  there  be  an  actual  forcing  of  a  man,  as  if  A.  by  force  take  the  arm 
of  B.  and  the  weapon  in  his  hand,  and  therewith  stabs  C.  whereof  he 
dies,  this  is  murder  in  A.  but  B.  is  not  guilty.  Dalt.  cap.  93,  p.  242. 
Plowd.  Com.  19  a.  But  if  it  be  only  a  moral  force,  as  by  threatening, 
duress,  or  imprisonment,  «&;c.,  this  excuseth  not. 

1  Hawkins,  Pleas  of  the  Crown,  ch.  16,  sect.  2.  Rape  is  an  offence 
in  having  unlawful  and  carnal  knowledge  of  a  woman  by  force  and 
against  her  will. 

Ibid.,  ch.  19.  Robbery  is  a  felonious  and  violent  taking  away  from 
the  person  of  another  goods  or  money  to  any  value,  putting  him  in  fear. 

Ibid.,  ch.  15,  sect.  1,  2.  Such  hurt  of  any  part  of  a  man's  body 
whereby  he  is  rendered  less  able,  in  fighting,  either  to  defend  himself 
or  to  annoy  his  adversary,  is  properly  a  maim.     And  therefore  the  cut- 


(356  EEGINA   V.    RENSHAW.  [CHAP.  XI. 

ting  off  or  disabling  or  weakening  a  man's  hand  or  finger,  or  striking 
out'' his  eye  or  fore-tooth,  or  castrating  him,  are  said  to  be  maims  ;  but 
the  cutting  off  his  ear  or  nose,  Scc,  are  not  esteemed  maims,  because 
they  do  not  weaken,  but  only  disfigure  him. 

Ibid.,  ch.  15,  sect.  1,  2.  An  assault  is  an  attempt,  or  offer,  with 
force  and  violence,  to  do  a  corporal  hurt  to  another ;  as  by  striking  at 
him  with  or  without  a  weapon  ;  or  presenting  a  gun  at  him  at  such  a 
distance  to  which  the  gun  will  carry ;  or  pointing  a  pitchfork  at  him, 
standing  within  the  reach  of  it ;  or  by  holding  up  one's  fist  at  him  ;  or 
by  any  other  such-like  act  done  in  an  angry,  threatening  manner :  and 
from  hence  it  clearly  follows  that  one  charged  with  an  assault  and 
battery  may  be  found  guilty  of  the  former,  and  yet  acquitted  of  the 
latter.  But  every  battery  includes  an  assault ;  therefore  on  an  indict- 
ment of  assault  and  battery  in  which  the  assault  is  ill  laid,  if  the  de- 
fendant be  found  guilty  of  the  battery  it  is  sufficient.  Notwithstanding 
many  ancient  opinions  to  the  contrary,  it  seems  agreed  at  this  day  that 
no  words  whatsoever  can  amount  to  an  assault. 

It  seems  that  any  injury  whatsoever,  be  it  never  so  small,  being 
actually  done  to  the  person  of  a  man  in  an  angry,  revengeful,  rude,  or 
insolent  manner,  as  by  spitting  in  his  face,  or  any  way  touching  him  in 
anger,  or  violently  jostling  him  out  of  the  way,  are  batteries  in  the  eye 
of  the  law. 


SECTION   11. 
Assault  and  Battery. 

REGINA  V.  RENSHAW. 
Sussex  Assizes.     1847. 
[Repwted  2  Cox  C.  C.  285.] 

Maria  Renshaw  was  indicted  for  a  misdemeanor.  The  indictment 
contained  also  a  count  for  a  common  assault.^ 

Attree,  for  the  prosecution,  stated  that  the  prisoner,  having  been 
delivered  of  [a  bastard]  child  ten  days  before,  on  the  26th  of  June  left 
the  child,  swathed  in  a  large  piece  of  flannel  at  the  bottom  of  a  dry 
ditch,  in  a  field  in  the  parish  of  Bexhill,  and  then  herself  departed  to 
Hastings,  a  place  ten  miles  distant,  where  she  was  afterwards  found. 
There  was  a  patiiway  in  the  field  by  the  ditch,  and  a  lane  separated 
from  the  ditch  by  a  hedge,  neither  of  which  was  much  frequented. 
The  child  was  found  alive. 

The  facts  having  been  proved  — 

1  Only  so  much  of  the  case  as  involves  the  question  of  assault  is  given.  —  Ed. 


SECT.  II.]  COMMONWEALTH    V.    WHITE.  657 

Parke,  B.  (to  the  jury).  There  were  no  marks  of  violence  on  the 
child,  and  it  does  not  appear,  in  the  result,  tl)at  the  child  actuall}- 
experienced  any  injury  or  inconvenience,  as  it  was  providentially 
found  soon  after  it  was  exposed  ;  and  therefore,  although  it  is  said  in 
some  of  the  books  that  an  exposure  to  the  inclemency  of  the  weather 
may  amount  to  an  assault,  yet  if  that  be  so  at  all,  it  can  only  be 
when  the  person  exposed  suffers  a  hurt  or  injury  of  some  kind  or  other 
from  the  exposure. 


COMMONWEALTH  v.   WHITE. 
Supreme  Judicial  Court  of  Massachusetts.     1872. 

[Reported  110  Massachusetts,  407.] 

Complaint  to  a  trial  justice,  alleging  that  the  defendant  "  with  force 
and  arms  in  and  upon  the  body  of  Timothy  Harrington  an  assault  did 
make,  and  him  did  then  and  there  threaten  to  shoot  with  a  gun,  which 
he  then  and  there  pointed  and  aimed  at  said  Harrington." 

At  the  trial,  on  appeal,  in  the  Superior  Court,  before  Pitman  J.,  the 
Commonwealth  introduced  evidence  tending  to  show  that  the  defend- 
ant was  driving  in  a  wagon  along  a  highway,  which  Harrington,  one 
Sullivan,  and  others  were  repairing;  that  Sullivan  called  out  to  the 
defendant  to  drive  in  the  middle  of  the  road  ;  that  the  defendant  made 
an  offensive  reply  ;  that  thereupon  Sullivan  came  toward  the  defend- 
ant and  asked  him  what  he  meant ;  that  Sullivan  and  Harrington  were 
about  fifteen  feet  from  the  defendant,  who  was  moving  along  all  the 
time  ;  that  the  defendant  took  up  a  double-barrel  gun  which  he  had  in 
the  wagon,  pointed  it  towards  Sullivan  and  Harrington,  took  aim  at 
them,  and  said,  "I  have  got  something  here  that  will  pick  the  eyes 
of  you."  This  was  all  the  evidence  of  declarations  or  threats  of  the 
defendant  at  the  time  of  the  alleged  assault. 

Sullivan  testified  that  he  had  no  fear  and  did  not  suppose  the  de- 
fendant was  going  to  do  any  harm ;  but  there  was  evidence  tending  to 
show  that  Harrington  was  put  in  fear.  The  defendant  testified  that 
the  gun  was  not  loaded. 

The  defendant  asked  the  judge  to  rule  that  the  complaint  could 
not  be  sustained  because  the  Commonwealth  had  failed  to  prove  the 
offence  as  alleged  in  the  complaint ;  but  the  judge  refused  so  to  rule, 
and  ruled  that  it  was  not  necessary  to  prove  a  threat  to  shoot  as  set 
forth  in  the  complaint. 

The  defendant  also  asked  the  judge  to  instruct  the  jury  "that  the 
facts  testified  to  did  not  constitute  an  assault;  that  at  the  time,  the 
defendant  must  have  had  an  intention  to  do  some  bodily  harm  to  Har- 
rington and  the  present  ability  to  carry  his  intention  into  execution  ; 
and  that  the  whole  evidence  would  not  warrant  the  jury  in  finding  a 

42 


658  PEOPLE    V.    MOOPwE.  [CIIAP.  XI. 

verdict  against  the  defendant."  But  the  judge  refused  so  to  instruct 
the  jury,  and  instructed  them  "  that  an  assault  is  any  unlawful  physical 
force  partly  or  fully  put  in  motion,  which  creates  a  reasonable  appre- 
hension of  immediate  physical  injury ;  and  that  if  the  defendant, 
within  shooting  distance,  menacingly  pointed  at  Harrington  a  gun, 
which  Harrington  had  reasonable  cause  to  believe  was  loaded,  and 
Harrington  was  actually  put  in  fear  of  immediate  bodily  injury  there- 
from, and  the  circumstances  of  the  case  were  such  as  ordinarily  to 
induce  such  fear  in  the  mind  of  a  reasonable  man,  that  then  an  assault 
was  committed,  whether  the  gun  was  in  fact  loaded  or  not."  The  jury 
returned  a  verdict  of  guilty,  and  the  defendant  alleged  exceptions. 

Wells,  J.^  The  instructions  required  the  jury  to  find  that  the  acts 
of  the  defendant  were  done  "menacingly;"  that  Harrington  had 
reasonable  cause  to  believe  the  gun  pointed  at  him  was  loaded,  and 
was  actually  put  in  fear  of  immediate  bodily  injury  therefrom;  and 
that  the  circumstances  were  such  as  ordinarily  to  induce  such  fear  in 
the  mind  of  a  reasonable  man. 

Instructions  in  accordance  with  the  second  ruling  prayed  for  would 
have  required  the  jury  also  to  find  that  the  defendant  had  an  intention 
to  do  some  bodily  harm  and  the  present  ability  to  carry  his  intention 
into  execution.  Taking  both  these  conditions  hterally,  it  is  difficult  to 
see  how  an  assault  could  be  committed  without  a  battery  resulting. 

It  is  not  the  secret  intent  of  the  assaulting  party  nor  the  undisclosed 
fact  of  his  abiUty  or  inability  to  commit  a  battery,  that  is  material ;  but 
what  his  conduct  and  the  attending  circumstances  denote  at  the  time 
to  the  party  assaulted.  If  to  him  they  indicate  an  attack,  he  is  justi- 
fied in  resorting  to  defensive  action.  The  same  rule  applies  to  the 
proof  necessary  to  sustain  a  criminal  complaint  for  an  assault.  It  is 
tlie  outward  demonstration  that  constitutes  the  mischief  which  is  pun- 
ished as  a  breach  of  the  peace.^  Exceptions  overruled. 


PEOPLE  V.  MOORE. 
Supreme  Coukt  of  New  York.     1888. 

[^Reported  aO  Hun,  356.] 

Landon,  J.'  The  material  facts  are  not  in  dispute.  The  main  ques- 
tions are  whether  the  conceded  facts  show  that  the  defendant  com- 

^  Arguments  of  couusel  aud  part  of  the  opiuiou  are  omitted. 

■^  Ace.  State  v.  Shepard,  10  la.  126;  State  v.  Smith,  2  Humph,  457.  Contra, 
Chapmau  v.  State,  78  Ala.  463  ;  State  v.  Sears,  86  Mo.  169;  State  v.  Godfrey,  17  Or. 
300;  and  see  a  learned  note,  2  Green  Cr.  L.  Rep.  271.  —  Ed. 

^  Only  so  much  of  the  opinion  is  given  as  involves  the  question  of  assault. 


SECT.  II.]  PEOPLE  V.    MOORE.  659 

mitted  an  assault  upon  the  complainant,  and  if  so,  whether  the  assault 
was  justifiable. 

The  defendant  was  in  the  employ  of  the  Burden  Ore  and  Iron 
Company.  This  company  owns  a  large  tract  of  land  in  Livingston, 
Columbia  county,  and  has,  in  the  development  of  its  business,  created 
upon  its  lands,  the  so-called  village  of  Burden.  This  consists  of  the 
company's  offices,  shops,  sixty  or  seventy  tenement-houses,  occupied 
by  its  servants  and  their  families,  a  public  _store,  schoolhouse  and 
chapel.  A  post-office  is  established  there.  An  open  road  or  street, 
wholly  upon  the  company's  lands,  leads  from  the  public  highway  to 
the  village.  The  tenement-houses  of  the  village  are  in  rows  upon  both 
sides  of  °the  village  streets.  All  these  streets  and  roads  are  open,  and 
to  every  appearance  are  public  highways.  The  company,  however, 
retains  title  to  the  land,  and  the  public  authorities  have  not  claimed 
or  assumed  any  authority  over  them. 

The  complainant  Snyder  was  a  peddler  of  milk  and  vegetables  and 
had  customers  for  his  supplies  in  this  village.  The  company  desired 
him  to  discontinue  his  traffic  in  the  village,  and  to  give  it  to  another 
person.  It  notified  him  that  the  village  and  its  streets  were  its  private 
property,  and  that  he  must  not  sell  milk  there  any  more.  He  refused 
to  discontinue.  The  company  directed  the  defendant  to  keep  him  out 
of  the  village,  but  to  use  no  more  force  than  was  necessary  for  the 
purpose,  and  to  be  careful  not  to  do  him  personal  injury.  The  defend- 
ant, in  pursuance  of  this  direction,  assisted  by  one  Ahlers,  on  the  14th 
day  of  March,  1887,  intercepted  Snyder  upon  the  road  leading  from 
the  public  highway  to  the  village.  Snyder  was  alone,  was  seated  in 
his  sleigh  driving  his  team  of  horses  on  his  way  to  deliver  milk  to  his 
customers,  and  especially  some  apples  which  had  been  ordered  by  one 
of  them.  The  defendant  told  Snyder  he  was  trespassing  and  that  he 
had  orders  to  stop  him.  Snyder  attempted  to  drive  on.  The  defend- 
ant then  seized  the  lines  in  front  of  Snyder's  hands,  told  Ahlers  to 
take  the  horses  by  the  heads  and  turn  them  around,  which  Ahlers 
immediately  did,  the  defendant  at  the  same  time  remarking  that  "  the 
easiest  way  is  the  best  way."  When  the  team  and  sleigh,  with  Snyder 
in  it,  had  been  turned  around,  defendant  barred  the  passage  towards 
the  village  with  an  iron  pipe.     Snyder  thereupon  drove  away. 

Defendant  urges  that  this  was  no  assault,  for  the  reason  that  there 
was  no  intention  to  hurt  Snyder ;  and  that  he  did  not  lay  his  hands 
upon- him.  It  is  plain,  however,  that  the  force  which  he  applied  to 
the  horses  and  sleigh  just  as  effectually  touched  the  person  of  Snyder, 
as  if  he  had  taken  him  by  his  ears  or  shoulders  and  turned  him  right 
about  face.  The  horses  and  sleigh  were  the  instruments  with  which  he 
directed  and  augmented  his  personal  and  physical  force  against,  and 
upon  the  body  of  Snyder.  Snyder  did  receive  bodily  harm.  One 
receives  bodily  harm,  in  a  legal  sense,  when  another  touches  his  person 
against  his  will  with  physical  force,  intentionally  hostile  and  aggressive, 
or  projects  such  force  against  his  person.     Here,  for  the  moment,  Sny- 


660  PEOPLE   V.    MOOKE.  [cHAP.  XI. 

der  was  deprived  by  the  defendant  of  his  own  control  of  his  own  person  ; 
and  he  was  controlled,  intimidated,  and  coerced  by  the  hostile,  aggres- 
sive physical  force  of  the  defendant.  The  offer  to  prove  that  bodily 
harm  was  not  intended  was  made  in  the  face  of  the  defendant's  testi- 
mony that  he  intended  to  do  just  what  he  did  do.  The  obvious  purpose 
was  to  prove  that  there  was  no  intention  to  wound  or  bruise  the 
defendant,  or  cause  him  physical  pain.  So  long  as  this  was  not 
claimed  or  proved  on  the  part  of  the  prosecution,  disproof  of  it  was 
properly  rejected  for  the  reason  that  such  disproof  would  have  raised 
or  suggested  a  false  and  immaterial  issue,  tending  possibly  to  the 
miscarriage  of  justice. 

We  assume  that  if  Snyder  was  a  trespasser  the  assault  was  justifi- 
able, for  no  more  force  was  used  than  was  reasonably  necessary  to 
eject  him  from  the  premises  ;  but  he  was  not  a  trespasser.  The  streets 
leading  to  and  about  this  village  were  made  and  opened  by  the  Burden 
Iron  and  Ore  Company  for  such  public  use  as  was  incident  to  the 
wants,  convenience,  and  happiness  of  the  people  residing  there.  To 
the  extent  of  this  public  use  the  company  sul)jected  its  private  property 
to  the  law  which  regulates  public  rights.  Munn  v.  Illinois,  94  U.  S., 
113.  No  doubt  it  can  depopulate  its  village  and  restore  its  lands  to 
the  solitude  of  its  exclusive  private  dominion  ;  but  as  long  as  it  enjoys 
the  benefits  of  public  association  and  communication  it  must  accept 
the  burdens  necessarily  and  properly  incident  to  them.  By  reserving 
the  legal  title  to  the  thoroughfares  of  its  village,  it  does  not  reserve 
autocratic  powers  over  the  people  residing  along  them.  To  prevent 
the  members  of  its  community  from  buying  supplies  of  Snyder,  or  of 
any  ti-adesmau  not  nominated  by  the  company,  would  be  to  introduce 
a  condition  of  vassalage  inconsistent  wnth  our  free  institutions.  If 
these  families  may  buj'  of  Snyder,  then  he  ma}'  deliver  his  wares  to 
them,  and  use  for  the  purpose  the  appropriate  thoroughfares.  The 
assault  was,  therefore,  not  justifiable. 


SECT.  III.]  COMMONWEALTH   V.   BURKE.  661 


SECTION  III 

Rape. 

COMMONWEALTH  v.  BURKE 

Supreme  Judicial  Court  of  Massachusetts.     1870, 

\Reported  105  Massachusetts,  376.] 

Gray,  J.  —  The  defendant  has  been  indicted  and  convicted  for  aiding 
and  assisting  Dennis  Green  in  cbmmitting  a  rape  upon  Joanna  Caton. 
The  single  exception  taken  at  the  trial  was  to  the  refusal  of  the  presid- 
ing judge  to  rule  that  the  evidence  introduced  was  not  sufficient  to 
warrant  a  verdict  of  guilty.  The  instructions  given  were  not  objected 
to,  and  are  not  reported  in  the  bill  of  exceptions.  The  onl}-  question 
before  us  therefore  is,  whether,  under  any  instructions  applicable  to 
the  case,  the  evidence  would  support  a  conviction. 

That  evidence,  which  it  is  unnecessar}-  to  state  in  detail,  was  sufficient 
to  authorize  the  jur}-  to  find  that  Green,  with  the  aid  and  assistance  of 
this  defendant,  had  carnal  intercourse  with  Mrs.  Caton,  without  her 
previous  assent,  and  while  she  was,  as  Green  and  the  defendant  both 
knew,  so  drunk  as  to  be  utterl}'  senseless  and  incapable  of  consenting, 
and  with  such  force  as  was  necessar}'  to  effect  the  purpose. 

All  the  statutes  of  England  and  of  Massachusetts,  and  all  the  text- 
books of  authority  which  have  undertaken  to  define  the  crime  of  rape, 
have  defined  it  as  the  having  carnal  knowledge  of  a  woman  by  force 
and  against  her  will.  The  crime  consists  in  the  enforcement  of  a 
woman  without  her  consent.  The  simple  question,  expressed  in  the 
briefest  form,  is.  Was  the  woman  willing  or  unwilUng?  The  earlier  and 
more  weight}'  authorities  show  that  the  words  "  against  her  will,"  in 
the  standard  definitions,  mean  exactly  the  same  thing  as  "  without  her 
consent ; "  and  that  the  distinction  between  these  phrases,  as  applied 
to  this  crime,  which  has  been  suggested  in  some  modern  books,  is 
unfounded. 


662  COMMONWEALTH   V.   BUEKE.  [CHAP.  XT. 

The  most  ancient  statute  upon  the  subject  is  that  of  Westm.  I.  c.  13, 
makincr  rape  (which  had  been  a  felony  at  common  law)  a  misdemeanor, 
and  dedarincr  that  no  man  should  "  ravish  a  maiden  within  age,  neither 
bv  her  own  c°onsent,  nor  without  her  consent,  nor  a  wife  or  maiden  of 
full  a^e,  nor  other  woman,  against  her  will,"  on  penalty  of  fine  and 
imprisonment,  either  at  the  suit  of  a  party  or  of  the  king.  The  St.  of 
Westm.  II.  c.  34,  ten  years  later,  made  rape  felony  again,  and  provided 
that  if  a  man  should  "ravish  a  woman,  married,  maiden,  or  other 
woman,  where  she  did  not  consent,  neither  before  nor  after,"  he  should 
be  punished  with  death,  at  the  appeal  of  the  party  ;  "  and  likewise, 
where  a  man  ravisheth  a  woman,  married  lady,  maiden,  or  other  woman, 
with  force,  although  she  consent  afterwards,"  he  should  have  a  similar 
sentence  upon  prosecution  in  behalf  of  the  king. 

It  is  manifest  upon  the  face  of  the  Statutes  of  Westminster,  and  is 
recognized  in  the  oldest  commentaries  and  cases,  that  the  words  "  with- 
out her  consent"  and  "against  her  will"  were  used  synonymously; 
and  that  the  second  of  those   statutes   was  intended  to  change  the 
punishment  only,  and  not  the  definition  of  the  crime,  upon  any  indict- 
ment for  rape  — leaving  the  words  "  against  her  will,"  as  used  in  the 
first  statute,  an  accurate  part  of  the  description.     Mirror,  c.  1,  §   12  ; 
c.  3,   §   21  ;    c.  5,  §  5;  30  «fe  31   Edw.  I.  529  532  ;  22  Edw.  IV.  22; 
Staunf.  P.  C.  24  a.     Coke  treats  the  two  phrases  as  equivalent ;  for  he 
says  :  "  Rape  is  felony  by  the  common  law  declared  by  parliament,  for 
the  unlawful  and  carnal  knowledge  and  abuse  of  any  woman  above  the 
aoe  of  ten  years  against  her  will,  or  of  a  woman  child  under  the  age  of 
ten  years  with  he  °will  or  against  her  will ; "  although  in  the  latter  case 
the  words  of  the  St.  of  Westm.  I.   (as  we  have  already  seen)  were 
"neither  by  her  own  consent,  nor  without  her  consent."     3  Inst.  GO. 
Coke  elsewhere  repeatedly  defines  rape  as  "  the  carnal  knowledge  of  a 
woman  by  force  and  against  her  will."     Co.  Lit.  123  b  ;  2  Inst.  180.     A 
similar  definition  is  given  by  Hale,  Hawkins,  Comyn,  Blackstone,  East, 
and  Starkie,  who  wrote  while  the  Statutes  of  Westminster  were  in  force  ; 
as  well  as  by  the  text-writers  of  most  reputation  since  the  St.  of  9  Geo. 
IV.  c.  31,  repealed  the  earlier  statutes,  and,  assuming  the  definition  of 
the  crime  to  be  well  established,  provided  simply  that  "  every  person 
convicted  of  the  crime  of  rape  shall  suffer  death  as  a  felon."     1  Hale  P. 
C.  628;  1  Hawk,  c  41  ;  Com.  Dig.  Justices,  S.  2  ;  4  Bl.  Com.  210; 
1  East  P.  C.  434  ;  Stark.  Crim.  PI.  (2d  ed.)  77,  431  ;  1  Russell  on 
Crimes  (2d  Am.  ed.),  556,   (7th  Am.  ed.)  675  ;  3  Chit.  Crim.  Law,  810  ; 
Archb.  Crim.  PI.  (10th  ed.)  481 ;  1   Gabbett  Crim.  Law,  831.     There 
is  authority  for  holding  that  it  is  not  even  necessary  that  an  indictment, 
which  alleges  that  the  defendant  "  feloniously  did  ravish  and  carnally 
know"  a  woman,  should  add  the  words  "  against  her  will."     1  Hale  P. 
C.  632:  Harman  v.  Commonwealth,  12  S.  &  R.  69  ;  Commonwealth 
V.  Fogerty,  8  Graj^  489.     However  that  may  be,  the  office  of  those 
words,  if  inserted,  is  simply  to  negative  the  woman's  previous  consent. 
Stark.  Crim.  PI.  431  note. 


SECT.  III.]  COMMONWEALTH    V.   EURKE.  663 

In  the  loading  modern  English  case  of  The  Queen  v.  Camplin,  the 
great  majority  of  the  English  judges  held  that  a  man  who  gave  intoxi- 
cating liquor  to  a  girl  of  thirteen,  for  the  purpose,  as  the  jury  found, 
"of  exciting  her,  not  with  the  intention  of  rendering  her  insensible, 
and    then   having  sexual  connection  with  her,"  and  made  her  quite 
drunk,  and,  while  she  was  in  a  state  of  insensibility,  took  advantage  of 
it,  and  ravished  her,  was  guilty  of  rape.     It  appears  indeed  by  tlie 
judgment  delivered  by  Patteson,  J.,  in  passing  sentence,  as  reported  in 
1   Cox  Crim.  Cas.  220,  and  1  C.   &  K.  74G,  as  well  by  the  contem- 
poraneous notes  of  Parke,  B.,  printed  in  a  note  to  1  Denison,  92,  and 
of  Alderson,   B.,   as   read   by   him   in   The   Queen   v.   Page,   2  Cox 
Crim,  Cas.   133,  that  the  decision  was  influenced  by  its  having  been 
proved  at  the  trial  that,  before  the  girl  became  insensible,  the  man 
had  attempted  to   procure  her  consent,  and  had  failed.     But  it  further 
appears  b}'  those  notes  that  Lord  Denman,  C.  J.,  Parke,  B.,  and  Pat- 
teson, J.,  thought  that  the  violation  of  any  woman  without  her  con- 
sent, while  she  was  in  a  state  of  insensibility  and  had  no  power  over 
her  will,  by  a  man  knowing  at  the  time  that  she  was  in  that  state, 
was  a  rape,  whether  such  state  was  caused  by  him  or  not;  for  example, 
as  Alderson,  B.,  adds,  "in  the  case  of  a  woman  insensiblj'  drunk  in 
the  streets,  not  made  so  by  the  prisoner."     And  in  the  course  of  the 
argument  this   able  judge  himself  said   that  it   might  be  considered 
against  the  general  presumable  will  of  a  woman,  that  a  man  should 
have  unlawful  connection  with  her.     The  later  decisions  have  estab- 
lished the  rule  in  England  that  unlawful  and  forcible  connection  with  a 
woman  in  a  state  of  unconsciousness  at  the  time,  whether  that  state 
has  been  produced  by  the  act  of  the  prisoner  or  not,  is  presumed  to  be 
without  her  consent,  and  is  rape.     The  Queen  v.  Ryan,  2  Cox  Crim. 
Cas.   115;    Anon,  by  Willes,  J.,  8  Cox   Crim.  Cas.   134;  Regina  v. 
Fletcher,  ib.   131 ;    s.  c.  Bell,  63  ;    Regina  v.  Jones,   4  Law   Times 
(n.  s.)  154;    The  Queen  v.  Fletcher,   Law  Rep.  1  C.  C.  39;  s.  c.   10 
Cox  Crim.  Cas.  248;  The,  Queen  v.  Barrow,  Law  Rep.  1  C.  C.  156; 
s.  c.  11  Cox  Crim.  Cas.   191.     Although  in    Regina  v.  Fletcher,  uhi 
supra,  Lord  Campbell,  C.  J.   (ignoring  the   old   authorities  and  the 
repealing  St.  of  9  Geo.  IV.)    unnecessarily  and  erroneously  assumed 
that  the  St.  of  Westm.  II.  was  still  in  force ;  that  it  defined  the  crime 
of  rape ;    and    that   there   was    a   difference   between  the  expressions 
"  against  her  will"  and  "without  her  consent,"  in  the  definitions  of 
this  crime,  —  none  of  the  other  cases  in  England  have  been  put  upon 
that  ground,  and  their  judicial  value  is  not  impaired  by  his  inaccuracies. 

The  earliest  statute  of  Massachusetts  upon  the  subject  was  passed  in 
1642,  and,  like  the  Enghsh  Statutes  of  Westminster,  used  "without 
consent"  as  synonymous  with  "  against  her  will,"  as  is  apparent  upon 
reading  its  provisions,  which  were  as  follows:  1st  "  If  any  man  shall 
unlawfully  have  carnal  copulation  with  any  woman  child  under  ten 
years  old,  he  shall  be  put  to  death,  whether  it  were  with  or  without  the 
girl's  consent."     2d  "If  any  man  shall  forcibly  and  without  consent 


664  COMMONWEALTH   V.   BURKE.  [cHAP.  XL 

ravish  any  maid  or  woman  that  is  lawfully  married  or  contracted,  he 
shall  be  put  to  death."  3d  "  If  any  man  shall  ravish  any  maid  or 
single  woman,  committing  carnal  copulation  with  her  by  force,  against 
her°will,  that  is  above  the  age  of  ten  years,  he  shall  be  either  punished 
with  death,  or  with  some  other  grievous  punishment,  according  to  cir- 
cumstances, at  the  discretion  of  the  judges."  2  Mass.  Col.  Rec.  21. 
Without  dwelling  upon  the  language  of  the  first  of  these  provisions, 
which  related  to  the  abuse  of  female  children,  it  is  manifest  that  in  the 
second  and  third,  both  of  which  related  to  the  crime  of  rape,  strictly  so 
called,  and  differed  only  in  the  degree  of  punishment,  depending  upon 
the  question  whether  the  woman  was  or  was  not  married  or  engaged  to 
be  married,  the  legislature  used  the  words  "  without  consent,"  in  the 
second  provision,  as  precisely  equivalent  to  "against  her  will,"  in  the 
third.  The  later  revisions  of  the  statute  have  abolished  the  difference 
in  punishment,  and  therefore  omitted  the  second  provision,  and  thus 
made  the  definition  of  rape  in  all  cases  the  ravishing  and  carnally 
knowing  a  woman  "  by  force  and  against  her  will."  Mass.  Col.  Laws 
(ed.  1660),  9,  (ed.  1672)  15  ;  Mass.  Prov.  Laws,  1692-93  (4  W.  &  M.) 
c.  19,  §  11  ;  1697  (9  W.  III.)  c.  18 ;  (State  ed.)  56,  296  ;  St.  1805,  c. 
97,  §  1  ;  Rev.  Sts.  c.  125,  §  18;  Gen.  Sts.  c.  160,  §  26.  But  they 
cannot  upon  any  proper  rule  of  construction  of  a  series  of  statutes  in 
pari  materia,  be  taken  to  have  changed  the  description  of  the  offence. 
Commonwealth  v.  Sugland,  4  Gray,  7  ;  Commonwealth  v.  Bailey,  13 
Allen,  541,  545. 

We  are  therefore  unanimously  of  opinion  that  the  crime,  which  the 
evidence  in  this  case  tended  to  prove,  of  a  man's  having  carnal  inter- 
course with  a  woman,  without  her  consent,  while  she  was,  as  he 
knew,  wholly  insensible  so  as  to  be  incapable  of  consenting,  and  with 
such  force  as  was  necessary  to  accomplish  the  purpose,  was  rape.  If 
it  were  otherwise,  any  woman  in  a  state  of  utter  stupefaction,  whether 
caused  by  drunkenness,  sudden  disease,  the  blow  of  a  third  person,  or 
drugs  which  she  had  been  persuaded  to  take  even  by  the  defendant 
lilmself,  would  be  unprotected  from  personal  dishonor.  The  law  is  not 
open  to  such  a  reproach.^  .Exceptions  overruled. 

1  Ace.  Eeg.  V.  Champlin,  1  Den.  C.  C.  89  ;  Reg.  v.  Fletcher,  8  Cox  C.  C.  131  (cf. 
Reg.  V.  Fletcher,  10  Cox  C.  C.  248) ;  Reg.  v.  Mayer.s,  12  Cox  C.  C.  311  ;  Reg.  v.  Bar- 
ratt,  12  Cox  C.  G.  498.  But  see  a  learned  note  on  the  subject,  1  Green  Cr.,  L.  Rep. 
318.  — Ed. 


SECT.  IV.]  MURDER.  665 


SECTION  IV. 


Murder. 

1  Hawkins,  Pleas  of  the  Crown,  ch.  13,  Sects.  1,  2.  The  word 
"  nun-der"  anciently  signified  only  the  private  killing  of  a  man,  for 
wliich,  by  force  of  a  law  introduced  by  King  Canute  for  the  preser- 
vation of  his  Danes,  the  town  or  hundred  where  the  fact  was  done  was 
to  be  amerced  to  the  king,  unless  they  could  prove  that  the  person  slain 
were  an  Englishman  (which  proof  was  called  Engleschire),  or  could 
produce  the  offender,  etc.  And  in  those  days  the  open  wilful  killing 
of  a  man  through  anger  or  malice,  etc.,  was  not  called  murder,  but 
voluntary  homicide. 

But  the  said  law  concerning  Engleschire  having  been  abolished  by 
14  PMw.  III.  c.  4.  the  killing  of  any  Englishman  or  foreigner  through 
malice  prepense,  whether  committed  openly  or  secretly,  was  by  de- 
grees called  murder;  and  13  Rich.  II.  c.  1,  which  restrains  the 
king's  pardon  in  certain  cases,  does  in  the  preamble,  under  the  general 
name  of  murder,  include  all  such  homicide  as  shall  not  be  pardoned 
without  special  words ;  and,  in  the  body  of  the  Act,  expresses  the 
same  by  "  murder,  or  kiUing  by  await,  assault,  or  malice  prepensed." 
And  doubtless  the  makers  of  23  Hen.  VIII.  c.  1,  which  excluded  all 
wilful  murder  of  malice  prepense  from  the  benefit  of  the  clerg}^,  in- 
tended to  include  open,  as  well  as  private,  homicide  within  the  word 
murder. 

23  Hen.  VIII.  ch.  1,  Sect.  3.  Be  it  enacted  by  the  King  our  sover- 
eign lord,  and  the  lords  spiritual  and  temporal,  and  the  commons,  in  this 
present  parliament  assembled,  and  by  authority  of  the  same,  That  no 
person  nor  persons,  which  hereafter  shall  happen  to  be  found  guilty 
after  the  laws  of  this  land,  for  any  manner  of  petit  treason,  or  for  any 
wilful  murder  of  malice  prepensed,  or  for  robbing  of  any  churches, 
chapels,  or  other  holy  places,  or  for  robbing  of  any  person  or  persons 
in  their  dwelling-houses,  or  dwelling-place,  the  owner  or  dweller  in  the 
same  house,  his  wife,  his  children,  or  servants  then  being  within,  and 
put  in  fear  and  dread  by  the  same,  or  for  robbing  of  any  person  or 
persons  in  or  near  about  the  highways,  or  for  wilful  burning  of  any 
dwelling-houses,  or  barns  wherein  any  grain  or  corn  shall  happen  to 
be,  nor  any  person  or  persons  being  found  guilty  of  any  abetment,  pro- 
curement, helping,  maintaining,  or  counselling,  of  or  to  any  such  petit 
treasons,  murders,  or  felonies,  shall  from  henceforth  be  admitted  to  the 
benefit  of  his  or  their  clergy,  but  utterly  be  excluded  thereof,  and 
suffer  death  in  such  manner  and  form  as  they  should  have  done  for 
any  of  the  causes  or  offences  abovesaid  if  they  were  no  clerks ;  such 
as  be  within  holy  orders,  that  is  to  say,  of  the  orders  of  sub-deacon  or 
above,  only  except. 


6G6 


EEX   V.   TOMSON.  [CHAP.  XI. 


YONG'S  CASE. 
Queen's  Bench.     1587. 

I  Reported  4  Coke,  40  a.] 

In  this  case  it  was  held  per  totam  curiam  that  if,  tipon  an  affray,  the 
constable  and  others  in  his  assistance  come  to  suppress  the  affray  and 
preserve  the  peace,  and  in  executing  their  office  the  constable  or  any 
of  his  assistants  is  killed,  it  is  murder  in  law,  although  the  murderer 
knew  not  the  party  that  was  killed,  and  although  the  affray  was  sudden  ; 
because  the  constable  and  his  assistants  came  by  authority  of  law  to 
keep  the  peace,  and  prevent  the  danger  which  might  ensue  by  the 
breach  of  it ;  and  therefore  the  law  will  adjudge  it  murder,  and  that 
the  murderer  had  malice  prepense,  because  he  set  himself  against  the 
justice  of  the  realm.  So  if  the  sheriff  or  any  of  his  bailiffs  or  other 
officers  is  killed  in  executing  the  process  of  the  law,  or  in  doing  their 
duty,  it  is  murder ;  the  same  law  of  a  watchman,  who  is  killed  in  the 
execution  of  his  office. 


REX  V.  TOMSON. 

Old  Bailey.     1G6-. 

[Reported  Kelyng,  66.] 

At  the  sessions  in  the  Old  Bailey  holden  after  Hilary  Term,  Ca-oli 
Secundi,  Thomas  Tomson  was  indicted  for  murdering  of  Allen  Dawes, 
and  the  jury  found  a  special  verdict  to  this  effect,  viz.,  that  the  day, 
year,  and  place  in  the  indictment  mentioned,  Thomas  Tomson,  the 
prisoner,  and  his  wife  were  fighting  in  the  house  of  the  said  Allen 
Dawes,  who  was  killed,  and  the  said  Allen  Dawes,  seeing  them  fight- 
ing, came  in  and  endeavored  to  part  them,  and  thereupon  the  said 
Tomson  thrust  away  the  said  Dawes,  and  threw  him  down  upon  a  piece 
of  iron,  which  was  a  bar  in  a  chimney  which  kept  up  the  fire,  and  by 
that  one  of  the  ribs  of  the  said  Dawes  was  broken,  of  which  he  died ; 
and  if  the  court  judge  this  murder,  they  find  so,  or  if  manslaughter, 
then  they  find  so. 

And  I  put  this  case  to  my  Lord  Chief  Justice,  Baron  Hales  and  my 
brother,  and  some  other  of  my  brethren,  and  we  all  agreed  as  it  is 
resolved  in  Young's  case,  Co.  4.  Report,  and  also  in  Mackally's  case, 
Co.  9.  Report,  that  if  upon  a  sudden  affray,  a  constable  or  watchman, 
or  any  that  come  in  aid  of  them,  who  endeavor  to  part  them,  are  killed, 
this  is  murder  ;  and  we  hold  likewise  that  if  no  constable  or  watchman 
be  there,  if  any  other  person  come  to  part  them,  and  he  be  killed,  this 
is  murder ;  for  every  one  in  such  case  is  bound  to  aid  and  preserve  the 


SECT.  IV.]  GEEY'S   case. 


667 


king's  peace.  But  in  all  those  cases  it  is  necessary  that  the  party  who 
was  fighting  and  killed  liim  that  came  to  part  them,  did  know  or  had 
notice  given  that  tliey  came  for  that  purpose.  As  for  the  constable  or 
other  person  who  coraeth  to  part  them,  to  charge  them  in  the  king's 
name  to  keep  the  king's  peace,  by  which  they  have  notice  of  their 
intents  ;  for  otherwise  if  two  are  fighting,  and  a  stranger  runs  in  with 
intent  to  part  them,  yet  the  party  who  is  figliting  may  think  lie 
cometh  in  aid  of  tlie  other  with  whom  he  is  fighting,  unless  some  such 
notice  be  given  as  aforesaid,  tliat  he  was  a  constable  and  came  to  part 
them  :  and  that  appeareth  by  Mackally's  case  before  cited,  where  in  case 
of  an  arrest  by  a  sergeant,  it  is  necessar}',  to  make  it  murder,  that  the 
sergeant  tell  him  that  he  doth  arrest,  for  else  if  he  doth  say  nothing, \ 
but  fall  upon  the  man  and  be  killed  by  him,  this  is  but  manslaughter, 
unless  it  appear  that  the  person  arrested  did  know  him  to  be  a  sergeant, 
and  that  he  came  to  arrest  him  ;  for  as  the  case  is  there  put,  if  one 
seeing  the  sheriff  or  a  sergeant  whom  he  knoweth  hath  a  warrant  to 
arrest  him,  and  to  prevent  it  before  the  officer  come  so  near  as  to  let 
him  know  he  doth  arrest  him,  he  shoots  again  at  him,  and  kills  him, 
this  is  murder ;  and  in  the  principal  case,  though  the  jury  find  that 
Dawes  came  to  part  the  man  and  wife,  yet  it  doth  not  appear  whether 
it  is  found  that  Tomson  knew  his  intent,  nor  that  Dawes  spake  any 
words  whereby  he  might  understand  his  intention,  as  charging  them  to 
keep  the  king's  peace,  etc.,  and  so  we  held  it  to  be  only  manslaughter, 
which  in  law  is  properly  chance-medley,  that  is,  where  one  man  upon  a 
sudden  occasion  kills  another  without  maUce  in  fact,  or  malice  implied 
by  law. 


GREY'S   CASE. 
Old  Bailey.     1666. 

[Reported  Kelyng,  64.] 

John  Grey  being  indicted  for  the  murder  of  William  Golding,  the 
jury  found  a  special  verdict  to  this  efl'ect,  viz. :  We  find  that  the  day, 
year,  and  place  in  the  indictment  mentioned  John  Grey,  the  prisoner,  was 
a  blacksmith,  and  that  William  Golding,  the  person  killed,  was  his  ser- 
vant, and  that  Grey  his  master  commanded  him  to  mend  certain  stamps, 
being  part  belonging  to  his  trade,  which  he  neglected  to  do  ;  and  the 
said  Grey,  his  master,  after  coming  in  asked  him  the  said  Golding, 
why  he  had  not  done  it,  and  then  the  said  Grey  told  the  said  Golding, 
that  if  he  would  not  serve  him,  he  should  serve  in  Bridewell,  to  which 
the  said  Golding  replied,  that  he  had  as  good  serve  in  Bridewell  as 
serve  the  said  Grey  his  master ;  whereupon  the  said  Grey,  without  any 
other  provocation,  struck  the  said  Golding  with  a  bar  of  iron,  which 
the  said  Grey  then  had  in  his  hand,  upon  which  he  and  Golding  were 


66S  GKET'S    CASE.  [CIIAP.  XL 

■working  at  the  anvil,  and  with  the  said  blow  he  broke  his  skull,  of 
•which  he  died :  and  if  this  be  murder,  etc.  This  case  was  found 
specially  by  the  desire  of  my  Brother  Wylde.  and  I  showed  the  special 
veixiiet  to  all  my  Brethren.  Judges  of  the  King's  Bench,  and  to  my 
Lord  Bridgmau.  Chief  Justice  of  the  Common  Pleas.  And  we  were  all 
of  opinion  that  this  was  murder.  For  if  a  father,  master,  or  school- 
master will  correct  his  child,  servant,  or  scholar,  they  must  do  it  with 
such  things  as  are  fit  for  correction,  and  not  with  such  instruments  as 
may  probably  kill  them.  For  otherwise,  under  pretence  of  correction, 
a  parent  might  kill  his  child,  or  a  master  his  servant,  or  a  school- 
master his  scholar,  and  a  bar  of  iron  is  no  instrument  for  correction. 
It  is  all  one  as  if  he  had  run  him  through  with  a  sword  j  and  my 
Brother  Morton  said  he  remembered  a  case  at  Oxford  Assizes  before 
Justice  Jones,  then  Judge  of  Assize,  where  a  smith  being  chiding 
with  his  servant,  upon  some  cross  answer  given  by  his  servant,  he 
having  a  piece  of  hot  iron  in  his  hand  run  it  into  his  servant's  belly, 
and  it  was  judged  murder,  and  the  party  executed.  And  my  Lord 
Bridgman  said,  that  in  his  circuit  there  wr.s  a  woman  indicted  for 
murdering  her  child,  and  it  appeared  upon  the  evidence  that  she  kicked 
her  and  stamped  upon  her  belly,  and  he  judged  it  murder.  And  my 
Brother  Twisden  said  he  ruled  such  a  case  formerly  in  Gloucester  Cir- 
cuit, for  a  piece  of  iron  or  a  sword  or  a  great  cudgel,  with  which  a 
man  probably  may  be  slain,  are  not  instruments  of  correction.  And 
therefore,  when  a  master  strikes  his  servant  willingly  with  such  things 
as  those  are,  if  death  ensue,  the  law  shall  judge  it  malice  prepense  ;  and 
therefore  the  statute  of  5  H.  IV.  c.  5,  which  enacts  that  if  any  one  does 
cut  out  the  tongue,  or  put  out  the  eyes  of  any  of  the  king's  subjects  of 
malice  prepense,  it  shall  be  felony.  If  ^  man  do  cut  out  the  tongue  of 
another  man  voluntarily,  the  law  judgeth  it  of  malice  prepense.  And 
so  where  one  man  killeth  another  without  any  provocation,  the  law 
judgeth  it  malice  prepense  ;  and  in  the  L.  Morley's  case  in  this  book,  it 
was  resolved  bv  all  the  judges,  that  words  are  no  provocation  to  lessen 
the  offence  from  being  murder,  if  one  man  kill  another  upon  ill  words 
given  to  him.  But  if  a  parent,  master,  or  schoolmaster,  correct  his 
child,  servant,  or  scholar,  with  such  things  as  are  usual  and  fit  for 
correction,  and  they  happen  to  die.  Poulton  de  Pace.  p.  120,  saith  this 
is  by  misadventure,  and  cites  for  authority,  Keilway,  108,  a,  b,  & 
136,  a.  But  that  book  which  put.s  this  case  in  Keilway  is  136,  a,  saith 
that  if  a  master  correct  his  servant,  or  lord  his  villain,  and  by  force  of 
that  correction  he  dieth.  although  he  did  not  intend  to  kill  him.  yet  this 
is  felony,  because  they  ought  to  govern  themselves  in  their  correction 
in  such  ways  that  such  a  misadventui'e  might  not  happen.  And  I 
suppose,  because  the  word  misadventure  is  there  used,  therefore  Poul- 
ton concludeth  (it  may  be  truU*)  that  it  is  but  misadventure. 

And  in  this  principal  case,  upon  certificate  [by^  many  persons  of 
good  commendation  of  the  general  esteem  that  Grey  had.  I  did  certifie 
the  King  that  though  in  strictness  of  law  his  oflfence  was  murder,  yet  it 


SECT.  IV.]  REGINA  V.   SEENJfi.  6G9 

was  attended  with  such  circumstances  as  might  render  the  person  ar 
object  of  his  Majesty's  grace  and  pardon,  he  having  a  very  good  rcpol. 
among  all  his  own  company  of  his  own  trade,  and  of  all  his  neighbors  ; 
and  upon  this  the  King  was  pleased  to  grant  him  his  pardon. 


(^ 


y 


REGINA  V.   SERNE. 
Central  Criminal  Court.     1887. 

[Reported  16  Cox  C.  C.  311.] 

The  prisoners  Leon  Serne  and  John  Henry  Goldfinch  were  indicted 
for  the  murder  of  a  boy,  Sjaak  Serne,  the  son  of  the  prisoner  Leon 
Serne,  it  being  alleged  that  they  wilfully  set  on  fire  a  house  and  shop, 
No.  274  Strand,  London,  by  which  act  the  death  of  the  boy  had  been 
caused. 

It  appeared  that  the  prisoner  Serne  with  his  wife,  two  daughters,  and 
two  sons  were  living  at  the  house  in  question  ;  and  that  Serne,  at  the 
time  he  was  living  there,  in  midsummer,  1887,  was  in  a  state  of  pecu- 
niary embarrassment,  and  had  put  into  the  premises  furniture  and 
other  goods  of  but  very  little  value,  which  at  the  time  of  the  fire  were 
not  of  greater  value  than  £30.  It  also  appeared  that  previously  to  the 
fire  the  prisoner  Serne  had  insured  the  life  of  the  boy  Sjaak  Serne, 
who  was  imbecile,  and  on  the  first  day  of  September,  1887,  had  in- 
sured his  stock  at  274  Strand,  for  £500,  his  furniture  for  £100,  and 
his  rent  for  another  £100  ;  and  that  on  the  17th  of  the  same  month  the 
premises  were  burnt  down. 

Evidence  was  given  on  behalf  of  the  prosecution  that  fires  were  seen 
breaking  out  in  several  parts  of  the  premises  at  the  same  time,  soon 
after  the  prisoners  had  been  seen  in  the  shop  together,  two  fires  being 
in  the  lower  part  of  the  house  and  two  above,  on  the  floor  whence 
escape  could  be  made  on  to  the  roof  of  the  adjoining  house,  and  in 
which  part  were  the  prisoners,  and  the  wife,  and  two  daughters  of 
Serne,  who  escaped  ;  that  on  the  premises  were  a  quantity  of  tissue 
transparencies  for  advertising  purposes,  which  were  of  a  most  inflam- 
mable character ;  and  that  on  the  site  of  one  of  the  fires  was  found  a 
great  quantity  of  these  transparencies  close  to  other  inflammable  ma- 
terials ;  that  the  prisoner  Serne,  his  wife  and  daughters,  were  rescued 
from  the  roof  of  the  adjoining  house,  the  other  prisoner  being  rescued 
from  a  window  in  the  front  of  the  house,  but  that  the  boys  were  burnt 
to  death,  the  body  of  the  one  being  found  on  the  floor  near  the  win- 
dow from  which  the  prisoner  Seme,  his  wife,  and  daughters  had 
escaped,  the  body  of  the  other  being  found  at  the  basement  of  the 
premises. 


670  EEGINA   V.  SEKNI  [cHAP.  XL 

Stephen,  J.  Gentlemen,  it  is  now  my  dut}^  to  direct  your  attention 
to  the  law  and  the  facts  into  which  you  have  to  inquire.  The  two 
prisoners  are  indicted  for  the  wilful  murder  of  the  boy  Sjaak  Serne,  a 
lad  of  about  fourteen  years  of  age  ;  and  it  is  necessary  that  I  should 
explain  to  you,  to  a  certain  extent,  the  law  of  England  with  regard  to 
the  crime  of  wilful  murder,  inasmuch  as  you  have  heard  something,  said 
about  constructive  murder.  Now  that  phrase,  gentlemen,  has  no  legal 
meaning  whatever.  There  was  wilful  murder  according  to  the  plain 
meaning  of  the  term,  or  there  was  no  murder  at  all  in  tlie  present  case. 
The  definition  of  murder  is  unlawful  homicide  with  malice  aforethought, 
and  the  words  "  malice  aforethought "  are  technical.  You  must  not, 
therefore,  construe  them  or  suppose  that  they  can  be  construed  by 
ordinary  rules  of  language.  The  words  have  to  be  construed  according 
to  a  long  series  of  decided  cases,  which  have  given  them  meanings  dif- 
ferent from  those  which  might  be  supposed.  One  of  those  meanings  is, 
the  killing  of  another  person  by  an  act  done  with  an  intent  to  commit  a 
felony.  Another  meaning  is,  an  act  done  with  the  knowledge  that  the 
act  will  probably  cause  tlie  death  of  some  person.  Now  it  is  such  an 
act  as  the  last  which  is  alleged  to  have  been  done  in  this  case ;  and  if 
you  think  that  either  or  both  of  these  men  in  the  dock  killed  this  boy, 
either  bv  an  act  done  with  intent  to  commit  a  felony,  that  is  to  say,  the 
setting  of  the  house  on  fire  in  order  to  cheat  the  insurance  compan}',  or 
by  conduct  which  to  their  knowledge  was  likely  to  cause  death  and 
was  therefore  eminently  dangerous  in  itself, —  in  either  of  these  cases 
the  prisoncj-s  are  guilty  of  wilful  murder  in  the  plain  meaning  of  the 
word.  I  will  say  a  word  or  two  upon  one  part  of  this  definition,  because 
it  is  capable  of  being  applied  very  harshly  in  certain  cases,  and  also 
because,  though  I  take  the  law  as  I  find  it,  I  very  much  doubt  whether 
the  definition  which  I  have  given,  although  it  is  the  common  definition, 
is  not  somewhat  too  wide.  Now  when  it  is  said  that  murder  means 
killing  a  man  by  an  act  done  in  the  commission  of  a  felony,  tlie  mere 
words  cover  a  case  like  this,  that  is  to  sa}-,  a  case  where  a  man  gives 
another  a  push  with  an  intention  of  stealing  his  watch,  and  the  person 
so  pushed,  having  a  weak  heart  or  some  other  internal  disorder,  dies. 
To  take  another  very  old  illustration,  it  was  said  that  if  a  man  shot  at 
a  fowl  with  intent  to  steal  it  and  accidentally  killed  a  man,  he  was  to  be 
accounted  guilty  of  murder,  because  the  act  was  done  in  the  commis- 
sion of  a  felony.  I  very  much  doubt,  however,  whether  that  is  really 
the  law,  or  whether  the  Court  for  the  Consideration  of  Crown  Cases 
Reserved  would  hold  it  to  be  so.  The  present  case,  however,  is  not 
such  as  I  have  cited,  nor  anything  like  them.  In  my  opinion  the  defi- 
nition of  the  law  which  makes  it  murder  to  kill  by  an  act  done  in  the 
commission  of  a  felony  might  and  ought  to  be  narrowed,  while  that  part 
of  the  law  under  which  the  Crown  in  this  case  claim  to  have  proved  a 
case  of  murder  is  maintained.  I  think  that,  instead  of  saN'ing  that 
any  act  done  with  intent  to  commit  a  felony  and  which  causes  death 
amounts  to  murder,  it  would  be  reasonable  to  say  that  any  act  known 


SECT.  IV.]  EEGINA   V.   SERN£  671 

to  be  dangerous  to  life  and  likely  in  itself  to  cause  death,  done  for  the 
purpose  of  committing  a  felon}-,  which  caused  death,  should  be  murder. 
As  an  illustration  of  this,  suppose  that  a  man,  intending  to  commit  a 
rape  upon  a  woman,  but  without  the  least  wish  to  kill  her,  squeezed 
her  b}'  the  throat  to  overpower  her,  and  in  so  doing  killed  her ;  that 
would  be  murder.  I  think  that  every  one  would  sa^',  in  a  case  like  that, 
that  when  a  person  began  doing  wicked  acts  for  his  own  base  purposes, 
he  risked  his  own  life  as  well  as  that  of  others.  That  kind  of  crime 
does  not  differ  in  any  serious  degree  from  one  committed  by  using  a 
deadly  weapon,  such  as  a  bludgeon,  a  pistol,  or  a  knife.  If  a  man  once 
begins  attacking  the  human  body  in  such  a  way,  he  must  take  the  con- 
sequences if  he  goes  further  than  he  intended  when  he  began.  That 
I  take  to  be  the  true  meaning  of  the  law  on  the  subject.  In  the  present 
case,  gentlemen,  you  have  a  man  sleeping  in  a  house  with  his  wife, 
his  two  daughters,  his  two  sons,  and  a  servant,  and  you  are  asked  to 
believe  that  this  man,  with  all  these  people  under  his  protection,  delib- 
erately set  fire  to  the  house  in  three  or  four  different  places  and  thereby 
burnt  two  of  them  to  death.  It  is  alleged  that  he  arranged  matters 
in  such  a  wuj'  that  any  person  of  the  most  common  intelligence  must 
have  known  perfectly  well  that  he  was  placing  all  those  people  in 
deadly  risk.  It  appears  to  me  that  if  that  were  really'  done,  it  matters 
very  little  indeed  whether  the  prisoners  hoped  the  people  would  escape 
or  whether  they  did  not.  If  a  person  chose,  for  some  wicked  purpose 
of  his  own,  to  sink  a  boat  at  sea,  and  thereby  caused  the  deaths  of  the 
occupants,  it  matters  nothing  whether  at  the  time  of  committing  the 
act  he  hoped  that  the  people  would  be  picked  up  by  a  passing  vessel. 
He  is  as  much  guilty  of  murder,  if  the  people  are  drowned,  as  if  he  had 
flung  every  person  into  the  water  with  his  own  hand.  Therefore,  gentle- 
men, if  Serne  and  Goldfinch  set  fire  to  this  house  when  the  family  were 
in  it,  and  if  the  boys  were  by  that  act  stifled  or  burnt  to  death,  then 
the  prisoners  are  as  much  guilt}-  of  murder  as  if  they  had  stabbed  the 
children.  I  will  also  add,  for  my  own  part,  that  I  think,  in  so  saying, 
the  law  of  England  lays  down  a  rule  of  broad,  plain  common-sense. 
Treat  a  murderer  how  you  will,  award  him  what  punishment  you 
choose,  it  is  your  duty,  gentlemen,  if  you  think  him  really  guilty  of 
murder,  to  say  so.  That  is  the  law  of  the  land,  and  I  have  no  doubt 
in  my  mind  with  regard  to  it.  There  was  a  case  tried  in  this  court 
which  you  will  no  doubt  remember,  and  which  will  illustrate  my  mean- 
ing. It  was  the  Clerkenwell  explosion  case  in  1868,  when  a  man 
named  Ban-ett  was  charged  with  causing  the  death  of  several  persons 
by  an  explosion  which  was  intended  to  release  one  or  two  men  from 
custody  ;  and  I  am  sure  that  no  one  can  say  truly  that  Barrett  was  not 
justly  hanged.  With  regard  to  the  facts  in  the  present  case,  the  very 
horror  of  the  crime,  if  crime  it  was,  the  abomination  of  it,  is  a  reason 
for  your  taking  the  most  extreme  care  in  the  case,  and  for  not  imputing 
to  the  prisoners  anything  which  is  not  clearly  proved.  God  forbid  that 
I  should,  by  what  I  sa}-,  produce  on  your  minds,  even  in  the  smallest 


672  STATE   V.    SMITH.  [CHAP.  XL 

degree,  any  feeling  against  the  prisoners.  You  must  see,  gentlemen, 
that  the  evidence  leaves  no  reasonable  doubt  upon  your  minds ;  but 
you  will  fail  in  the  performance  of  your  duty  if,  being  satisfied  with 
the  evidence,  you  do  not  convict  one  or  both  the  prisoners  of  wilful 
murder,  and  it  is  wilful  murder  of  which  they  are  accused.  [The 
learned  judge  then  proceeded  to  review  the  evidence.  In  the  result 
the  jury  found  a  verdict  of  not  guilty  in  respect  to  each  of  the 
prisoners.]  Verdict^  not  guilty. 


STATE  V.   SMITH. 

Court  of  Appeals  of  South  Carolina.     1847. 

[Reported  2  Strobhart,  77.] 

James  Carter,  on  horseback,  overtook  a  large  and  noisy  crowd  of 
men  and  women  on  foot.  The  prisoner,  one  of  the  crowd,  fired  a 
pistol,  apparently  at  Carter,  but  did  not  hit  him.  The  bullet  struck  and 
killed  a  negro  boy  who  was  sitting  on  a  fence  beside  the  road,  unseen 
by  the  crowd. ^ 

The  prisoner  was  found  guilty  of  murder,  and  appealed,  on  the 
grounds  annexed :  — 

1.  That  his  Honor,  the  presiding  Judge,  misdirected  the  jury  in  his 
charge,  by  stating  the  law  to  be  "  that  if  the  prisoner  shot  at  Carter, 
designing  some  serious  injury,  as  the  falling  from  his  horse,  it  is 
murder." 

2.  That  his  Honor  charged  the  jury  that  "  if  the  prisoner  shot  at 
Carter  without  intending  to  kill  or  hurt  him,  it  is  manslaughter." 

3.  That  his  Honor  charged  the  jury  that  "  they  might  find  the 
prisoner  guilty  of  murder  or  manslaughter,  or  not  guilty." 

4.  That  the  verdict  was  contrary  to  law  and  evidence. 
Jlillei',  for  the  motion. 

Mclver,  Solicitor,  contra. 

Evans,  J.  delivered  the  opinion  of  the  court. 

The  jury  having  found  the  prisoner  guilty  of  murder,  there  is  no 
necessity  to  inquire  whether  he  could  have  been  convicted  of  man- 
slaughter on  this  indictment.  The  first  ground  is,  therefore,  the  onl}' 
one  necessar}'  to  be  considered.  The  proposition  presented  b}'  that 
ground  is  whether,  supposing  the  prisoner  "  shot  at  Carter,  designing 
to  do  him  some  serious  injury,  as  the  falling  from  his  horse,"  he  is 
guilt}'  of  the  crime  of  murder.  It  is  not  denied  that  this  question  is 
the  same  as  if  he  had  killed  Carter  instead  of  the  negro,  for  if  one 
design  to  kill  A.  but  b}'  accident  kills  B.~his  crime  is  the  same  as  if 
be  had  executed  his  intended  purpose.     It  will  be  murder,  or  mau- 

^  This  statement  is  condensed  from  that  of  the  reporter. 


SECT.  IV.]  COMMONWEALTH   V.    WEBSTER.  *"i73 

slaughter,  or  self-defence,  according  to  the  circumstances.     It  is  very 
clear  that  the  intent  with  which  an  act  is  done  very  often  gives  char- 
acter to  the  crime,  but  there  is  a  legal  conclusion  drawn  from  the  facts 
of  the  case,  entirely  independent  of  the  intent  of  the  party.     Thus  it  is 
said  in  2d  Starkie  Ev.  950,  that  "where  the  defence  is  that  the  death 
was  occasioned  by  accident,  the  nature  of  the  act  which  produced  the 
death,  and  the  real  motive  and  Intention  of  the  prisoner,  are  the  proper 
subjects  of  evidence,  but  the  conclusion  as  to  the  quality  of  the  offence, 
as  founded  upon  such  facts,  is  a  question  of  law."     The  whole  doctrine 
of  constructive  malice  is  founded  on  the  same  principle.     If  the  act 
which  produced  the  death  be  attended  with  such  circumstances  as  are 
the  ordinary  symptoms  of  a  wicked,  depraved,  and  malignant  spirit,  the 
law  from  these  circumstances  will  imply  malice,  without  reference  to 
what  was  passing  in  the  prisoner's  mind  at  the  time  he  committed  the 
act.     If  one  were  to  fire  a  loaded  gun  into  a  crowd,  or  throw  a  piece  of 
heavy  timber  from  the  top  of  a  house  into  a  street  filled  with  people, 
the  law  would  infer  malice  from  the  wickedness  of  the  act ;  so  also  the 
law  will  imply  that  the  prisoner  intended  the  natural  and  probable  conse- 
quences of  his  own  act ;  as,  in  the  case  of  shooting  a  gun  into  a  crowd, 
the  law  will  imply,  from  the  wantonness  of  the  act,  that  he  intended  to 
kill  some  one,   although  it  might  have  been   done  in  sport.     If  the 
prisoner's  object  had  been  nothing  more  than  to  make  Carter's  horse 
throw  him,  and  he  had  used  such  means  only  as  were  appropriate  to 
that  end,  then  there  would  be  some  reason  for  applying  to  his  case  the 
distinction  that  where  the  intention  was  to  commit  only  a  trespass  or 
a  misdemeanor,  an  accidental  killing  would  be  only  manslaughter.    But 
in  this  case  the  act  done  indicated  an  intention  to  kill ;  it  was  calcu- 
lated to  produce  that  effect,  and  no  other;    death  was  the  probable 
consequence,  and  did  result  from  it,  and  I  am  of  opinion  there  was  no 
error  in  the  charge  of  the  Circuit  Judge,  that  if  the  prisoner  shot  at 
Carter  the  crime  was  murder,  although  the  prisoner  may  have  designed 

only  to  do  Carter  "  some  serious  injur}-,  as  the  falling  from  his  horse."  ^ 

The  motion  is  therefore  dismissed.  xj  a^--^*''^''^ 

Richardson,  J.,  O'Neall,  J.,  Wardlaw,  J.,  Frost,  J.,  and  Withers,  ^-''^^ 
J.    concurred.  Motio?i  dismissed. 


J^^^^ 


COMMONWEALTH  v.  WEBSTER. 

Supreme  Judicial  Court  of  Massachusetts.     1850. 

[Reported  5  Cush.  296.] 

The  defendant,  professor  of  chemistry  in  the  medical  college  in 
Boston,  attached  to  the  university  at  Cambridge,  was  indicted  in  the 
municipal  court  at  the  January  terra,  1850,  for  the  murder  of  Dr.  George 
Parkman,  at  Boston,  on  the  23d  of  November,  1849.  The  indictment 
having  been  transmitted  to  this  court,  as  required  by  the  Rev.  Sts. 

43 


674 


COMMONWEALTH    V.   WEBSTER.  [CHAP.  XI. 


c.  136,  §  20,  the  defendant  was  tried  at  the  present  term,  before  the 
Chief  Justice,  and  Justices  Wilde,  Dewey,  and  Metcalf.^ 

The  government  introduced  evidence  that  Dr.  George  Parkman, 
quite  pecuhar  in  person  and  manners,  and  very  well  known  to  most 
persons  in  the  city  of  Boston,  left  his  home  in  Walnut  Street,  in  Bos- 
ton, in  the  forenoon  of  the  23d  of  November,  1849,  in  good  health  and 
spirits ;  and  that  he  was  traced  through  various  streets  of  the  city  until 
about  a  quarter  before  two  o'clock  of  that  day,  when  he  was  seen  going 
towards  and  about  to  enter  the  medical  college.  That  he  did  not  return 
to  his  home.  That  on  the  next  day  a  very  active,  particular,  and  ex- 
tended search  was  commenced  in  Boston  and  the  neighboring  towns 
and  cities,  and  continued  until  the  30th  of  November;  and  that  large 
rewards  were  offered  for  information  about  Dr.  Parkman.  That  on  the 
30th  of  November,  certain  parts  of  a  human  body  were  discovered  in  and 
about  the  defendant's  laboratory  in  the  medical  college  ;  and  a  great 
number  of  fragments  of  human  bones  and  certain  blocks  of  mineral  teeth, 
imbedded  in  slag  and  cinders,  together  with  small  quantities  of  gold, 
which  had  been  melted,  were  found  in  an  assay  furnace  of  the  laboratory. 
That  in  consequence  of  some  of  these  discoveries  the  defendant  was  ar- 
rested on  the  evening  of  the  30th  of  November.  That  the  parts  of  a 
body  so  found  resembled  in  every  respect  the  corresponding  portions 
of  the  body  of  Dr.  Parkman,  and  that  among  them  all  there  were  no 
duplicate  parts;  and  that  they  were  not  the  remains  of  a  body  which 
had  been  dissected.  That  the  artificial  teeth  found  in  the  furnace  were 
made  for  Dr.  Parkman  by  a  dentist  in  Boston  in  1846,  and  refitted  to 
his  mouth  by  the  same  dentist  a  fortnight  before  his  disappearance. 
That  the  defendant  was  indebted  to  Dr.  Parkman  on  certain  notes, 
and  was  pressed  by  him  for  payment;  that  the  defendant  had  said 
that  on  the  23d  of  November,  about  nine  o'clock  in  the  morning,  he 
left  word  at  Dr.  Parkman's  house  that,  if  he  would  come  to  the  medical 
college  at  half-past  one  o'clock  on  that  day,  he  would  pay  him  ;  and 
that,  as  he  said,  he  accordingly  had  an  interview  with  Dr.  Parkman  at 
half-past  one  o'clock  on  that  day,  at  his  laboratory  in  the  medical  col- 
lege. That  the  defendant  then  had  no  means  of  paying,  and  that  the 
notes  were  afterwards  found  in  his  possession. 

The  opinion  of  the  court  on  the  law  of  the  case  was  given  in  the 
charge  to  the  jury  as  follows :  — 

Shaw,  C.  J.  Homicide,  of  which  murder  is  the  highest  and  most 
criminal  species,  is  of  various  degrees,  according  to  circumstances. 
The  term;  in  the  largest  sense,  is  generic,  embracing  every  mode  by 
which  the  life  of  one  man  is  taken  b}'  the  act  of  another.  Homicide 
may  be  lawful  or  unlawful ;  it  is  lawful  when  done  in  lawful  war  upon 
an  enem}'  in  battle ;  it  is  lawful  when  done  b}'  an  officer  in  the  execu- 
tion of  justice  upon  a  criminal,  pursuant  to  a  proper  warrant.  It  may 
also  be  justifiable,  and  of  course  lawful,  in  necessarj'  self-defence.    But 

1  Part  of  the  case  is  omitted.  —  Ed. 


SECT.  IV.]  COMMONWEALTH    V.    WEBSTER.  675 

it  is  not  necessan-  to  dwell  on  these  distinctions ;  it  will  be  sufficient 
to  ask  attention  to  the  two  species  of  criminal  homicide,  familiarly 
known  as  murder  and  manslaughter. 

In  seeking  for  the  sources  of  our  law  upon  this  subject,  it  is  proper 
to  sa}',  that  whilst  the  statute  law  of  the  commonwealth  declares  (Rev. 
Sts.  c.  125,  §  1)  that  "  Every  person  who  shall  commit  the  crime  of 
murder  shall  suffer  the  punishment  of  death  for  the  same,"  3-et  it  no- 
where defines  the  crimes  of  murder  or  manslaughter,  with  all  their 
minute  and  carefully-considered  distinctions  and  qualifications.  For 
these,  we  resort  to  that  great  repository  of  rules,  principles,  and  forms, 
the  common  law.  This  we  commonly  designate  as  the  common  law  of 
England  ;  but  it  might  now  be  properly  called  the  common  law  of 
Massachusetts.  It  was  adopted  when  our  ancestors  first  settled  here, 
by  general  consent.  It  was  adopted  and  confirmed  by  an  early  act  of 
the  provincial  government,  and  was  formally  confirmed  by  the  provis- 
ion of  the  constitution  (c.  6,  art.  6)  declaring  that  all  the  laws  wliich 
had  theretofore  been  adopted,  used,  and  approved,  in  the  province  or 
state  of  Massachusetts  ba}',  and  usually  practiced  on  in  the  courts  of 
law,  should  still  remain  and  be  in  full  force  until  altered  or  repealed  by 
the  legislature.  So  far,  therefore,  as  the  rules  and  principles  of  the 
common  law  are  applicable  to  the  administration  of  criminal  law,  and 
have  not  been  altered  and  modified  by  acts  of  the  colonial  or  provincial 
government,  or  by  the  state  legislature,  they  have  the  same  force  and 
effect  as  laws  formall}'  enacted. 

By  the  existing  law,  as  adopted  and  practiced  on,  unlawful  homicide 
is  distinguished  into  murder  and  manslaughter. 

Murder,  in  the  sense  in  which  it  is  now  understood,  is  tke  killing^of. 
any  person  in  the  peace  of  tlie  commonwealth,  with  malice  afore- 
thought,  either  express  or  implied  by  law.  Malice,  in  this  definition, 
is  used_jn  a  technical  sense,  including  not  only  anger,  hatred,  and 
revenge,  but  every  other  unlawful  and  unjustifiable  motive.  It  is  not 
confined  to  ill-will  towards  one  or  more  individual  persons,  but  is  in- 
tended to  denote  an  action  flowing  from  any  wicked  and  corrupt 
motive,  a  thing  done  malo  animo^  where  the  fact  has  been  attended 
with  such  circumstances  as  carry  in  them  the  plain  indications  of  a 
heart  regardless  of  social  duty,  and  fatally  bent  on  mischief.  And 
therefore  malice  is  implied  from  any  deliberate  or  cruel  act  against 
another,  however  sudden. 

Manslaughter  is  the  unlawful  killing  of  another  without  malice  ;  and 
may  be  either  voluntary,  as  when  the  act  is  committed  with  a  real 
design  and  purpose  to  kill,  but  through  the  violence  of  sudden  passion, 
occasioned  by  some  great  provocation  which,  in  tenderness  for  the 
frailty  of  human  nature,  the  law  considers  sufficient  to  palliate  the 
criminality  of  the  oflfence  ;  or  involuntary,  as  when  the  death  of  another 
is  caused  by  some  unlawful  act,  not  accompanied  by  any  intention  to 
take  life. 

From  these  two  definitions  it  will  be  at  once  perceived  that  the 


^^Uf^vM—vv^ 


676  COMMONWEALTH    V.   WEBSTER.  [CHAP.  XI. 

characteristic  distinction  between  murder  and  manslaugliter  is  malice, 
express  or  implied.  It  therefore  becomes  necessary  in  every  case  of 
homicide  proved,  and  in  order  to  an  intelligent  inquiry  into  tlie  legal 
character  of  the  act,  to  ascertain  with  some  precision  the  nature  of  legal 
malice,  and  what  evidence  is  requisite  to  establish  its  existence. 

Upon  this  subject  the  rule,  as  deduced  from  the  authorities,  is  tliat 
the  implication  of  malice  arises  in  every  case  of  intentional  homicide  ; 
and,  the  fact  of  killing  being  first  proved,  all  the  circumstances  of  acci- 
dent, necessity,  or  infirmity,  are  to  be  satisfactorily  established  by  the 
party  charged,  unless  they  arise  out  of  the  evidence  produced  against 
him  to  prove  the  homicide  and  the  circumstances  attending  it.  If  there 
are,  in  fact,  circumstances  of  justification,  excuse,  or  palliation,  such 
proof  will  naturally  indicate  them.  But  where  the  fact  of  killing  is 
proved  by  satisfactory  evidence,  and  there  are  no  circumstances  dis- 
closed tending  to  show  justification  or  excuse,  there  is  nothing  to  rebut 
the  natural  presumption  of  malice.  This  rule  is  founded  on  the  plain 
and  obvious  principle  that  a  person  must  be  presumed  to  intend  to  do 
that  which  he  voluntarily  and  wilfully  does  in  fact  do,  and  that  he  must 
intend  all  the  natural,  probable,  and  usual  consequences  of  his  own 
acts.  Therefore,  when  one  person  assails  another  violently  with  a 
dangerous  weapon  likely  to  kill,  and  which  does  in  fact  destroy  the 
life  of  the  party  assailed,  the  natural  presumption  is  that  he  intended 
death  or  other  great  bodily  harm ;  and,  as  there  can  be  no  presump- 
tion of  any  proper  motive  or  legal  excuse  for  such  a  cruel  act,  the  con- 
sequence follows  that,  in  the  absence  of  all  proof  to  the  contrary,  there 
is  nothing  to  rebut  the  presumption  of  malice.  On  the  other  hand,  if 
death,  though  wilfully  intended,  was  inflicted  immediately  after  provo- 
cation given  by  the  deceased,  supposing  that  such  provocation  consisted 
of  a  blow  or  an  assault,  or  other  provocation  on  his  part,  which  the  law 
deems  adequate  to  excite  sudden  and  angry  passion  and  create  heat  of 
blood,  this  fact  rebuts  the  presumption  of  malice ;  but  still,  the  homi- 
cide being  unlawful,  because  a  man  is  bound  to  curb  his  passions,  is 
criminal,  and  is  manslaughter. 

In  considering  what  is  regarded  as  such  adequate  provocation,  it  is 
a  settled  rule  of  law  that  no  provocation  by  words  only,  however 
opprobrious,  will  mitigate  an  intentional  homicide  so  as  to  reduce  it  to 
manslaughter.  Therefore,  if,  upon  provoking  language  given,  the  party 
immediately  revenges  himself  by  the  use  of  a  dangerous  and  deadly 
weapon  likely  to  cause  death,  such  as  a  pistol  discharged  at  the  person, 
a  heavy  bludgeon,  an  axe,  or  a  knife,  if  death  ensues,  it  is  a  homicide 
not  mitigated  to  manslaughter  by  the  circumstances,  and  so  is  homicide 
by  malice  aforethought  within  the  true  definition  of  murder.  It  is  not 
the  less  malice  aforethought,  within  the  meaning  of  the  law,  because 
the  act  is  done  suddenly  after  the  intention  to  commit  the  homicide 
is  formed ;  it  is  sufficient  that  the  malicious  intention  precedes  and 
accompanies  the  act  of  homicide.  It  is  manifest,  therefore,  that  the 
words  "  malice  aforethought,"  in  the  description  of  murder,  do  not 


SECT.  lY.]  HADLEY   V.    STATE.  677 

imply  deliberation,  or  the  lapse  of  considerable  time  between  the  mali- 
cious intent  to  take  life  and  the  actual  execution  of  that  intent,  but 
rather  denote  purpose  and  design  in  contradistinction  to  accident  and 
mischance. 

In  speaking  of  the  use  of  a  dangerous  weapon,  and  the  mode  of  using 
it  upon  the  person  of  another,  I  have  spoken  of  it  as  indicating  an  in- 
tention to  kill  him,  or  do  him  great  bodily  harm.  The  reason  is  this  : 
Where  a  man,  without  justification  or  excuse,  causes  the  death  of  an- 
other by  the  intentional  use  of  a  dangerous  weapon  likel}-  to  destroy 
life,  he  is  responsible  for  the  consequences,  upon  the  principle  already' 
stated,  that  he  is  liable  for  the  natural  and  probable  consequences  of 
his  act.  Suppose,  therefore,  for  the  purpose  of  revenge,  one  fires  a 
pistol  at  another,  regardless  of  consequences,  intending  to  kill,  maim, 
or  grievously  wound  him,  as  the  case  may  be,  without  any  definite  inten- 
tion to  take  his  life ;  yet,  if  that  is  the  result,  the  law  attributes  the 
same  consequences  to  homicide  so  committed,  as  if  done  under  an  actual 
and  declared  purpose  to  take  the  life  of  tlie  part\'  assailed.   .   .   . 

The  true  nature  of  manslaughter  is  that  it  is  homicide  mitigated  out 
of  tenderness  to  the  frailtj'  of  human  nature.  Every  man,  when  as- 
sailed with  violence  or  great  rudeness,  is  inspired  with  a  sudden  impulse 
of  anger,  which  puts  him  upon  resistance  before  time  for  cool  reflec- 
tion ;  and  if,  during  that  period,  he  attacks  his  assailant  with  a  weapon 
likely  to  endanger  life,  and  death  ensues,  it  is  regarded  as  done  through 
heat  of  blood,  or  violence  of  anger,  and  not  through  malice,  or  that 
cold-blooded  desire  of  revenge  which  more  properly  constitutes  the 
feeling,   emotion,  or  passion  of  malice. 

The  same  rule  applies  to  homicide  in  mutual  combat,  which  is  attrib- 
uted to  sudden  and  violent  anger  occasioned  by  the  combat,  and  not  to 
malice.  When  two  meet,  not  intending  to  quarrel,  and  angry  words 
suddenly  arise,  and  a  conflict  springs  up  in  which  blows  are  given  on 
both  sides,  without  much  regard  to  who  is  the  assailant,  it  is  a  mutual 
combat.  And  if  no  unfair  advantage  is  taken  in  the  outset,  and  the  oc- 
casion is  not  sought  for  the  purpose  of  gratifying  malice,  and  one  seizes 
a  weapon  and  strikes  a  deadly  blow,  it  is  regarded  as  homicide  in  heat 
of  blood  ;  and  though  not  excusable,  because  a  man  is  bound  to  control 
his  angry  passions,  yet  it  is  not  the  higher  off"ence  of  murder. 


HADLEY  V.   STATE. 
Supreme  Court  of  Alabama.     1876. 

[Reported  55  Alabama,  31.] 

Stone,  J.^ — Mr.  Wharton,  the  able  author  of  the  works  on  Criminal 
Law,  and  on  Homicide,  has  contributed  an  article  to  the  "  Forum," 
April  number,  1875,  in  which  he  attempts  to  show  that  there  has  been. 

^  Part  of  the  opiuion  only  is  given. 


678  HADLEY   V.    STATE.  [CHAP.  XI. 

a  revolution  in  criminal  law,  in  the  matter  of  presumed  malice.  In 
his  work  on  Homicide,  2d  ed.,  §  671,  he  asserts  the  same  doctrine,  and 
says,  "  If  it  be  said  that  the  use  of  a  weapon,  likely  to  inflict  a  mortal 
blow,  implies,  as  a  presumption  of  law,  in  its  technical  sense,  a  deadly 
design,  this  is  an  error;  and  a  fortiori  is  it  so  when  it  is  said  the  use 
of  such  a  weapon  implies  a  malicious  design." 

Malice,  design,  and  motive,  are,  as  a  rule,  but  inferential  facts. 
They  are  inferred  from  facts  and  circumstances  positiveh'  proven.  If 
direct,  positive  proof  of  them  were  required,  it  could  rarely  be  given. 
Still,  we  know  they  exist ;  and  when  sufficient  facts  are  in  evidence  to 
justify  us  in  drawing  such  inference,  we  rest  as  securel}'  in  the  convic- 
tion as  if  it  were  forced  upon  us  by  positive  proof  The  measure  of 
evidence,  however,  to  justify  such  abiding  conviction,  must  be  very 
full,  —  so  full  as  to  exclude  every  other  reasonable  hypothesis. 

That  ever}'  one  must  be  held  to  intend  the  known  consequences  of 
his  intentional  act,  is  a  recognized  canon  of  moral  accountability,  and 
of  municipal  law.  Malice,  as  an  ingredient  of  murder,  is  but  a  formed 
design,  by  a  sane  mind,  to  take  life  unlawfully,  without  such  impending 
danger,  to  be  averted  thereb}',  as  will  render  it  excusable,  and  with- 
out such  provocation  as  will  repel  the  imputation  of  formed  design. 
Hence,  when  life  is  taken  by  the  direct  use  of  a  deadl}-  weapon,  the 
canon,  stated  above,  comes  to  its  aid  ;  and,  if  there  be  nothing  else  in 
the  transaction  —  no  qualifying  or  exjjlanator}'  circumstance  —  the  con- 
clusion is  irresistible  that  the  killing  was  done  pursuant  to  a  formed 
design,  —  in  other  words,  with  malice  aforethought;  for  malice,  in  such 
connection,  is  but  the  absence  of  impending  peril  to  life  or  member, 
which  would  excuse  the  homicide,  and  of  sufficient  provocation  to  repel 
the  imputation  of  its  existence. 

In  Foster's  Crown  Law,  it  is  said,  "  In  every  charge  of  murder,  the 
fact  of  killing  being  first  proved,  all  the  circumstances  of  accident, 
necessity,  or  infirmity,  are  to  be  satisfactorily  proved  by  the  prisoner, 
unless  they  arise  out  of  the  evidence  produced  against  him  ;  for  the  law 
presumeth  the  fact  to  have  been  founded  in  malice,  until  the  contrary 
appeareth  ;  and  very  right  it  is  that  the  law  should  so  presume."  The 
same  doctrine  is  affirmed  in  all  the  older  writers  and  adjudications  on 
criminal  law. 

Sir  Wm.  Blackstone  (4  Com.  201)  says:  "  We  may  take  it  for  a 
general  rule  that  all  homicide  is  malicious,  and,  of  course,  amounts 
to  murder,  unless  when  justified,  excused,  or  alleviated  into  man- 
slaughter; and  all  these  circumstances  of  justification,  excuse,  or 
alleviation,  it  is  incumbent  on  the  prisoner  to  make  out  to  the  satisfac- 
tion of  the  court  and  jury." 

In  the  case  of  Webster  v.  Commonwealth,  5  Cush.  206,  the  case 
stood  on  the  naked  proof  of  the  homicide,  without  any  of  the  attendant 
circumstances.     Ch.  J.  Shaw  declared  the  law  as  above  quoted. 

The  case  of  People  v.  Schryver,  42  N.  Y.  1,  is  a  very  careful  and 
full  collection  and  collation  of  authorities,  English  and  American,  am( 


SECT,  v.]  DEGREES   OF   MUKDER.  679 

fully  sustains  the  doctrine  above  declared.  See  also  Tweedy  v.  State, 
5  Iowa,  433  ;  Silvus  v.  State,  22  Ohio  St.  90.  The  case  of  Stokes  v. 
The  People,  53  N.  Y.  164,  properly  understood,  is  not  materially 
opposed  to  this  view.  The  charge  of  the  judge  in  that  case  invaded 
the  province  of  the  jury  ;  and,  in  addition  to  this,  the  case  was  made  to 
turn  materially  on  the  statutes  of  New  York.  The  charge  in  that  case 
went  much  beyond  the  principle  above  copied  from  the  old  authors. 

The  charge  in  the  present  case  is  precisely  that  which  was  given  in 
the  case  of  Murphy  v.  The  State,  37  Ala.  142.  In  that  case  this  court 
held  that  the  charge  was  free  from  error.  We  are  unwilling  to  depart 
from  that  decision,  and,  in  doing  so,  from  an  old  landmark  which  has 
for  centuries  withstood  the  test  of  time,  and  the  combined  wisdom  of 
jurists  on  both  sides  of  the  Atlantic.  There  is  a  lamentable  and  grow- 
ing laxity  in  the  administration  of  the  criminal  law,  which  is  seen  and 
deplored  by  all  good  men.  Life  is  not  sufficiently  cared  for ;  its 
destruction  not  punished  with  sufficient  severity.  Until  the  reckless 
and  rash  are  taught,  by  firm  judges  and  stern  juries,  that  the  slayer  of 
his  brother  can  invoke  the  shield  of  self-defence  only  when,  without 
sufficient  provocation  from  him,  his  life  was  in  peril,  or  his  body 
exposed  to  grievous  injury  ;  that  homicide  by  him  cannot  be  mitigated 
to  the  lesser  ofl[ence  of  manslaughter,  unless  the  jury  are  convinced 
that  the  killing  was  unpremeditated,  and  the  result  of  sudden  passion, 
excited  by  present  injury  more  grievous  than  words,  we  fear  that  the 
calendar  of  bloody  crimes  is  destined  to  know  no  diminution  in  its 
numbers.  The  terrors  of  certain  punishment  are  the  onlj-  sure  means 
of  restraining  the  evil-minded. 


SECTION  V. 
Degrees  of  Murder. 

Revised  Laws  of  Massachusetts,  ch.  207,  Sect.  1.  Murder  com- 
mitted with  deliberately  premeditated  malice  aforethought  or  with 
extreme  atrocity  or  cruelty,  or  in  the  commission  or  attempted  com- 
mission of  a  crime  punishable  with  death  or  imprisonment  for  life,  is 
murder  in  the  first  degree.  Murder  which  does  not  appear  to  be  in  the 
first  degree  is  murder  in  the  second  degree.  The  degree  of  murder 
shall  be  found  by  the  ]my. 

Penal  Code  of  New  York,  Sects.  183,  184.  The  killing  of  a  human 
being,  unless  it  is  excusable  or  justifiable,  is  murder  in  the  first  degree 
when  committed  either  from  a  deliberate  and  premeditated  design  to 
eflfect  the  death  of  the  person  killed,  or  of  another;  or  by  an  act 
imminently  dangerous  to  others,  and  evincing  a  depraved  mind,  regartl- 


580  LEIGHTON  V.    PEOPLE.  [CHAP.  XI. 

less  of  human  life,  although  without  a  premeditated  design  to  effect  the 
death  of  any  individual ;  or  without  a  design  to  efiect  death,  by  a 
person  engaged  in  the  commission  of,  or  in  an  attempt  to  commit  a 
felony,  either  upon  or  affecting  the  person  killed  or  otherwise  ;  or  when 
perpetrated  in  committing  the  crime  of  arson  in  the  first  degree.  Such 
killing  of  a  human  being  is  murder  in  the  second  degree  when  com- 
mitted with  a  design  to  effect  the  death  of  the  person  killed,  or  of 
another,  but  without  deliberation  and  premeditation. 


LEIGHTON  V.  PEOPLE. 
Court  of  Appeals  of  New  York.     1882. 

[Reported  88  New  Ymk,  117.] 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  first  judicial 
department,  to  review  judgment  entered  upon  an  order  made  May  20, 
1881,  which  affirmed  a  judgment  of  the  Court  of  Oyer  and  Terminer 
of  the  County  of  New  York,  entered  upon  a  verdict  convicting  the 
plaintiff  in  error  of  the  crime  of  murder  in  the  first  degree. 

The  material  facts  appear  in  the  opinion.^ 

Danforth,  J.  At  its  close  the  prisoner's  counsel  "  excepted  to 
all  portions  of  the  charge  in  reference  to  the  question  of  the  time 
required  for  premeditation  and  deliberation."  To  bring  tlie  case  within 
the  statutory  definition  of  murder  in  the  first  degree  it  was  necessary 
that  the  crime  should  be  "  perpetrated  from  the  deliberate  and  pre- 
meditated design  to  efPect  the  death  of  the  person  killed."  Laws  of 
1873,  chap.  644,  §  5.  An  act  co-existent  with  and  inseparable  from  a 
sudden  impulse,  although  premeditated,  could  not  be  deemed  deliberate, 
as  when  under  sudden  and  great  provocation  one  instantly,  although 
intentionall}',  kills  another.  But  the  statute  is  not  satisfied  unless  the 
intention  was  deliberated  upon.  If  the  impulse  is  followed  by  reflec- 
tion, that  is  deliberation  ;  hesitation  even  may  imply  deliberation  ;  so 
may  threats  against  another  and  selection  of  means  with  which  to  per- 
petrate the  deed.  If,  therefore,  the  killing  is  not  the  instant  effect  of 
impulse,  if  there  is  hesitation  or  doubt  to  be  overcome,  a  choice  made 
as  the  result  of  thought,  however  short  the  struggle  between  the  inten- 
tion and  the  act,  it  is  sufficient  to  characterize  the  crime  as  deliberate 
and  premeditated  murder. 

The  charge  upon  this  point  was  most  favorable  to  the  prisoner. 
After  stating  the  statute  {siqyra)  the  judge  said  :  "  There  must  therefore 
be,  in  order  to  establish  the  crime  of  murder  in  the  first  degree,  delibera- 
tion and  premeditation  ;  but  there  is  no  time  prescribed  within  which 

1  Only  so  mucli  of  the  case  as  relates  to  the  degree  of  the  murder  is  given. 


SECT.  VI.]  LORD  MOELY'S  CASE.  681 

these  operations  of  the  mind  must  occur;  it  is  sufficient  if  their  exercise 
was  accomplished  when  the  deed  was  done  resulting  in  the  death." 
Again  he  said:  "It  is  enough  if  there  is  time  for  the  mind  to  think 
upon,  to  consider  the  act  of  killing,  to  meditate  upon  it,  to  weigh  it, 
and  then  to  determine  to  do  it."  Immediately  after  this  follows  that 
portion  of  the  charge  to  which  the  learned  counsel  for  the  appellant 
directs  our  attention.  ''For  example,"  said  the  judge,  "if  I,  having 
from  any  reason,  it  matters  not  what,  an  enmity  toward  another,  should 
start  from  this  point  and  walk  to  the  corner  of  Chambers  Street,  weigh 
in  my  mind,  deliberate  upon,  and  premeditate  a  deadly  assault  upon 
another,  and  at  that  corner,  meeting  there  the  person  toward  whom  m}^ 
thoughts  were  directed,  I  struck  the  deadly  blow,  that  would  be  suffi- 
cient deliberation  and  sufficient  premeditation  to  perfect  the  crime  of 
murder  in  the  first  degree.  It  is  enough  that  the  mind  operates  in  these 
two  respects  to  accomplish  it  and  to  present  all  tlie  elements  that  are 
necessary  to  establish  murder  in  the  first  degree." 

In  this  there  was  no  error. .  Then  followed  a  statement  of  the  evi- 
dence bearing  upon  the  proposition  just  laid  down.  It  has  been  recited 
in  the  learned  and  elaborate  opinion  of  the  court  below,  its  correctness 
has  not  been  denied  by  the  appellant's  counsel,  and  it  need  not  be  , 

repeated.    It  was  in  our  opinion  quite  enough  for  submission  to  the  X 

jury. 


SECTION  VI. 

Manslaughter. 


:u^ 


y^ 


>\ 


LORD   MORLY'S   CASE. 
Resolution  of  the  Judges.     1666.7 

[Reported  Kelyng,  53.] 

Memorandum,  that  upon  Saturda}^  the  28th  of  April,  1666,  Ann,  18 
Car.  2,  all  tlie  judges  of  England,  viz.,  myself,  J.  K.,  Lord  Chief  Jus- 
tice of  the  King's  Bench ;  Sir  Orl.  Bridgman,  Lord  Chief  Justice  of 
the  Common  Pleas  ;  Sir  Matthew  Hales,  Chief  Baron  of  the  Exchequer ; 
my  brother  Atkins,  Brother  Twisden,  Brother  Tyrell,  Brother  Turner, 
Brother  Browne,  Brother  Windham,  Brother  Archer,  Brother  Rainsford, 
and  Brother  Morton,  met  together  at  Serjeant's  Inn  in  Fleet  Street,  to 
consider  of  such  things  as  might  in  point  of  law  fall  out  in  the  trial  of 
the  Lord  Morly,  who  was  on  Monda}'  to  be  tried  b}'  his  peers  for  a 
murder  ;  and  we  did  all  una  voce  resolve  several  things  following  :  — 

1}  Agreed,  that  no  words,  be  they  what  they  will,  are  in  law  such 
a  provocation  as,  if  a  man  kill  another  for  words  only,  will  diminish  the 

1  Only  the  7th  and  8th  resolutions  axe  given. 


682  huggett's  case.    •  [chap.  xi. 

offence  of  killing  a  man  from  murder  to  be  manslaughter  ;  as  suppose 
one  call  another  son  of  a  whore,  or  give  him  the  lie,  and  thereupon  he 
to  whom  the  words  are  given,  kill  the  other,  this  is  murder.  But  if 
upon  ill  words,  both  the  parties  suddenly  fight,  and  one  kill  the  other, 
this  is  but  manslaughter,  for  it  is  a  combat  betwixt  two  upon  a  sudden 
heat,  which  is  the  legal  description  of  manslaughter ;  and  we  were  all 
of  opinion  that  the  statute  of  1  Jac.  for  stabbing  a  man  not  having  first 
struck,  nor  having  any  weapon  drawn,  was  onl}-  a  declaration  of  the 
common  law,  and  made  to  prevent  the  inconveniencies  of  juries,  who 
were  apt  to  believe  that  to  be  a  provocation  to  extenuate  a  murder 
which  in  law  was  not. 

8.  Agreed,  that  if  upon  words  two  men  grow  to  anger,  and  afterwards 
they  suppress  that  anger,  and  then  fall  into  other  discourses,  or  have 
otlier  diversions  for  such  a  space  of  time  as  in  reasonable  intendment 
their  heat  might  be  cooled,  and  some  time  after  the\'  draw  one  upon 
another,  and  fight,  and  one  is  killed,  this  is  murder,  because  being 
attended  with  such  circumstances  as  it  is  reasonabU'  supposed  to  be  a 
deliberate  act,  and  a  premeditated  revenge  upon  the  first  quarrel ;  but 
the  circumstances  of  such  an  act  being  matter  of  fact,  the  jury  are 
judges  of  those  circumstances. 


HUGGETT'S  CASE. 
Crown  Case  Reserved.     1666. 

[Reported  Kelyng,  59.] 

At  a  gaol-delivery  at  Newgate,  25  April,  1666,  18  Car.  2,  upon 
an  indictment  of  murder  against  Hopkin  Huggett,  a  special  verdict  was 
found  to  this  effect:  We  find  that  John  Berr}-,  and. two  others  with 
him,  the  day  and  place  in  the  inquisition,  had  de  facto,  but  without  war- 
rant (for  aught  appears  to  us),  impressed  a  man  whose  name  is  not  yet 
known,  to  serve  in  his  Majesty's  service  in  the  wars  against  the  Dutch 
nation  ;  that  thereupon,  after  the  unknown  man  was  impressed,  he  with 
the  said  John  Berry,  went  together  quietly  into  Cloth-fair ;  and  the  said 
Hopkin  Huggett  and  three  others,  walking  together  in  the  rounds  in 
Smithfield,  and  seeing  the  said  Berry  and  two  others  with  the  man  im- 
pressed, going  into  Cloth-fair,  instantly  pursued  after  them,  and  over- 
taking Berry  and  the  impressed  man  and  the  two  other  men,  required 
to  see  their  warrant,  and  Berry  showed  them  a  paper  which  Hopkin 
Huggett  and  the  three  others  said  was  no  warrant ;  and  immediate!}' 
the  said  H.  Huggett  and  the  three  others  drew  their  swords  to  rescue 
the  said  man  impressed,  and  did  thrust  at  the  said  John  Berr}- ;  and 
thereupon  the  said  John  Berry  and  the  two  others  with  him  did  draw 
their  swords  and  fight  together ;  and  thereupon  the  said  H.  Huggett 
did  give  the  wound  in  the  inquisition  to  the  said  John  Berry,  whereof 


SECT.  VI.] "  -     HUGGETT's  CASE.  683 

he  instantly  died ;  and  if  upon  the  whole  matter,  the  said  H.  Hug- 
gett  be  guilty  of  murder  they  find  so  ;  if  of  manslaughter  they  find  so, 
&c.  All  the  judges  of  England  being  met  together,  at  Serjeant's  Inn, 
in  Fleet  Street,  upon  other  occasions  (and  before  that  time  having 
copies  of  this  special  verdict  sent  unto  them),  after  the  other  business 
dispatched  they  were  desired  to  give  their  opinions  in  this  case, 
whether  they  held  it  to  be  murder  or  manslaughter.  And  the  Lord 
Chief  Justice  Bridgman,  Lord  Chief  Baron  Hales,  my  brother  Atkins, 
Brother  Tyrell,  Brother  Turner,  Brother  Browne,  Brother  Archer,  and 
Brother  Rainsford,  having  had  the  notes  of  the  special  verdict  three  days 
before,  deHvered  their  opinion  as  then  advised,  but  they  said  they 
would  not  be  bound  by  it :  that  this  was  no  murder,  but  only  man- 
slaughter ;  and  they  said  that  if  a  man  be  unduly  arrested  or  restrained 
of  his  liberty  by  three  men,  although  he  be  quiet  himself,  and  do  not  en- 
deavor any  rescue,  yet  this  is  a  provocation  to  all  other  men  of  Eng- 
land, not  only  his  friends  but  strangers  also,  for  common  humanity  sake, 
as  my  Lord  Bridgraan  said,  to  endeavor  his  rescue ;  and  if  in  such 
endeavor  of  rescue  they  kill  any  one,  this  is  no  murder,  but  only  man- 
slaughter ;  and  my  brother  Browne  seemed  to  rely  on  a  case  in  Coke 
12  Rep.  p.  87,  where  divers  men  were  playing  at  bowls,  and  two  of 
them  fell  out  and  quarrelled,  one  with  another,  and  a  third  man  who 
had  no  quarrel,  in  revenge  of  his  friend  struck  the  other  with  a  bowl, 
of  which  blow  he  died  ;  this  was  held  to  be  only  manslaughter.  But 
myself.  Brother  Twisden,  Brother  Windham,  and  Brother  Morton, 
were  of  another  opinion  ;  and  we  held  it  to  be  a  murder,  because  there 
was  (as  we  thought)  no  provocation  at  all.  And  if  one  man  assault 
another  without  provocation,  and  kill  him,  this  is  murder ;  the  law  in 
that  case  implying  malice.  And  we  find  it  was  resolved  by  all  the 
judges  in  the  Lord  Morly's  case  that  no  words,  be  they  what  they 
will,  were  such  a  provocation  in  law  as,  if  upon  them  one  kills  another, 
would  diminish  or  lessen  the  offence  from  being  murder  to  be  but  man- 
slaughter. As  if  one  calleth  another  son  of  a  whoi-e,  and  giveth  him 
the  lie,  and  upon  those  words  the  other  kill  him  that  gave  the  words ; 
this,  notwithstanding  those  words,  is  murder ;  and  we  thought  those 
words  were  apter  to  provoke  a  man  to  kill  another  than  the  bare  see- 
ing a  man  to  be  unduly  pressed  when  the  party  pressed  willingly  renders 
himself.  But  we  held  that  such  a  provocation  as  must  take  oflT  the  kill- 
ing of  a  man  from  murder  to  be  but  manslaughter,  must  be  some  open 
violence,  or  actual  striving  with,  or  striking  one  another ;  and  that 
answers  the  case  cited  by  my  brother  Browne.  For  there  it  must  be 
intended  that  the  two  men  that  fell  out  were  actually  fighting  together ; 
for  if  there  passed  only  words  betwixt  these  two,  and  upon  them,  a 
third  person  struck  one  of  them  with  a  bowl,  and  killed  him,  we  held 
that  to  be  murder.  And  to  this  my  Lord  Bridgman  and  the  other 
judges  agreed,  and  we  thought  the  case  in  question  to  be  much  the 
stronger,  because  the  party  himself  who  was  impressed  was  quiet,  and 
made  no  resistance,  and  they  who  meddled  were  no  friends  of  his,  or 


684  huggett's  case.  [chap.  xi. 

acquaintance,  but  were  strangers,  and  did  not  so  much  as  desire  them 
which  had  him  in  custody  to  let  him  go,  but  presently-  without  more 
ado,  drew  their  swords  at  them,  and  ran  at  them.  And  we  thought  it 
to  be  of  dangerous  consequence  to  give  any  encouragement  to  private 
men  to  take  upon  themselves  to  be  the  assertoi:s  of  other  men's  liberties, 
and  to  become  patrons  to  rescue  them  from  wrong ;  especially  in  a  na- 
tion where  good  laws  are  for  the  punishment  of  all  such  injuries,  and  one 
great  end  of  law  is  to  right  men  by  peaceable  means,  and  to  dis- 
countenance all  endeavors  to  right  themselves,  much  less  other  men  by 
force. 

Secondl}',  we  four  were  of  opinion  that  if  A.  assault  B.  without  any 
provocation,  and  draw  his  sword  at  him,  and  run  at  him  ;  and  then  B. 
to  defend  himself  draw  his  sword,  and  they  fight  together.  If  A.  kill 
B.  it  is  murder,  and  B.  drawing  his  sword  to  defend  himself  shall 
not  lessen  the  offence  of  A.  from  being  murder  to  be  manslaughter 
only ;  and  to  this  the  other  judges  did  (as  I  take  it)  agree,  for  it  were 
unreasonable  that  if  one  man  draw  upon  another,  and  run  at  him  with- 
out any  provocation  that  the  other  man  should  stand  still,  and  not 
defend  himself,  and  it  is  also  unreasonable  that  his  endeavor  to  defend 
himself  should  lessen  the  offence  of  him  who  set  upon  him  without  prov- 
ocation. 

But  we  four  held  that  if  two  men  be  quarrelling,  and  actuall}'  fight- 
ing together,  and  another  man  runneth  in  to  aid  one  of  them  and  kill  the 
other,  this  is  but  manslaughter,  because  there  was  an  actual  fighting 
and  striving  with  violence. 

So  we  held,  if  such  people  who  are  called  spirits  take  up  a  youth,  or 
other  person  to  carr}"  him  away,  and  thereupon  there  is  a  tumult  raised, 
and  several  persons  run  in,  and  there  is  a  man  killed  in  the  fray,  this 
is  but  manslaughter ;  for  there  is  an  open  affray,  and  actual  force,  which 
is  a  sudden  provocation,  and  so  that  death  which  ensueth  is  but  man- 
slaughter. But  where  people  are  at  peace,  there,  if  another  man  upon 
suspicion  that  an  injur}'  is  done  to  one  of  them,  will  assault  and  kill 
him  whom  he  thinketh  did  the  injur}',  this  is  murder,  so  that  we  hold 
nothing  but  an  open  affray  or  striving  can  be  a  provocation  to  any  per- 
son to  meddle  with  an  injury  done  to  another,  if  in  that  meddling  he 
kill  a  man,  to  diminish  or  lessen  the  offence  from  murder  to  man- 
slaughter. 

Memorandum  :  After  this  difference  I  granted  a  certiorari  to  remove 
the  cause  into  the  King's  Bench,  to  be  argued  there,  and  to  receive  a 
final  and  legal  determination  ;  and  although  all  the  judges  of  the  court 
were  clearl}'  of  opinion  that  it  was  murder,  3'et  it  being  in  case  of  life, 
we  did  not  think  it  prudent  to  give  him  judgment  of  death,  but  admitted 
him  to  his  clergy ;  and  after  he  read,  and  was  burnt  in  the  hand, 
we  ordered  him  to  lie  in  prison  eleven  months  without  bail,  and  after- 
wards until  he  found  sureties  to  be  of  the  good  behavior  during  his  life.^ 

1  See  on  this  point  the  correspondence  between  Seymour,  Q.  C,  and  others  and 
Blackburn,  J.,  printed  in  note  IX.  to  Stephen's  Digest  of  Cr  Law.  —  Ed. 


^' 


SECT.  VI.]  KEX    V.    THOMPSON.  GJ 

REGINA   V.   STEDMAN. 
Old  Bailey.     1704.      Q^' 
[Reported  Foster  Cr.  L.  292.] 

There  being  an  affra\'  in  the  street,  one  Stedman,  a  footsoldier,  ran 
hastily  towards  the  combatants.  A  woman  seeing  him  run  in  that 
manner  cried  out,  "  You  will  not  murder  the  man,  will  you?  "  Stedman 
replied,  "What  is  that  to  you,  you  bitch?"  The  woman  thereupon 
gave  him  a  box  on  the  ear,  and  Stedman  struck  her  On  the  breast  with 
the  pommel  of  his  sword.  The  woman  then  fled,  and  Stedman  pursu- 
ing her  stabbed  her  in  the  back.  Holt  was  at  first  of  opinion,  that  this 
was  murder,  a  single  box  on  the  ear  from  a  woman  not  being  a  siiffl- 
cient  provocation  to  kill  in  this  manner,  after  he  had  given  her  a  blow 
in  return  for  the  box  on  the  ear ;  and  it  was  proposed  to  have  the 
matter  found  specially :  but  it  afterwards  appearing  in  the  progress  of 
the  trial,  that  the  woman  struck  the  soldier  in  the  face  with  an  iron 
patten,  and  drew  a  great  deal  of  blood,  it  was  holden  clearlj'  to  be  no 
more  than  manslaughter. 

The  smart  of  the  man's  wound,  and  the  effusion  of  blood  might  pos- 
sibly keep  his  indignation  boiling  to  the  moment  of  the  fact. 


FRAY'S   CASE. 
Old  Bailey,  coram  Gould,  J.     1785. 

[Reported  1  East  P.  C.  236.] 

Where  one,  having  had  his  pocket  picked,  seized  -the  offender,  and 
being  encouraged  by  a  concourse  of  people,  threw  him  into  an  adjoin- 
ing pond  by  way  of  avenging  the  theft  by  ducking  him,  but  without 
any  apparent  intention  of  taking  away  his  life,  and  the  pickpocket  was 
drowned,  this  was  ruled  to  be  manslaughter  only. 


^  REX  V.  THOMPSON. 

Crown  Case  Reserved.     1825. 

[Reported  1  Moody  C.  C.  80.] 

The  prisoner  was  tried  before  Mr.  Baron  Garrow  at  the  Winter 
Assizes  at  Maidstone,  in  the  j'ear  1825,  upon  an  indictment  which 
charged  him,   first,  with    maliciously   stabbing   and   cutting  Richard 


QS6  REX   V.   THOMPSON.  [CHAP.  XI. 

Southerden,  with  intent  to  murder;  secondly,  with  intent  to  disable 
him  ;  and  thirdly,  with  intent  to  do  him  some  grievous  bodily  harm. 

On  the  trial  it  appeared  that  the  prisoner,  who  was  a  journeyman 
shoemaker,  on  the  18th  of  November,  1824,  applied  to  his  master  for 
some  mone}',  who  refused  to  give  if  to  him  till  he  finished  his  work  ;  on 
his  subsequently  urging  for  money  and  his  master  refusing  him,  he 
became  abusive,  upon  which  his  master  threatened  to  send  for  a  con- 
stable. The  prisoner  refused  to  finish  his  work,  and  said  he  would  go 
upstairs  and  pack  up  his  tools,  and  said  no  constable  should  stop  him  ; 
he  came  downstairs  with  his  tools,  and  drew  from  the  sleeve  of  his  coat 
a  naked  knife,  and  said  he  would  do  for  the  first  bloody  constable  that 
oflfered  to  stop  him  ;  that  he  was  ready  to  die,  and  would  have  a  life 
before  he  lost  his  own;  and  then  making  a  twisting  or  flourishing 
motion  with  the  knife,  put  it  up  his  sleeve  again,  and  left  the  shop. 

The  master  then  applied  to  Southerden,  the  constable,  to  take  the 
prisoner  into  custody  ;  he  made  no  charge,  but  said  "  he  suspected  he 
had  tools  of  his,  and  was  leaving  his  work  undone  ;  "  the  constable  said 
he  would  take  him  if  the  master  would  give  him  charge  of  him ;  they 
then  followed  the  prisoner  to  the  yard  of  the  Bull's  Head  Inn  ;  the  pris- 
oner was  in  a  public  privy  there  as  if  he  had  occasion  there.  The  privy 
had  no  door  to  it.  The  master  said,  "That  is  the  man;  I  give  3-00 
in  charge  of  him."  The  constable  then  said  to  the  prisoner,  "  My  good 
fellow,  your  master  gives  me  charge  of  you  ;  you  must  go  with  me." 
The  prisoner,  without  saying  anything,  presented  a  knife  to  the  con- 
stable and  stabbed  him  under  the  left  breast ;  he  attempted  to  make  a 
second,  third,  and  fourth  blow,  which  the  constable  parried  off  with  his 
staff.  The  constable  then  aimed  a  blow  at  his  head  ;  the  prisoner  then 
ran  away  with  the  knife  and  was  afterwards  secured. 

The  surgeon  described  the  wound  as  being  two  inches  and  a  half  in 
length  and  one  quarter  of  an  inch  deep,  and  inflicted  with  a  sharp 
instrument  like  the  knife  produced.  The  knife  appeared  to  have  struck 
against  one  of  the  ribs  and  glanced  off.  Had  the  point  of  the  knife 
insinuated  itself  between  the  ribs  and  entered  the  cavity  of  the  chest, 
death  would  have  inevitably  been  the  consequence  ;  if  it  had  struck  two 
inches  lower  death  would  have  ensued  ;  but  the  wound,  as  it  happened, 
was  not  considered  dangerous. 

The  jury  found  the  prisoner  guilt}*,  and  sentence  of  death  was  passed 
upon  him  ;  but  the  learned  judge  respited  the  execution  and  submitted 
the  case  for  the  consideration  of  the  judges. 

In  Hilary  term,  1825,  all  the  judges  (except  Best,  L.  C.  J.,  and 
Alexander,  L.  C.  B.,  who  were  absent)  met  and  considered  this  case. 
The  majority  of  the  judges,  viz.,  Abbott,  L.  C.  J.,  Graham,  B.,  Bayle}*, 
J.,  Park,  J.,  Garrow,  B.,  HuUock,  B.,  Littledale,  J.,  and  Gaselee,  J., 
held  that  as  the  actual  arrest  would  have  been  illegal,  the  attempt  to 
make  it  when  the  prisoner  was  in  such  a  situation  that  he  could  not 
get  away,  and  when  the  waiting  to  give  notice  might  have  enabled  the 
constable  to  complete  the  arrest,  was  such  a  provocation  as,  if  death 


SECT.  VI.]  REGINA   V.    WELSH.  687 

had  ensued,  would  have  made  the  case  manslaughter  onh',  and  that 
therefore  the  conviction  was  wrong.  Holroyd,  J.,  and  Burrough,  J., 
thought  otherwise. 


REGINA   V.   WELSH. 

Central  Criminal  Court.     1869. 

[Reported  1 1  Cox  C.  C.  336.] 

The  prisoner  was  indicted  for  that  he  feloniously  and  with  malice 
aforethought  did  kill  and  slay  one  Abraham. 

Pater  for  the  prosecution. 

Ribton  for  the  prisoner. 

The  prisoner  had  claimed  a  debt  from  the  deceased,  and  had  sum- 
moned him  to  a  police  court  where  the  claim  was  dismissed.  The 
prisoner  went  from  the  police  office  to  a  public-house,  distant  about  a 
mile,  whither  in  a  short  time  the  deceased  also  came.  "  You  have  got 
the  better  of  me  this  time,"  said  the  prisoner  to  him.  "  Yes,"  answered 
the  deceased,  pleasantly;  "I  thought  I  should."  "But,"  said  the 
prisoner,  "  I  '11  have  another  summons  out  against  you  about  it."  "  I 
am  ready,"  replied  the  deceased,  "  to  pay  what  any  indifferent  person 
may  say  is  due."  "  Not  you,"  said  the  prisoner  ;  "  you  don't  mean  to 
pay  anything."  The  deceased  approached  him  and  offered  to  drink 
with  him.  The  prisoner  refused,  saying,  "  I  will  not  drink  with  such  a 
man  as  you."  The  deceased  came  near  him.  The  prisoner  said, 
"  Don't  come  near  me,"  and  advanced  towards  him.  The  deceased 
retreated  several  paces.  The  prisoner  came  near  him.  The  deceased 
held  out  his  hand  again,  until  it  was  within  a  few  inches  of  the  pris- 
oner's face,  apparently  to  ward  him  off,  and  saying  at  the  same  time, 
"  Words  as  you  like,  but  keep  your  hands  off."  The  deceased  struck 
no  blow.  The  prisoner  closed  with  him,  and  forced  him  down  on  a 
seat,  and  a  few  moments  afterwards  was  seen  almost  upon  him,  in  the 
act  of  stabbing  him  in  the  abdomen  with  a  clasp  knife.  The  blow  was 
mortal,  and  the  man  died. 

Ribton,  for  the  prisoner,  strove  in  cross-examination  to  elicit  that 
there  was  some  blow  or  push  by  the  deceased. 

The  principal  witnesses,  in  answer  to  the  learned  judge,  said  that 
they  saw  no  blow  or  even  push  by  the  deceased  ;  but  that,  on  the  con- 
trary, it  was  the  prisoner  who  shoved  or  pushed  the  deceased  down. 

Ribton,  in  addressing  the  jury  for  the  defence,  submitted  that  the 
question  was  not  whether  the  provocation  was  or  was  not  slight  (as  he 
admitted  it  was),  but  whether  or  not  in  point  of  fact  the  prisoner 
was  under  the  influence  of  ungovernable  passion  at  the  time  he  struck 
the  blow. 

Keating,  J.,  however,  said  he  should  tell  the  jury  that  the  question 


688  EEGINA   V.   WELSH.  [cHAP.  XI. 

was,  not  merely  whether  there  was  passion,  but  whether  there  was 
reasonable  provocation. 

Bibton  cited  Foster's  Crown  Law,  295,  to  show  that  the  law  made 
allowances  for  human  passion,  and  he  urged  that  upon  the  evidence 
there  was  clearly  an  assault  upon  the  person  by  the  deceased  in  holding 
his  hand  so  near  the  prisoner's  face,  and  that  the  probability  was  that 
-there  was  a  blow,  as  the  witnesses  heard  the  prisoner  say  "Keep  off," 
and  did  not  see  precisely  what  had  happened  in  the  brief  interval 
between  that  expression  and  the  fatal  blow. 

Keating,  J.,  in  summing  up  the  case  to  the  jury,  said:  The  pris- 
oner is  indicted  for  that  he  killed  the  deceased  feloniousl}'  and  with 
malice  aforethought,  that  is  to  say  intentionalh^  without  such  provo- 
cation as  would  have  excused,  or  such  cause  as  might  have  justified, 
the  act.  Malice  aforethought  means  intention  to  kill.  Whenever  one 
person  kills  another  intentionall}',  he  does  it  with  malice  aforethought. 
In  point  of  law,  the  intention  signifies  the  malice.  It  is  for  him  to 
show  that  it  was  not  so  by  showing  sufficient  provocation,  which  only 
reduces  the  crime  to  manslaughter,  because  it  tends  to  negative  the 
malice.  But  when  that  provocation  does  not  appear,  the  malice  afore- 
thought implied  in  the  intention  remains.  By  the  law  of  England, 
therefore,  all  intentional  homicide  \%  priynafacie  murder.  It  rests  with 
the  party  charged  with  and  proved  to  have  committed  it  to  show,  either 
b}'  evidence  adduced  for  the  purpose,  or  upon  the  facts  as  they  appear, 
that  the  homicide  took  place  under  such  circumstances  as  to  reduce  the 
crime  from  murder  to  manslaughter.  Homicide,  which  would  be  prima 
facie  murder,  may  be  committed  under  such  circumstances  of  provoca- 
tion as  to  make  it  manslaughter,  and  show  that  it  was  not  committed 
with  malice  aforethought.  The  question,  therefore,  is  —  first,  whether 
there  is  evidence  of  any  such  provocation  as  could  reduce  the  crime 
from  murder  to  manslaughter ;  and,  if  there  be  an}'  such  evidence,  then 
it  is  for  the  jury  whether  it  was  such  that  they  can  attribute  the  act  to 
the  violence  of  passion  naturally*  arising  therefrom,  and  likely  to  be 
aroused  thereby  in  the  breast  of  a  reasonable  man.  The  law,  therefore, 
is  not,  as  was  represented  b}'  the  prisoner's  counsel,  that,  if  a  man 
commits  the  crime  under  the  influence  of  passion,  it  is  mere  man- 
slaughter. The  law  is  that  there  must  exist  such  an  amount  of  pi'ovo- 
cation  as  would  be  excited  by  the  circumstances  in  the  mind  of  a 
reasonable  man,  and  so  as  to  lead  the  jury  to  ascribe  the  act  to  the 
influence  of  that  passion.  When  the  law  saj-s  that  it  allows  for  the 
infirmity  of  human  nature,  it  does  not  say  that  if  a  man,  without  suflfi- 
cient  provocation,  gives  way  to  angr}-  passion,  and  does  not  use  his 
reason  to  control  it  —  the  law  does  not  say  that  an  act  of  homicide, 
intentionall}'  committed  under  the  influence  of  that  passion,  is  excused 
or  reduced  to  manslaughter.  The  law  contemplates  the  case  of  a 
reasonable  man,  and  requires  that  the  provocation  shall  be  such  as 
that  such  a  man  might  naturally  be  induced,  in  the  anger  of  the 
moment,  to  commit  the  act.    Now,  I  am  bound  to  say  that  I  am  unable 


SECT.  VI.]  .   EEGINA   V.    ROTHWELL.  689 

to  discover  in  the  evidence  in  this  case  any  provocation  which  would 
suffice,  or  approach  to  such  as  would  suffice,  to  reduce  the  crime  to 
manslaughter.  It  has  been  laid  down  that  mere  words  or  gestures  will 
not  be  sufficient  to  reduce  the  offence,  and  at  all  events  the  law  is  clear 
that  the  provocation  must  be  serious.  I  have  already  said  that  I  can 
discover  no  proof  of  such  provocation  in  the  evidence.  If  you  can 
discover  it,  j'ou  can  give  effect  to  it ;  but  you  are  bound  not  to  do  so 
unless  satisfied  that  it  was  serious.  It  is  urged  that  there  was  an 
assault,  and  that  it  is  probable  there  was  a  blow.  That  Is  for  you  to 
consider.  What  I  am  bound  to  tell  you  is  that  in  law  it  is  necessary 
that  there  should  have  been  serious  provocation  in  order  to  reduce  the 
crime  to  manslaughter,  as,  for  instance,  a  blow,. and  a  severe  blow,  — 
something  which  might  naturally  cause  an  ordinary  and  reasonably 
minded  man  to  lose  his  self-control  and  commit  such  an  act.  I 
endeavored  to  elicit  whether  there  was  anything  like  a  blow  bj-  the 
deceased,  but  failed  to  do  so.  It  does  not  appear  that  there  was  any- 
thing beyond  putting  out  his  hand,  which  came  near  the  prisoner's  face. 
There  is  no  evidence  of  his  doing  anything  else ;  that  is  the  evidence. 
Upon  the  evidence  it  is  for  you  to  ascertain  whether,  taking  the  law  as 
I  have  laid  it  down,  you  can  discover  evidence  of  such  a  serious  provo- 
cation as  would  reduce  the  crime  to  manslaughter. 

Guilty;  sentence,  Death. 


REGINA  V.  ROTHWELL. 
Manchester  Assizes.     1871. 

[Reported  12  Cox  C.  C.  145.] 

Christopher  Rothwell  was  indicted  for  the  wilful  murder  of  his 
wife,  at  Oldham,  on  the  2d  of  October. 

Cottingham  for  the  prosecution. 

Torr  for  the  defence.^ 

Blackburn,  J.,  in  summing  up,  said  :  A  person  who  inflicted  a 
dangerous  wound,  that  is  to  say,  a  wound  of  such  a  nature  as  he  must 
know  to  be  dangerous,  and  death  ensues,  is  guilty  of  murder ;  but 
there  may  be  such  heat  of  blood  and  provocation  as  to  reduce  the 
crime  to  manslaughter.  A  blow  is  such  a  provocation  as  will  reduce 
the  crime  of  murder  to  that  of  manslaughter.  Where,  however,  there 
are  no  blows,  there  must  be  a  provocation  equal  to  blows  ;  it  must  be 
at  least  as  great  as  blows.  For  instance,  a  man  who  discovers  his  wife 
in  adultery,  and  thereupon  kills  the  adulterer,  is  only  guilty  of  man- 
slaughter. As  a  general  rule  of  law,  no  pi'ovocation  of  words  will 
reduce  the  crime  of  murder  to  that  of  manslaughter,  but  under  special 

1  The  evidence  is  omitted. 
44 


590  MAKER   V.   PEOPLE.  [CHAP.  XI. 

circumstances  there  may  be  such  a  provocation  of  words  as  will  have 
that  effect ;  for  instance,  if  a  husband  suddenly  hearing  from  his  wife 
that  she  had  committed  adultery,  and  he  having  had  no  idea  of  such  a 
thing  before,  were  thereupon  to  kill  his  wife,  it  might  be  manslaughter. 
Now,  in  this  case,  words  spoken  by  the  deceased  just  previous  to  the 
blows  inflicted  by  the  prisoner  were  these:  "Aye;  but  I'll  take  no 
more  for  thee,  for  I  will  have  no  more  children  of  thee.  I  have 
done  it  once,  and  I'll  do  it  again."  Now,  what  you  will  have  to  con- 
sider is,  would  these  words,  which  were  spoken  just  previous  to  the 
blows,  amount  to  such  a  provocation  as  would  in  an  ordinary  man,  not 
in  a  man  of  violent  or  passionate  disposition,  provoke  him  in  such  a 
way  as  to  justify  him  in  striking  her  as  the  prisoner  did. 

Guilty  of  manslaughter  ;  ten  years  penal  servitude. 


MAKER  y.  PEOPLE. 
Supreme  Court  of  Michigan.     1862. 

[Reported  10  Michigan,  212.] 

Christiancy,  J.^  To  give  the  homicide  the  legal  character  of  murder, 
all  the  authorities  agree  that  it  must  have  been  perpetrated  with  malice 
prepense  or  aforethought.  This  malice  is  just  as  essential  an  ingredient 
of  the  offence  as  the  act  which  causes  the  death  ;  without  the  concurrence 
of  both,  the  crime  cannot  exist ;  and,  as  every  man  is  presumed  innocent 
of  the  offence  with  which  he  is  charged  till  he  is  proved  to  be  guilty, 
this  presumption  must  appl}^  equally  to  both  ingredients  of  the  offence, 
—  to  the  malice  as  well  as  to  the  killing.  Hence,  though  the  principle 
seems  to  have  been  sometimes  overlooked,  the  burden  of  proof,  as  to 
each,  rests  equally  upon  the  prosecution,  though  the  one  may  admit 
and  require  more  direct  proof  than  the  other ;  malice,  in  most  cases, 
not  being  susceptible  of  direct  proof,  but  to  be  established  by  infer- 
ences more  or  less  strong,  to  be  drawn  from  the  facts  and  circumstances 
connected  with  the  killing,  and  which  indicate  the  disposition  or  state 
of  mind  with  which  it  was  done.  It  is  for  the  court  to  define  the  legal 
import  of  the  term  "malice  aforethought,"  or,  in  other  words,  that  state 
or  disposition  of  mind  which  constitutes  it ;  but  the  question  whether 
it  existed  or  not,  in  the  particular  instance,  would,  upon  principle,  seem 
to  be  as  clearly  a  question  of  fact  for  the  jur^'  as  any  other  fact  in  the 
cause,  and  that  they  must  give  such  weight  to  the  various  facts  and 
circumstances  accompanying  the  act,  or  in  any  wa}'  bearing  upon  the 
question,  as  in  their  judgment  they  deserve :  and  that  the  court  have 
no  right  to  withdraw  the  question  from  the  jury  by  assuming  to  draw 

1  Part  of  the  opinion  only  is  given. 


SECT.  VI.]  MAKER   V.   PEOPLE.  691 

the  proper  inferences  from  the  whole  or  any  part  of  the  facts  proved, 
as  presumption  of  law.  If  coiuts  could  do  this,  juries  might  be  required 
to  find  the  fact  of  malice  where  they  were  satisfied  from ,  the  whole 
evidence  it  did  not  exist.  I  do  not  here  speak  of  those  cases  in  which 
the  death  is  caused  in  the  attempt  to  commit  some  other  offence,  or  in 
illegal  resistance  to  public  officers,  or  other  classes  of  cases  which  may 
rest  upon  peculiar  grounds  of  public  policy,  and  which  may  or  may 
not  form  an  exception  ;  but  of  ordinary  cases,  such  as  this  would  have 
been  had  death  ensued.  It  is  not  necessary  here  to  enumerate  all  the 
elements  which  enter  into  the  legal  definition  of  malice  aforethought. 
It  is  sufficient  to  say  that,  within  the  principle  of  all  the  recognized 
definitions,  the  homicide  must,  in  all  ordinary  cases,  have  been  com- 
mitted with  some  degree  of  coolness  and  deliberation,  or,  at  least, 
under  circumstances  in  which  ordinary  men,  or  the  average  of  men 
recognized  as  peaceable  citizens,  would  not  be  liable  to  have  their 
reason  clouded  or  obscured  by  passion  ;  and  the  act  must  be  prompted 
by,  or  the  circumstances  indicate  that  it  sprung  from,  a  wicked, 
depraved,  or  malignant  mind,  —  a  mind  which  even  in  its  habitual  con- 
dition and  when  excited  by  no  provocation  which  would  be  liable  to 
give  undue  control  to  passion  in  ordinary  men,  is  cruel,  wanton,  or 
malignant,  reckless  of  human  life,  or  regardless  of  social  duty. 

But  if  the  act  of  killing,  though  intentional,  be  committed  under  the 
influence  of  passion  or  in  heat  of  blood,  produced  by  an  adequate  or 
reasonable  provocation,  and  before  a  reasonable  time  has  elapsed  for 
the  blood  to  cool  and  reason  to  resume  its  habitual  control,  and  is  the 
result  of  the  temporary  excitement  by  which  the  control  of  reason  was 
disturbed,  rather  than  of  any  wickedness  of  heart  or  cruelty  or  reck- 
lessness of  disposition,  —  then  the  law,  out  of  indulgence  to  the  frailty 
of  human  nature,  or  rather,  in  recognition  of  the  laws  upon  which 
human  nature  is  constituted,  very  properly  regards  the  offence  as  of  a 
less  heinous  character  than  murder,  and  gives  it  the  designation  of 
manslaughter. 

To  what  extent  the  passions  must  be  aroused  and  the  dominion  of 
reason  disturbed  to  reduce  the  offence  from  murder  to  manslaughter, 
the  cases  are  by  no  means  agreed  ;  and  any  rule  which  should  embrace 
all  the  cases  that  have  been  decided  in  reference  to  this  point,  would 
come  very  near  obliterating,  if  it  did  not  entirely  obliterate,  all  dis- 
tinction between  murder  and  manslaughter  in  such  cases.  We  must 
therefore  endeavor  to  discover  the  principle  upon  which  the  question 
is  to  be  determined.  It  will  not  do  to  hold  that  reason  should  be 
entirely  dethroned,  or  overpowered  by  passion  so  as  to  destroy  intelli- 
gent volition.  State  v.  Hill,  1  Dev.  &  Bat.  491  ;  Haile  v.  State,  1  Swan, 
248;  Young  ».  State,  11  Humph.  200.  Such  a  degree  of  mental  dis- 
turbance would  be  equivalent  to  utter  insanity,  and  if  the  result  of 
adequate  provocation,  would  render  the  perpetrator  morally  innocent. 
But  the  law  regards  manslaughter  as  a  high  grade  of  offence,  —  as  a 
felony.     On  principle,  therefore,  the  extent  to  which  the  passions  are 


692  MAKER   V.   PEOPLE.  [CHAP.  XI. 

required  to  be  aroused  and  reason  obscured  must  be  considerably  short 
of  tliis,  and  never  beyond  that  degree  witliiu  wliich  ordinary  men  have 
the  power,  and  are  therefore  morally  as  well  as  legally  bound,  to 
restrain  their  passions.  It  is  only  on  the  idea  of  a  violation  of  this 
clear  duty,  that  the  act  can  be  held  criminal.  There  are  many  cases 
to  be  found  in  the  books  in  which  this  consideration,  plain  as  it  would 
seem  to  be  in  principle,  appears  to  have  been  in  a  great  measure  over- 
looked, and  a  course  of  reasoning  adopted  which  could  only  be  justified 
on  the  supposition  that  the  question  was  between  murder  and  excusable 
homicide. 

The  principle  involved  in  the  question,  and  which  I  think  clearly 
deducible  from  the  majority  of  well  considered  cases,  would  seem  to 
suggest,  as  the  true  general  rule,  that  reason  should,  at  the  time  of  the 
act,  be  disturbed  or  obscured  by  passion  to  an  extent  which  might 
render  ordinary  men,  of  fair  average  disposition,  liable  to  act  rashly 
or  without  due  deliberation  or  reflection,  and  from  passion,  rather  than 
judgment. 

To  the  question  what  shall  be  considered  in  law  a  reasonable  or 
adequate  provocation  for  such  a  state  of  mind,  so  as  to  give  to  a 
homicide  committed  under  its  influence  the  character  of  manslaughter, 
on  principle,  the  answer,  as  a  general  rule,  must  be,  anything  the 
natural  tendency  of  which  would  be  to  produce  such  a  state  of  mind 
in  ordinary  men,  and  which  the  jury  are  satisfied  did  produce  it  in  the 
case  before  them,  —  not  such  a  provocation  as  must,  by  the  laws  of  the 
human  mind,  produce  such  an  eff'ect  with  the  certainty  that  physical 
effects  follow  from  physical  causes  ;  for  then  the  individual  could  hardly 
be  held  morally  accountable.  Nor,  on  the  other  hand,  must  the  pro- 
vocation in  every  case  be  held  sufficient  or  reasonable  because  such  a 
state  of  excitement  has  followed  from  it ;  for  then,  b}'  habitual  and 
long  continued  indulgence  of  evil  passions,  a  bad  man  might  acquire 
a  claim  to  mitigation  which  would  not  be  available  to  better  men,  and 
on  account  of  that  very  wickedness  of  heart  which,  in  itself,  constitutes 
an  aggravation  both  in  morals  and  in  law. 

In  determining  whether  the  provocation  is  sufficient  or  reasonable, 
ordinary  human  nature,  or  the  average  of  men  recognized  as  men  of 
fair  average  mind  and  disposition,  sliould  be  taken  as  the  standard,  — 
unless,  indeed,  the  pei'son  whose  guilt  is  in  question  be  shown  to  have 
some  pecuHar  weakness  of  mind  or  infirmity  of  temper,  not  arising  from 
wickedness  of  heart  or  cruelty  of  disposition. 

It  is  doubtless,  in  one  sense,  the  province  of  the  court  to  define  what, 
in  law,  will  constitute  a  reasonable  or  adequate  provocation,  but  not,  I 
think,  in  ordinary  cases,  to  determine  whether  the  provocation  proved 
in  the  particular  case  is  sufficient  or  reasonable.  This  is  essentiall}'  a 
question  of  fact,  and  to  be  decided  with  reference  to  the  peculiar  facts 
of  each  particular  case.  As  a  general  rule,  the  court,  after  informing 
the  jurj'  to  what  extent  the  passions  must  be  aroused  and  reason 
obscured  to  render  the   homicide   manslaughter,  should   inform   them 


SECT.  VI.]  .         MAHEK   V.   PEOPLE.  693 

that  the  provocation  must  be  one  the  tendency  of  which  would  be  to 
produce  such  a  degree  of  excitement  and  disturbance  in  the  minds  of 
ordinar}'  men  ;  and  if  the}'  should  find  such  provocation  from  the  facts 
proved,  and  should  further  find  that  it  did  produce  that  effect  in  the 
particular  instance,  and  that  the  homicide  was  the  result  of  such  prov- 
ocation, it  would  give  it  the  character  of  manslaughter.  Besides  the 
consideration  that  the  question  is  essentially  one  of  fact,  jurors,  from 
the  mode  of  their  selection,  coming  from  the  various  classes  and  occu- 
pations of  societ}-,  and  conversant  with  the  practical  affairs  of  life,  are, 
in  ray  opinion,  much  better  qualified  to  judge  of  the  sufficiency  and 
tendency  of  a  given  provocation,  and  much  more  likely  to  fix,  with 
some  degree  of  accuracy,  the  standard  of  what  constitutes  the  average 
of  ordinary  human  nature,  than  the  judge  whose  habits  and  course  of 
life  give  him  much  less  experience  of  the  workings  of  passion  in  tlie 
actual  conflicts  of  life. 

The  judge,  it  is  true,  must,  to  some  extent,  assume  to  decide  upon 
the  sufficiency  of  the  alleged  provocation  when  the  question  arises 
upon  the  admission  of  testimony  ;  and  when  it  is  so  clear  as  to  admit 
of  no  reasonable  doubt,  upon  any  theory,  that  the  alleged  provocation 
could  not  have  had  any  tendency  to  produce  such  state  of  mind  in 
ordinary  men,  he  may  properly  exclude  the  evidence ;  but,  if  the 
alleged  provocation  be  such  as  to  admit  of  any  reasonable  doubt 
whether  it  might  not  have  had  such  tendency,  it  is  much  safer,  I 
tliink,  and  more  in  accordance  with  principle,  to  let  the  evidence  go  to 
the  jury  under  the  proper  instructions.  As  already  intimated,  the 
question  of  the  reasonableness  or  adequacy  of  the  provocation  must 
depend  upon  the  facts  of  each  particular  case.  That  can,  with  no 
propriety,  be  called  a  rule  (or  a  question)  of  law  which  must  vary 
with,  and  depend  upon  the  almost  infinite  variety  of  facts  presented  by 
the  various  cases  as  they  arise.  See  Stark,  on  Ev.,  Amer.  ed.  1860, 
pp.  676  to  680.  The  law  cannot  with  justice  assume,  by  the  light  of 
past  decisions,  to  catalogue  all  the  various  facts  and  combinations  of 
facts  which  shall  be  held  to  constitute  reasonable  or  adequate  provoca- 
tion. Scarcely  two  past  cases  can  be  found  which  are  identical  in  all 
their  circumstances  ;  and  there  is  no  reason  to  hope  for  greater  uni- 
formity in  future.  Provocations  will  be  given  without  reference  to  any 
previous  model,  and  the  passions  they  excite  will  not  consult  the 
precedents. 

The  same  principles  which  govern  as  to  the  extent  to  which  the 
passions  must  be  excited  and  reason  disturbed  apply  with  equal  force 
to  the  time  during  which  its  continuance  may  be  recognized  as  a  ground 
for  mitigating  the  homicide  to  the  degree  of  manslaughter,  or,  in  other 
words,  to  the  question  of  cooling  time.  This,  like  the  provocation 
itself,  must  depend  upon  the  nature  of  man  and  the  laws  of  the  human 
mind,  as  well  as  upon  the  nature  and  circumstances  of  the  provocation, 
the  extent  to  which  the  passions  have  been  aroused,  and  the  fact 
whether  the  injury  inflicted  by  the  provocation  is  more  or  less   per- 


694  MAKER    V.   PEOPLE.  [CHAP.  ?rr. 

manent  or  irreparable.  The  passion  excited  by  a  blow  received  in  a 
sudden  quarrel,  though  perhaps  equalk  violent  for  the  moment,  would 
be  likelj'  much  sooner  to  subside  than  if  aroused  by  a  rape  committed 
upon  a  sister  or  a  daughter,  or  the  discovery  of  an  adulterous  inter- 
course with  a  wife;  and  no  two  cases  of  the  latter  kind  would  be  likely 
to  be  identical  in  all  their  circumstances  of  provocation.  No  precise 
time,  therefore,  in  hours  or  minutes,  can  be  laid  down  In"  the  court,  as 
a  rule  of  law,  within  which  the  passions  must  be  held  to  have  subsided 
and  reason  to  have  resumed  its  control,  without  setting  at  defiance  the 
laws  of  man's  nature,  and  ignoring  the  very  principle  on  which  prov- 
ocation and  passion  are  allowed  to  be  shown  at  all,  in  mitigation  of 
the  offence.  The  question  is  one  of  reasonable  time,  depending  upon 
all  the  circumstances  of  the  particular  case  ;  and  where  the  law  has 
not  defined,  and  cannot  without  gross  injustice  define  the  precise  time 
which  shall  be  deemed  reasonable,  as  it  has  with  respect  to  notice  of 
the  dishonor  of  commercial  paper.  In  such  case,  where  the  laW  has 
defined  what  shall  be  reasonable  time,  the  question  of  such  reasonable 
time,  the  facts  being  found  by  the  jur}-,  is  one  of  law  for  the  court ; 
but  in  all  other  cases  it  is  a  question  of  fact  for  the  jury ;  and  the  court 
cannot  take  it  from  the  jury  b}-  assuming  to  decide  it  as  a  question  of 
law,  without  confounding  the  respective  provinces  of  the  court  and 
jury.  Stark.  Ev. ,  ed.  of  18G0,  pp.  768,  7G9,  774,  775.  In  Rex  v. 
Howard,  6  C.  &  P.,  157,  and  Rex  v.  Lynch,  5  C.  &  P.  324,  this  question 
of  reasonable  cooling  time  was  expressl3-  held  to  be  a  question  of  fact 
for  the  jury.  And  see  Whart.  Cr.  L.,  4th  ed.,  §990  and  cases  cited. 
I  am  aware  there  are  man}'  cases  in  which  it  has  been  held  a  question 
of  law  ;  but  I  can  see  no  principle  on  which  such  a  rule  can  rest.  The 
court  should,  I  think,  define  to  tiie  jur}-  the  principles  upon  which  the 
question  is  to  be  decided,  and  leave  them  to  determine  whether  the 
time  was  reasonable  under  all  the  circumstances  of  the  particular  case. 
I  do  not  mean  to  say  that  the  time  may  not  be  so  great  as  to  enable 
the  court  to  determine  that  it  is  suflScient  for  the  passion  to  have  cooled, 
or  so  to  instruct  the  jur}-,  without  error  ;  but  the  case  should  be  very 
clear.  And  in  cases  of  applications  for  a  new  trial,  depending  upon  the 
discretion  of  the  court,  the  question  ma}'  \Qvy  properl}'  be  considered  by 
the  court. 

It  remains  only  to  apply  these  principles  to  the  present  case.  The 
proposed  evidence,  in  connection  with  what  had  already  been  given, 
would  have  tended  strongly  to  show  the  commission  of  adulter}'  by 
Hunt  with  the  prisoner's  wife,  within  half  an  hour  before  the  assault; 
that  the  prisoner  saw  them  going  to  the  woods  together,  under  circum- 
stances calculated  strongly  to  impi-ess  upon  his  mind  the  belief  of  the 
adulterous  purpose ;  that  he  followed  after  them  to  the  woods ;  that 
Hunt  and  the  prisoner's  wife  were,  not  long  after,  seen  coming  from 
the  woods,  and  that  the  prisoner  followed  them,  and  went  in  hot  pursuit 
after  Hunt  to  the  saloon,  and  was  informed  by  a  friend  on  the  way 
that  they  had  committed  adultery  the  day  before  in  the  woods.     I  can 


SECT.  VI.]  MAHEE   V.    PEOPLE.  695 

not  resist  the  conviction  that  this  would  have  been  sufficient  evidence 
of  provocation  to  go  to  the  jury,  and  from  which,  when  taken  in  con- 
nection with  the  excitement  and  "great  perspiration"  exhibited  on 
entering  the  saloon,  the  hasty  manner  in  which  he  approached  and 
fired  the  pistol  at  Hunt,  it  would  have  been  competent  for  the  jury  to 
find  that  tlie  act  was  committed  in  consequence  of  the  passion  excited 
by  the  provocation,  and  in  a  state  of  mind  which,  within  the  principle 
already  explained,  would  have  given  to  the  homicide,  had  death  ensued, 
the  character  of  manslaughter  only.  In  holding  otherwise  the  court 
below  was  doubtless  guided  by  those  cases  in  which  courts  have  arbi- 
trarily assumed  to  take  the  question  from  the  jurj',  and  to  decide  upon 
the  facts  or  some  particular  fact  of  the  case,  whether  a  sufficient 
provocation  had  been  shown,  and  what  was  a  reasonable  time  for 
cooling. 


696 


^^,  i^ 


ANONYMOUS. 


[chap.  XII, 


CHAPTER  XII. 
LARCENY. 


SECTION   I. 

What  Property  is  the  Subject  of  Larceny. 


'""  ■'  Bracton  De  Legibus,  150  b.  Larcen}-  is,  according  to  the  law,  the 
fraudulent  taking  of  the  property' of  another,  with  intent  to  steal,  against 
the  will  of  the  owner.^ 


A 


ANONYMOUS. 

Assizes.     1338. 

[Reported  Year  Booh,  \\^\2Ed.  III.,  640.] 

A  FORESTER  was  indicted  "  that  he  feloniously^  cut  down  and  carried 
awa}'  trees."  The  justices  would  not  arraign  him,  for  the  felling  of  trees 
which  are  so  annexed  to  the  soil  cannot  bo  called  a  felony,  even  if  a 
stranger  had  done  it.  Besides,  here  perhaps  he  himself  had  the  keeping 
of  them.  But  because  it  was  possible  that  the  trees  were  first  of  all 
felled  by  the  lord  and  then  carried  away  by  the  forester,  they  questioned 
the  inquest,  who  said  that  he  was  the  forester  when  he  felled  and  car- 
ried them  away.  Scharshulle  [J.],  to  the  inquest:  Did  the  forester 
conceal  the  trees  from  the  lord?  The  Inquest.  We  do  not  know. 
Aldeburgh  [J.].  Certainly  we  do  not  think  it  important  whether  he 
concealed  them  or  not ;  but  we  adjudge  that  it  is  no  felony,  because 
he  was  the  keeper ;  and  a  tree  is  part  of  the  freehold.^ 

^  Furtum  est  secundum  leges  contraotatio  rei  alienae  fraudulenta,  cum  animo 
furandi,  invito  illo  domino  cuius  res  ilia  fuerit. 
8  12  Lib,  Ass.,  32,  S.  C 


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SECT.  I.]  EEX   V.   WODY.  697 

REX  V.   WODY. 

Exchequer  Chamber.     1470. 
[Reported  Year  Book,  10  Ed.  IV.,  U,  pi.  9,  10.] 

One  William  Wodj'  was  indicted  for  that  he  feloniously  took  and 
carried  away  six  boxes,  with  charters  and  muniments  concerning  the 
inheritance  of  John  Culpepper  and  Nicholas  C,  etc.,  contained  in  the 
boxes. 

Sulyard.  It  seems  that  it  is  not  felon}',  for  the  sealed  boxes  shall 
be  called  of  the  same  nature  as  the  charters  contained  in  thera,^  while 
the  charters  are  concerning  the  inheritance,  so  that  these  things  touch 
the  inheritance  of  the  realtj',  etc. 

Nele.  Every  felony  ought  to  be  a  loss  of  twelve  pence ;  but  in 
detinue  of  charters,  or  of  sealed  boxes  with  charters  contained  in  them, 
those  in  the  Chancery  do  not  say  "  ad  valentiam^'  etc.,  for  they  cannot 
be  valued,  and  so  it  cannot  be  felony. 

Collow.  A  man  may  recover  damages  in  detinue  if  the  charters  are 
burned. 

All  the  justices  of  the  one  bench  and  of  the  other  were  assembled  in 
the  Exchequer  Chamber. 

Choke,  J.  It  seems  that  it  is  not  felony  for  two  reasons  :  first,  they 
are  so  far  real  that  it  cannot  be  felonj'.  For  they  are  not  chattels  real, 
but  are  real  in  themselves  ;  for  if  a  man  be  attainted  of  felon}-,  the  king 
shall  not  have  his  charters  concerning  his  land,  for  they  are  real,  but 
he  shall  have  his  wardship,  or  term,  for  they  are  chattels  real.  Quod 
fuit  concessum  per  omnesjnsticios. 

Yelverton,  J.,  said,  that  if  a  man  has  a  franchise  to  have  catalla 
felonum^  etc.,  still  he  shall  not  have  the  charters  concerning  the  land 
of  felons,  etc. 

MoYLE,  J.     The  lord  shall  have  the  charters  with  the  land,  etc. 

And  it  was  held  that  if  a  man  gives  omnia  bona  et  catalla  sua,  the 
charters  do  not  pass,  therefore  they  are  released,  etc. 

Choke,  J.  The  second  reason  is  because  they  cannot  be  valued, 
etc.  ;  for  in  detinue  for  charters  one  does  not  saj'  ad  valentiam,  etc., 
ut  supra,  etc. 

Littleton,  J.  The  reason  why  those  in  the  Chancery  do  not  saj'  ad 
valeiitiam  in  the  writs  ut  supra  is  only  the  precedent,  etc. ;  but  3'et 
they  are  of  value,  for  in  detinue  of  charters,  if  the  charters  are  lost  or 
burned,  he  shall  recover  in  damages,  having  regard  to  the  loss  that  he 
has  by  the  loss  of  the  charters  ;  this,  therefore,  proves  that  they  are  of 
value.  And  though  the  terms  ad  valentiam  and  ad  dampnum  are 
different,  yet  they  are  of  the  same  effect.     ( Quod  fuit  negutum,  etc.) 

1  Upon  this  argument  being  urged  in  Reg.  v.  Powell,  5  Cox  C.  C.  397,  Alderson, 
B.,  said  :  "  I  suppose,  then,  that  if  a  lion  was  stole  in  a  cage,  it  would  be  said  that  the 
cage  wasye?"CE  natura."  —  Ed. 


i 


[chap.  XII. 


V»X  <s»7  ANONYMOUS. 

And  on  an  indictment  for  burglary,  sc.  for  breaking  a  house,  one  should 
not  say  quod /regit  domum  advalentiam,  etc. ;  and,  sir,  so  at  common 
law  wilful  burning  of  a  house  was  felony,  and  yet  one  should  not  say  ad 
valentiam,  etc. 

Billing,  C.  J.  Those  are  felonies  of  a  different  nature  from  rob- 
bery, etc. 

Littleton,  J.  Because  charters  concerning  the  inheritance  are  of 
greater  value  than  other  things,  therefore  it  is  reason  that  as  great 
punishment  should  be  inflicted  for  the  taking  of  them  as  of  other  things, 
etc.  And,  sir,  in  trespass  quare  pidlos  espervarios  cepit,  one  should 
state  the  price,  but  in  trespass  quare  parcum  /regit  et  damas,  etc., 
one  should  not  state  the  price,  etc.,  for  it  is  not  the  use  in  the 
Chancery. 

Bingham,  J.  In  your  case  quare  p>ullos  espervarios  in  nido,  etc., 
the  plaintiff  should  state  the  price,  for  the  property  in  them  is  in  him  ; 
for  the  nests  are  the  plaintiff's,  and  so  are  those  which  are  in  the  nests, 
and  besides  cannot  fly  out  of  your  possession,  etc. 

Nedham,  J.  Felony  is  only  of  such  thing  as  the  country  may  have 
notice  of  the  value  of;  but  here  as  to  charters  within  the  boxes  they 
cannot  have  notice,  etc.,  of  the  value  of  them  ;  wherefore,  etc. 

Yelverton,  J.  Felony  cannot  be  of  any  goods  except  personal 
chattels  ;  for  a  man  cannot  take  my  ward  feloniously,  for  it  is  a  chattel 
real ;  and  it  was  held  that  a  deer  which  is  domesticated  may  be  stolen, 
and  so  when  it  is  dead.     And  so  of  fishes  taken  in  a  pond,  etc. 

And  then  it  was  advised  by  them  all  that  this  is  not  felony,  wherefore 
in  the  King's  Bench  the  defendant  was  discharged,  etc. 


f 


ANONYMOUS. 
Opinion  of  the  Justices.     1528. 

{Reported  Year  Book,  \9  Henri/  VIII.,  2,  pi.  11.] 

A  QUESTION  was  propounded  to  all  the  Justices  by  the  Chancellor.  If 
a  man  feloniously  steals  peacocks  which  are  tame  and  domesticated, 
whether  it  is  felony  or  not.  And  by  Fitzherbert  and  Inglefield  [JJ.] 
it  was  said  that  it  is  not  felony,  because  they  are  /erce  naturce  like 
doves  in  a  dove-cote  ;  and  if  the  young  of  such  doves  are  stolen,  it  is 
not  felony.  The  same  law  of  herons  taken  out  of  the  nest,  or  of  swans 
taken,  or  of  a  buck,  or  hind,  which  are  domesticated,  or  of  hares  taken 
out  of  a  garden  which  is  surrounded  with  a  wall,  etc.  The  same  law  of 
a  mastiff,  hound,  or  spaniel,  or  of  a  goshawk  which  is  reclaimed  ;  for 
they  are  properly  things  of  pleasure  rather  than  of  profit.  And  so  the 
peacock  is  a  bird  more  for  pleasure  than  for  profit,  for  often  they 
intentionally  destroy  all  the  young  except  one. 


SECT.  I.]  •         EEX  V.   SEAEING.  699 

A.xid  it  was  also  agreed  that  apples  taken  out  of  the  orchard  which 
were  growing  on  the  trees  at  the  time  of  taking,  or  trees  growing  upon 
the  [soil?]  at  the  time  of  taking,  or  grass  cut  and  carried  away,  is  not 
felon}',  and  even  where  they  are  taken  with  felonious  intent,  because 
these  things  at  the  time  of  taking  are  parcel  of  the  franktenement ;  but 
if  my  trees  are  cut  down  by  me,  or  my  grass  growing  on  my  land  is 
by  me  cut  and  severed,  and  afterward  another  with  felonious  intent 
steals  it,  that  is  felony. 

FiTZJAMES  [C.  J.]  and  the  other  justices  said  that  peacocks  are 
commonly  of  the  same  nature  as  hens  or  capons,  geese  or  ducks,  and 
the  owner  has  property  in  them,  and  they  have  animum  revertendi^  and 
they  are  not  fowls  of  warren,  like  pheasant,  partridge,  conies,  or 
animals  of  that  sort,  for  the  taking  of  these  with  felonious  intent 
is  not  felony. 

And  in  the  end  it  was  agreed  by  all  the  justices,  that  this  taking  of 
peacocks  was  felony  for  the  cause  aforesaid,  Quod  Nota. 


REX  V.  SEARING. 
Crown  Case  Reserved.     1818. 

[Reported  Russell  Sj-  Ryan,  350.]  ' 

The  prisoner  was  tried  before  Mr.  Baron  Wood  at  the  Lent  Assizes 
for  Hertfordshire  in  the  year  1818  for  larceny  in  stealing  "  five  live 
tame  ferrets  confined  in  a  certain  hutch,"  of  the  price  of  fifteen  shil- 
lings, the  property  of  Daniel  Flower. 

The  jury  found  the  prisoner  guilty  ;  but  on  the  authority  of  2  East, 
P.  C.  614,  where  it  is  said  that  ferrets  (among  other  things)  are  con- 
sidered of  so  base  a  nature  that  no  larceny  can  be  committed  of  them, 
the  learned  judge  respited  the  judgment  until  the  opinion  of  the  judges 
could  be  taken  thereon. 

It  appeared  in  evidence  that  ferrets  are  valuable  animals,  and  those 
in  question  were  sold  by  the  prisoner  for  nine  shillings. 

In  Easter  tei-m,  1818,  the  judges  met  and  considered  this  case  ;  they 
were  of  opinion  that  ferrets  (though  tame  and  salable)  could  not  be 
the  subject  of  larceny  and  that  judgment  ought  to  be  arrested. 


<^ 


A 


I 


700  KEGINA   V.   CHEAFOR.  [cHAP.  XII. 


REGINA  V.   CHEAFOR. 
Crown  Case  Reserved.  1851. 

[Reported  5  Cox  C.  C.  367.] 

At  the  Quarter  Sessions  for  the  county  of  Nottingham,  held  at  East 
Retford,  on  the  7th  of  Jul}',  1851,  the  prisoner  was  indicted  for  felon- 
iousl}'  stealing  four  tame  pigeons,  the  property  of  John  Mansell.     The 
pigeons,  at  the  time  they  were  taken  by  the  prisoner,  were  in  the  prose- 
^     I  "J  cutor's  dove-cote,  over  a  stable   on  his  premises,  being  an  ordinary 

«/    V  dove-cote,  and  having  holes  at  the  top  for  the  ingress  and  the  egress 

^        j  of  the  pigeons,  and  having  a  door  in  the  floor,  which  was  kept  locked. 

The  prisoner  entered  the  dove-cote  at  twelve  o'clock  at  night,  breaking 
open  the  door  and  taking  away  the  pigeons.  The  prisoner's  counsel 
contended  that  the  pigeons  being  at  liberty  at  any  time  to  go  in  and 
out  of  the  dove-cote,  and  therefore  not  reclaimed  and  in  a  state  of  con- 
finement, were  not  the  subjects  of  larceny.  The  chairman  directed 
the  jury  that,  in  his  opinion,  the  view  contended  for  by  the  prisoner's 
counsel  was  correct,  and  that  the  pigeons  were  not  properly  the 
subjects  of  larceny.  The  jury  found  the  prisoner  guilty  of  larceny ; 
but  judgment  was  postponed  to  ask  the  opinion  of  this  court  whether 
the  learned  chairman's  direction  to  the  jury  was  right,  and  whether  the 
prisoner,  under  the  facts  stated,  was  properly  convicted. 

The  case  was  not  argued  by  counsel. 

Lord  Campbell,  C.  J.,  delivered  the  judgment  of  the  court.     After 
reading  the  case,  his  Lordship  said  that  they  thought  the  direction  of 
the  chairman   was  clearly  wrong.     Pigeons  must,  from  the  nature  of 
them,  have  free  egress  to  the  open  air :  and  the  question  therefore  was, 
'yC    2  whether  there  could  be  a  larceny  of  tame  pigeons.      If  not,  neither 

could  there  be  larceny  of  chickens,  ducks,  or  any  poultry.  Whether 
they  were  tame  or  not  was  a  question  for  the  jury.  Luke's  case  (Rose. 
Cr.  Ev.  577)  is  said  by  Mr.  Greaves ^  to  have  been  determined  on  the 
ground  that  the  pigeons  were  reclaimed,  not  that  they  were  shut  up  in 
boxes.  It  had  been  mistakenly  supposed  that  Baron  Parke  had 
decided  that  pigeons  were  not  the  subjects  of  larceny  unless  strictly 
confined ;  there  is  no  question  that  they  are,  even  though  they  are 
allowed  the  liberty  of  going  to  enjoy  the  air  when  they  please. 

.  Conviction  affirmed. 

1  The  passage  referred  to  is  in  2  Russ.  on  Crimes,  p.  83,  as  follows  :  "  Where 
pigeons  were  shut  up  in  their  boxes  every  night,  and  stolen  out  of  such  boxes  during  the 
night,  Parke,  B.,  held  it  to  be  larceny."  Upon  which,  in  Mr.  Greaves'  edition,  there 
is  the  following  note:  "Luke's  case,  Rose  Cr.  Evid.  577,  and,  ex  relatione,  Mr. 
Granger.  The  case  was  determined  on  the  ground  that  the  pigeons  were  reclaimed  ; 
and  not  on  the  ground  that  they  were  shut  up  in  their  boxes  at  the  time  they  were 
taken."  —  Rep. 


SECT,  l]  EEGIXA   V.    WATTS.  701 


REGINA  V.  WATTS. 
Crown  Case  Reserved.     1854. 

[Reported  6  Cox  C.  C.  304.] 

The  prisoner,  William  Mote  Watts,  was  indicted  at  the  Quarter 
Sessions  for  the  North  Riding  of  Yorkshire,  on  the  2d  of  June,  1853, 
for  stealing  on  the  3d  day  of  May,  1853,  a  piece  of  paper,  the  property 
of  the  prosecutor,  Francis  Patteson,  and  was  convicted.  The  piece  of 
paper  found  to  have  been  stolen  had  written  upon  it  when  taken  by  the 
prisoner,  as  alleged  in  the  indictment,  an  agreement  between  the  prose- 
cutor and  the  prisoner,  signed  by  each  of  them.  The  agreement  could 
not  be  produced,  but  secondary  evidence  of  it  was  received,  from  which 
it  appeared  that  the  prisoner  contracted  thereby  to  build  two  cottages 
for  the  prosecutor,  for  a  sum  specified,  according  to  certain  plans  and 
specifications,  and  the  latter  agreed  to  pay  two  instalments,  being  part 
of  the  price  agreed  on,  at  certain  stages  of  the  works,  and  the  remain- 
der on  completion  ;  and  it  was  stipulated  that  any  alterations  that 
might  take  place  during  the  progress  of  the  building  should  not  atfect 
the  contract,  but  should  be  decided  upon  by  the  employer  and  em- 
ployed, previous  to  such  alterations  taking  place.  Under  this  instru- 
ment the  work  was  commenced  and  continued.  At  the  time  when  it  was 
stolen  by  the  prisoner,  as  alleged,  the  work  was  going  on  under  it ; 
nevertheless  it  was  proved  at  the  trial  that  when  the  agreement  was 
stolen  the  prisoner  had  been  paid  all  the  money  which  he  was  entitled  to 
under  it,  although  there  was  money  owing  to  him  for  extras  and  alter- 
ations. The  agreement  was  unstamped.  The  counsel  for  the  prisoner 
objected  at  the  close  of  the  case  for  the  prosecution,  that  from  the 
evidence  it  was  clear  that  at  the  time  the  piece  of  paper  referred  to  in  the 
indictment  was  taken  by  the  prisoner,  it  was,  in  reality,  a  subsisting 
and  valid  agreement,  and  therefore  not  the  subject  of  larceny  (as  a 
piece  of  paper  only)  at  common  law.  The  question  for  the  opinion  of 
the  court  is,  whether,  under  the  circumstances  above  stated,  the 
prisoner  could  be  lawfully  convicted  of  feloniously  stealing  a  piece  of 
paper,  as  charged  in  the  indictment.  No  judgment  was  passed  on  the 
prisoner,  and  he  was  discharged  on  recognizance  of  bail  to  appear  and 
receive  judgment  when  required. 

This  case  was  before  the  court  on  the  12th  November,  1853,  and 
was  sent  back  to  be  restated,  and  an  alteration  was  made  in  it  to  the 
effect  that  the  agreement  was  one  which  required  a  stamp.^ 

Lord  Campbell.  C.  J.  I  am  of  opinion  that  this  conviction  is 
wrong.  I  think  that  the  prisoner  could  not,  under  the  circumstances 
stated,  be  indicted  for  stealing  a  piece  of  paper.  If  the  agreement  had 
been  stamped,  it  seems  to  be  allowed,  notwithstanding  the  ingenious 

1  The  arsiuments  are  omitted. 


702  REGINA   V.   WATTS.  [CHAP,  XII. 

argument  of  Mr.  Price,  that  an  indictment  for  stealing  a  piece  of  paper 
could  not  be  supported ;  because  tlien  it  would  be  what  is  commonly 
called  a  chose  in  action,  and  by  the  common  law  larceny  cannot  be 
committed  of  a  chose  in  action.  Strictly  speaking,  the  instrument  of 
course  is  not  a  chose  in  action,  but  evidence  of  it,  and  the  reason  of 
the  common-law  rule  seems  to  be  that  stealing  the  evidence  of  the  right 
does  not  interfere  with  the  right  itself ;  jus  Jion  in  tabulis  ;  the  evidence 
may  be  taken  but  the  right  still  remains.  At  all  events,  whatever  be 
the  reason  of  the  rule,  the  common  law  is  clear  that  for  a  chose  in 
action  larceny  cannot  be  supported  ;  and  the  legislature  has  repeatedly 
recognized  that  rule  by  making  special  provision  with  regard  to  instru- 
ments which  are  choses  in  action,  and  of  which  but  for  those  enact- 
ments larceny  could  not  be  committed.  As  to  this  not  being  a  cliose 
in  action,  because  all  that  was  due  had  been  paid  upon  it,  it  appears 
that  the  agreement  is  still  executory,  and  might  be  used  by  either  side  to 
prove  their  rights.  Then  comes  the  objection  as  to  its  not  being  stamped  ; 
but  though  it  is  not  stamped,  I  am  of  opinion  that  it  is  an  agreement. 
There  is  a  very  clear  distinction  between  instruments  which  without  a 
stamp  are  wholly  void,  and  those  which  may  be  rendered  available  at 
any  moment  by  having  a  stamp  impressed  upon  them.  There  are 
many  cases  in  which  an  unstamped  agreement  is  considered  evidence 
of  a  right.  When  the  question  arises  at  Nisi  Prius,  as  soon  as  it 
appears  that  the  agreement  was  reduced  into  writing,  parole  evidence 
is  excluded,  because  the  written  instrument  is  the  proper  and  only 
evidence;  and  Bradley  v.  Bardsley  (14  M.  &  W.  873)  is  strong  to 
show  that  the  court  considers  an  unstamped  agreement  evidence  of  a 
right.  To  an  action  on  an  agreement  a  plea  that  it  was  not  stamped  is 
clearly  bad,  for  the  agreement  may  be  stamped  even  pending  the  trial, 
and  may  then  be  given  in  evidence,  as  the  stamping  reflects  back  to  the 
period  of  the  making  of  the  instrument.  I  agree  that  we  must  look  at 
the  state  of  the  instrument  at  the  time  of  the  larceny  committed;  but 
it  then  had  a  potentiality  of  being  rendered  available,  and  it  was 
evidence  of  an  agreement ;  it  was  therefore  evidence  of  a  chose  in 
action,  and  not  the  subject  of  larcen}'. 

Parke,  B.  I  am  of  opinion  that  the  conviction  is  right.  There 
is  no  doubt  that  at  common  law  larceny  cannot  be  committed  of  any 
instrument  which  is  the  evidence  of  a  chose  in  action  ;  but  I  think  that 
when  this  instrument  was  stolen  it  was  not  evidence  of  a  chose  in 
action.  Being  unstamped,  it  was  not  available  either  in  law  or  in 
equity,  and  b}-  the  operation  of  the  Stamp  Act  could  not  be  used  for 
the  purpose  of  showing  a  right.  It  was  a  piece  of  paper,  and  I  differ 
from  Lord  Campbell  in  thinking  that  the  potentiality-  of  converting  a 
chattel  into  evidence  of  a  chose  of  action  is  sufficient  to  prevent  it 
from  being  the  subject  of  larcen}'.  Like  the  parchment  on  which  a 
deed  is  written,  and  which  is  nothing  but  a  piece  of  parchment  until 
the  instrument  is  perfected,  this  in  its  imperfect  state  was  no  evidence 
of  an  agreement,  but  was  a  piece  of  paper  only.     Where  a  plaintiflT  is 


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SECT.  I.]  KEGINA   V.   WATTS.  703 

prevented  from  giving  parole  evidence  of  a  written  agreement,  it  is 
because  he  had  the  power  of  giving  better  evidence  of  it  by  getting 
the  instrument  stamped,  and  if  he  does  not  get  it  stamped,  it  is  his  own 
fault.  If  the  instrument  is  lost  and  he  cannot  get  it  stamped,  then 
still  parole  evidence  of  it  is  inadmissible.  In  the  present  case  there- 
fore, I  think  that  that  which  was  stolen  was  merely  a  piece  of  paper 
capable  of  being  converted,  but  not  yet  actually  converted  into  a  valid 
agreement,  or  the  evidence  of  an  agreement,  and  it  is  solely  as  evi- 
dence of  an  agreement  that  the  common  law  would  prevent  it  from 
being  the  subject  of  larceny. 

Alderson,  B.  I  agree  with  Lord  Campbell  that  this  was  an  agree- 
ment at  the  time  it  was  stolen.  If  the  writing  only  becomes  an  agree- 
ment at  the  time  when  it  is  stamped,  how  is  it  that  you  maj^  declare 
upon  an  unstamped  agreement?  If  the  agreement  only  dates  from  the 
stamping,  the  cause  of  action  does  not  arise  until  the  time  of  stamping, 
and,  therefore,  subsequently  to  the  declaration.  This  seems  to  prove 
that  the  thing  has  existence  as  an  agreement,  though  without  a  stamp 
it  is  not  admissible  in  evidence.  The  reason  why  title-deeds  and 
choses  in  action  are  not  the  subject  of  larcen}-,  is  because  the  parch- 
ment is  evidence  of  the  title  to  land,  and  the  written  paper  is  evidence 
of  a  right;  and,  though  the  instrument  is  stolen,  the  right  remains  the 
same.  It  has,  however,  no  existence  in  point  of  law,  as  a  piece  of 
paper  or  parchment  merely,  but  is  to  be  considered  as  part  of  the  right 
or  title  ;  and  the  extent  to  which  this  is  carried  appears  from  the 
passage  in  Lord  Coke  (3  Inst.  109),  in  which  even  the  box  containing 
the  charters  is  treated  as  part  of  the  title  also.  The  paper  becomes 
evidence  of  a  right,  and  ceases  to  have  an^'  existence  as  anything 
else. 

Coleridge,  J.  I  am  of  the  same  opinion  with  Lord  Campbell  and 
my  brother  Alderson.  It  is  admitted  that  if  this  agi'eement  had  been 
stamped,  it  would  not  have  supported  a  charge  of  stealing  a  piece  of 
paper,  a  higher  character  having  been  given  it,  and  its  character  as  a 
piece  of  paper  having  been  thereby'  absorbed  ;  and,  though  unstamped, 
I  think  that  is  still  the  case.  If  the  objection  was  taken  at  Nisi  Prius, 
the  judge  would  look  at  the  paper  to  see  what  its  character  was ;  it 
would  then  appear  to  have  written  on  it  an  agreement ;  and,  but  for 
the  Stamp  Act,  it  would  be  the  evidence  and  the  only  evidence  of  the 
agreement ;  and  even,  though  rendered  inadmissible  b}'  that  Act,  it  has 
the  effect  of  excluding  all  parole  evidence  of  that  contract.  It  is  true 
that  it  is  not  in  a  condition  in  which  it  can  be  effectuall}'  sued  upon  ; 
but  it  is  capable  of  being  rendered  complete  as  evidence,  by  being 
stamped ;  and  it  would  not  acquire  any  new  character  by  the  stamp- 
ing; it  would  still  be  the  same  evidence  of  a  chose  in  action,  rendered 
admissible  in  evidence  by  reason  of  the  stamp.  As  soon  as  the  instru- 
ment is  signed  it  becomes  an  agreement,  and  it  is  onl}'  because  the 
stamp  laws  interfere  that  it  is  prevented  from  being  used  in  evidence. 
The  point  is   extremely   subtle ;    and  one  regrets  that  the  fate  of 


704  EEGIXA   V.    SHICKLE.  [CHAP.  XII. 

parties  in  a  court  of  justice  should  depend  upon  distinctions  so  nice ; 
but  upon  the  best  consideration  which  I  can  give  to  the  case,  it  seems 
to  me  that  the  conviction  is  wrong. 

Maule,  J.  I  am  of  the  same  opinion.  I  think,  indeed  everybody 
thinks,  that  this  is  an  unstamped  agreement ;  and  if  it  is  an  agreement, 
it  is  not  the  subject  of  larceny.  When  one  speaks  of  a  piece  of  paper  as 
being  an  agreement,  it  means  that  the  paper  is  evidence  of  the  right ; 
and  as  a  right  cannot  be  the  subject  of  larceny,  neither  is  the  paper 
which  is  evidence  of  it. 

WiGHTMAN,  J.,  and  Cresswell,  J.,  concurred. 

Platt,  B.  I,  also,  am  of  the  same  opinion.  If  an  action  were 
brought  upon  this  instrument,  the  declaration  and  all  the  pleadings 
would  describe  It  as  an  agreement ;  and  it  becomes  so,  in  my  opinion, 
as  soon  as  it  is  signed  by  both  parties,  though  not  available  in  evi- 
dence without  the  impression  of  a  stamp.  The  mode  of  taking  tlie 
objection  at  Nisi  Prius  proves  the  same  thing.  The  witness  is  asked 
whether  the  agreement  was  not  in  writing ;  and  when  he  answers 
"  5'es,"  and  the  instrument  is  produced,  the  judge  looks  at  it,  and 
finding  it  to  be  an  agreement  (because  upon  no  other  ground  could  he 
do  so),  rejects  it  for  want  of  a  stamp.  It  would  surely  be  strange  to 
hold  that  it  was  no  agreement  until  it  was  stamped,  when  the  necessity 
for  a  stamp  arises  from  its  being  an  agreement.  According  to  that 
argument,  if  the  instrument  is  stamped  the  prisoner  must  be  acquitted ; 
but  if  not  stamped,  convicted.  But  it  seems  to  me  that  that  would  be 
to  bring  a  man  within  the  reach  of  the  criminal  law  by  a  side  wind,  and 
a  degree  of  subtlety  consistent  neither  with  law  or  justice. 

Williams,  J.,  and  Martin,  B.,  concurred. 

Crompton,  J.  I  think  there  is  sufficient  proof  that  this  was  a  sub- 
sisting agreement ;  and  it  wants  stamping  because  it  is  an  agreement. 

Convictiofi  reoersed. 


REGINA  V.   SHICKLE. 

Crown  Case  Reserved.  1868. 

[Reported  L.  R.  \  C.  C.  R.  \b^;  U  Cox  C.  C.  189.] 

The  following  case  was  stated  b}'  C'ockburn,  C.  J. :  — 

James  Shickle  was  tried  before  me  at  the  last  assizes  for  the  County 

of    Suffolk   on   an  indictment   for   larceu}-   for   stealing   eleven   tame 

partridges. 

There  was  no  doubt  that  the  prisoner  had  taken  the  birds  animo 

furandi,  but  a  question  arose  whether  the  birds  in  question  could  be  the 

subject  of  larceny  ;  and  the  prisoner  having  been  convicted,  I  reserved 

the  point  for  the  consideration  of  the  court. 


SECT.  I.]  REGINA   V.   SIIICKLE.  705 

The  birds  in  question  bad  been  reared  from  eggs  which  had  been 
taken  from  the  nest  of  a  hen  partridge,  and  which  had  been  placed 
under  a  common  hen.  They  were  about  three  weeks  old,  and  could  fly 
a  little.  Tlie  hen  had  at  first  been  kept  under  a  coop  in  the  prosecu- 
tor's orchard,  the  young  birds  running  in  and  out,  as  the  brood  of  a 
hen  so  confined  are  wont  to  do.  The  coop  had  however  been  removed 
and  the  hen  set  at  liberty,  but  the  young  birds  still  remained  about  the 
place  with  the  hen  as  her  brood  and  slept  under  her  wings  at  night. 

It  is  well  known  that  birds  of  a  wild  nature,  reared  under  a  common 
hen,  when  in  the  course  of  nature  they  no  longer  require  the  protection 
and  assistance  of  the  hen  and  leave  her,  betake  themselves  to  the 
woods  or  fields,  and  after  a  short  time  differ  in  no  respect  from  birds 
reared  under  a  wild  hen  of  their  own  species. 

The  birds  in  question  were  neither  tame  by  nature  nor  reclaimed. 
If  they  could  be  said  to  be  tame  at  all  it  was  only  that  their  instinct 
led  them  during  their  age  of  helplessness  to  remain  with  the  hen.  On 
their  attachment  to  the  hen  ceasing,  the  wild  instincts  of  their  nature 
would  return  and  would  lead  them  to  escape  from  the  dominion  and 
neighborhood  of  man.  On  the  other  hand,  from  their  instinctive  at- 
tachment to  the  hen  that  had  reared  them,  and  from  their  inability  to 
escape,  they  were  practically  in  the  power  and  dominion  of  the  prose- 
cutor. The  question  is  whether,  under  the  circumstances,  there  can  be 
such  property  in  birds  of  this  description  as  can  be  the  subject-matter 
of  larceu}-. 

Douglas,  for  the  prisoner.  These  birds  are/e;-ce  naturcB,  and  unless 
reclaimed  are  not  the  subject  of  larceny.  The  case  finds  that  they 
were  not  tame  nor  reclaimed  ;  that  they  were  restrained  by  their  in- 
stinct only  from  betaking  themselves  to  the  woods  or  fields,  not  being 
confined  in  any  way.  They  could  not  therefore  be  the  subject  of 
larceny. 

No  counsel  appeared  for  the  Crown. 

BoviLL,  C.  J.  I  am  of  opinion  that  upon  the  facts  stated,  the  ques- 
tion asked  of  us  must  be  answered  in  the  affirmative,  and  that  the 
conviction  is  right.  The  case  states  that  "  from  their  inability  to  es- 
cape they  were  practically  in  the  power  and  dominion  of  the  prosecu- 
tor." That  is  sufficient  to  decide  the  point.  In  Regina  v.  Cory,  10  Cox 
C.  C.  23,  the  law  on  the  subject  is  very  clearly  laid  down  by  my  brother 
Channell.  He  there  says,  speaking  of  pheasants,  hatched  under  cir- 
cumstances similar  to  those  here:  "These  pheasants,  having  been 
hatched  by  hens  and  reared  in  a  coop,  were  tame  pheasants  at  the 
time  they  were  taken,  whatever  might  be  their  destiny  afterwards. 
Being  thus,  the  prosecutor  had  such  a  property  in  them  that  they  would 
become  the  subject  of  larceny,  and  the  inquiry  for  stealing  them 
would  be  of  precisely  the  same  nature  as  if  the  birds  had  been  com- 
mon fowls  or  any  other  poultry,  the  character  of  the  birds  in  no  way 
affecting  the  law  of  the  case,  but  only  the  question  of  identity."  In 
that  statement  of  the  law  we  all  concur.     The  question  here  is,  Were 

45 


706 


STATE   V.    TAYLOR.  [CHAP.  XIT. 


these  birds  the  subject  of  property?  They  were  so  when  first  hatched, 
and  they  remained  so  at  the  time  they  were  taken  by  the  prisoner, 
though  it  might  be  that  at  a  later  period  they  would  become  wild 
and  °cease  to  have  an  owner.  The  prisoner  therefore  was  rightly 
convicted. 

Chanxell,  B.,  concurred. 

Byles,  J.     I  am  of  the  same  opinion.     The  usual  cases  of  larceny" 
of  animals  are  those  of  animals  which  being  at  first  wild  have  become 
lame  aud  reclaimed.     lu  this  case  the  only  difference  is  that  the  birds 
here  are  tame  and  have  been  so  from  their  birth,  though  they  may  be- 
come wild  at  a  future  time. 

Blackburn  and  Lush,  JJ.,  concurred. 

ConvktioJi  affirmed} 


STATE  V.   TAYLOR. 
Supreme  Court  of  New  Jersey.     1858. 

[Reported  3  Butcher,  117.] 

Green,  C.  J."  The  indictment  charges  the  defendant  with  stealing 
"  eighteen  bushels  of  oysters,  of  the  value  of  eighteen  dollars,  of  the 
goods  and  chattels  of  one  George  Hildreth."  It  is  objected  that  oysters 
being  animals  ferce  Jiaturce,  there  can  be  no  property  in  them,  unless 
they  be  dead  or  reclaimed,  or  tamed,  or  in  the  actual  power  or  posses- 
sion of  the  claimant ;  and  that  the  want  of  such  averment  is  a  fatal 
defect  in  the  indictment.  2  Bla.  Com.  390,  392  ;  Arch.  C.  P.  116  ;  3 
Chitty's  Cr.  L.,  947  ;  Wharton's  C.  L.  §§  1754-55. 

The  principle,  as  applied  to  aniraais/erce  natures,  is  not  questioned. 
But  oysters,  though  usually  included  in  that  description  of  animals, 
do  not  come  within  the  reason  or  operation  of  the  rule.  The  owner 
has  the  same  absolute  property  in  them  that  he  has  in  inanimate  things 
or  in  domestic  animals.  Like  domestic  animals,  they  continue  perpetu- 
ally in  his  occupation,  and  will  not  stray  from  his  house  or  person. 
Unlike  VLmmaXsfermnaturce,  they  do  not  require  to  be  reclaimed  and 
made  tame  by  art,  industry,  or  education  ;  nor  to  be  confined,  in  order 
to  be  within  the  immediate  power  of  the  owner.  If  at  liberty,  they 
have  neither  the  inclination  nor  the  power  to  escape.  For  the  purposes 
of  the  present  inquiry,  they  are  obviously  more  nearly  assimilated  to 
tame  animals  than  to  wild  ones,  and.  perhaps,  more  nearly  to  inanimate 
objects  than  to  animals  of  either  description.  The  indictment  could 
not  aver  that  the  oysters  were  dead,  for  they  would  then  be  of  no  value  ; 
nor  that  they  were  reclaimed  or  tamed,  for  in  this  sense  they  were  never 

1  See  also  Regina  i-.  Head,  1  F.  &  F.  350. 

~  The  opinion  only  is  given  ;  it  sufficiently  states  the  case.  Part  of  the  opinion,  not 
involving  any  question  of  larceny,  is  omitted. 


SECT.  I.]  STATE   V.   TAYLOR.  707 

wild,  and  were  not  capable  of  domestication ;  nor  that  they  were  con- 
fined, for  that  would  be  absurd.  The  only  averment  that  could  be 
made  is,  that  the}-  had  been  gathered,  or  were  in  the  actual  possession 
of  the  prosecutor,  which  certainly  is  not  necessary  in  order  to  sustain 
the  indictment.  Under  our  laws  there  may  be  property  in  oysters 
growing  naturally  upon  the  land  of  another  person,  and  which  the 
owner  may  have  acquired  by  purchase.  In  regard  to  these,  it  would 
not  be  averred  that  they  had  ever  been  gathered  or  been  under  the  con- 
trol of  the  owner  or  in  his  possession,  actual  or  constructive,  further  than 
inanimate  objects  are  in  the  possession  of  the  owner,  upon  the  principle 
that  property  in  personal  chattels  draws  after  it  the  possession.  The 
indictment  is  not  defective. 

The  more  material  question  in  the  cause  is  whether,  upon  the  case 
stated,  the  oysters  in  question  were  the  subject  of  larceny.  Was  the 
law  upon  this  point  correctly  stated  in  the  charge  to  the  jury?  The 
jury  were  instructed  that  if  the  same  oysters  which  were  planted  by 
Hildreth  were  unlawfully  taken  by  the  defendant,  with  the  intent  to 
steal  them  ;  if  the  oysters  so  planted  could  be  easily  distinguished  from 
other  oysters  that  grew  in  the  sound ;  if  they  were  planted  in  a  place 
where  oysters  did  not  naturallj^  grow ;  if  the  place  where  they  were 
planted  was  marked  and  identified,  so  that  the  defendant  and  others 
going  into  the  sound  for  clams  and  oysters  naturally  growing  there 
could  readil}'  know  that  these  oysters  were  planted  and  held  as  private 
property,  and  were  not  natural  oysters,  or  in  or  upon  a  natural  oyster 
bed,  then  the  oysters  were  the  subject  of  larcen}^,  and  the  defendant 
luight  be  convicted.  But  if  the  jury  believed  that  the  03'sters  were 
planted  in  or  upon  a  natural  bed,  they  should  be  considered  as  aban- 
doned to  the  public,  and  not  the  property  of  Hildreth ;  or,  if  the  jury 
believed  that  the  planted  oysters  were  not  marked  and  identified,  as 
before  stated,  the  defendant  should  be  acquitted. 

There  is  clearly  nothing  in  the  charge  that  conflicts  with  the  well- 
settled  law  of  the  State,  as  decided  in  Arnold  v.  Mundy,  1  Halst.  1, 
namely,  that  arms  of  the  sea,  including  both  the  waters  and  the  land 
under  the  waters,  for  the  purposes  of  navigation,  fishing,  and  all  other 
uses  of  the  water  and  its  products  are  common  to  all  the  people  of  the 
State.  Nor  is  there  anything  in  the  charge  in  conflict  with  the  princi- 
ples which  appear  to  have  been  adopted  by  the  court  in  the  earlier  case 
of  Shepard  and  Layton  v.  Leverson,  Penn.  391.  The  facts  in  evidence 
clearly  distinguish  the  present  case  from  that  of  Shepard  and  Layton  v. 
Leverson.  In  that  case  it  was  not  shown  that  the  oysters  taken  b}'  the 
defendant  were  the  identical  oysters  planted  by  the  plaintiff ;  nor  was 
there  any  mode  by  which  the  oysters  of  the  plaintifl^  could  be  identified. 
Neither  of  those  diflRculties  exists  in  the  present  case. 

The  oysters  in  question  had  once  been  the  property  of  Hildreth.  The 
only  question  is,  whether  the  planting  of  these  oysters  in  a  public 
sound,  where  all  the  inhabitants  have  a  common  right  of  fishery,  was 
necessarily  an  abandofiment,  or  a  return  of  the  property  to  the  common 


708  STATE    V.   TAYLOR.  [CHAP.  XII. 

Stock.  There  was  clearlj*  no  intention  on  the  part  of  the  owner  to 
abandon  his  property  ;  on  the  contrary,  they  were  gatliered  and  planted 
expressly  for  the  benefit  of  the  owner.  If  an  abandonment  is  to  be 
presumed,  it  will  be  a  legal  intendment  directly  against  the  truth  of  the 
ease.  The  casting  of  property  into  the  sea,  with  the  intention  of  re- 
claiming it,  is  not  an  abandonment.  "  He,"  says  Domat,  "  who  finds 
a  thing  that  is  abandoned,  that  is,  of  which  he  who  was  master  of  it, 
quits  and  relinquishes  the  possession  and  projyerty,  not  being  icilling 
to  keep  it  any  longer,  becomes  master  of  it."  Domat's  Civ.  L. ,  part  1 , 
b.  3,  title  7,  §§  2,  9  (Am.  ed.  1850,  §  2154)  ;  2  Bla.  Cora.  9,  402. 

It  was  held  by  the  Chief  Justice,  in  the  case  of  Shepard  and  Layton 
V.  Leverson,  that  the  mere  act  of  throwing  the  oysters  into  a  public 
river,  where  all  the  inhabitants  have  a  common  right  of  fishery,  was  of 
itself  an  abandonment  in  law,  on  the  ground  that,  where  the  subject  is 
put  without  the  power  of  the  owner,  where  it  is  thrown  into  the  com- 
mon stock,  from  which  it  cannot  be  distinguished,  there  can  be  no 
question  of  intent.  It  was  held  analogous  to  the  case  of  a  deer  taken 
in  a  forest,  and  turned  loose  again.  But  it  was  admitted  that  where 
the  act  relied  on  as  an  abandonment  is  in  itself  equivocal,  and  where 
the  identical  property  may  be  known  and  resumed  at  pleasure,  then  the 
intention  may  be  made  a  question.  Now  this  case  finds  that  the  oysters 
in  question  could  readily  be  identified  ;  that  no  oysters  grew  naturally 
where  they  were  planted,  and  that  the  spot  where  they  were  planted 
was  designated.  The  subject  of  the  property,  having  itself  no  power 
of  locomotion,  and  being  planted  where  no  other  oysters  naturally 
grew,  it  was  not  (as  in  the  case  of  the  deer  in  a  forest)  put  without  the 
power  of  the  owner,  nor  thrown  into  the  common  stock,  from  which  it 
could  not  be  distinguished. 

In  Fleet  v.  Hegeman,  14  Wend.  42,  it  was  held  by  the  Supreme 
Court  of  New  York  that  oysters  planted  by  an  individual  in  a  bed 
clearly  designated  in  a  bay  or  arm  of  the  sea,  which  is  a  common 
fishery,  are  the  property  of  him  who  planted  them,  and  that,  for  taking 
them  away  by  another,  trespass  lies.  This  case  was  app*roved  in  Decker 
V.  Fisher,  4  Barb.  592,  and  its  authority  recognized  in  the  more  recent 
case  of  Brinckerhofif  v.  Starkins,  11  Barb.  248  ;  Angell  on  Tide  Waters, 
139.  These  authorities  clearly  sustain  the  instruction  given  to  the  jury 
in  the  present  case. 


SECT.  I.]  COMMONWEALTH   V.    SHAW.  709 

COMMONWEALTH   v.   SHAW. 
Supreme  Judicial  Court  of  Massachusetts.     18G2. 

[Reported  4  Allen,  308.] 

Indictment  for  larceny  of  several  hundred  "  cubic  feet  of  illuminat- 
ing gas,  each  cubic  foot  being  of  the  value  of  three  mills,  of  the 
propert}^  goods,  and  chattels  of  the  Boston  Gas  Light  Company." 

At  the  trial  in  the  Superior  Court,  before  Wilkinson,  J.,  it  appeared 
that  the  defendant  occupied  a  house  in  Ashland  Street  in  the  city  of 
Boston,  and  that  a  service  pipe  of  the  Boston  Gas  Light  Company  led 
from  their  main  pipe  in  that  street  to  within  a  short  distance  of  a  gas 
meter  owned  bj-  them  and  placed  under  the  front  steps  outside  of  the 
wall  of  the  house,  but  upon  the  premises  occupied  b}'  her,  and  the  de- 
fendant made  the  usual  connection  from  the  service  pipe  with  the  inside 
supply  pipe  by  short  pieces  of  lead  pipe  belonging  to  her,  through  which 
the  company  had  supplied  her  with  gas  ;  but,  upon  non-payment  of  the 
gas  rates,  the  company  removed  the  meter  and  shut  off  the  gas  by 
closing  a  stopcock  in  the  service  pipe,  upon  the  premises  occupied  by 
her,  and  gave  her  notice  thereof;  after  which  she,  without  the  consent 
or  knowledge  of  the  companj',  and  to  avoid  paying  for  the  gas,  made  a 
connection  b}'  means  of  lead  pipe  between  the  service  pipe  and  the  pipe 
inside  of  the  house,  and  turned  the  cock  in  the  service  pipe,  and  received 
and  consumed  gas  belonging  to  the  compaii}-.  There  was  no  question 
that  the  company  was  legally  incorporated. 

The  defendant  requested  the  court  to  instruct  the  jury  that  no  con- 
viction could  be  had  under  this  evidence  ;  but  the  judge  instructed  the 
jur}'  that,  if  the}'  were  satisfied  that  the  defendant  took  the  gas  with  a 
felonious  intent,  she  was  guilty  of  larcen}'.  The  juiy  returned  a  verdict 
of  guilt}',  and  the  defendant  alleged  exceptions  to  this  ruling,  as  well  as 
to  an  order  of  the  judge  overruling  a  motion  in  arrest  of  judgment  on 
the  ground  that  the  indictment  was  insufficient  in  law. 

e/i  J^.  Pickering,  for  the  defendant. 

G.  P.  Sanger  (district  attorney),  for  the  Commonwealth. 

BiGELOw,  C.  J.  We  cannot  doubt  that  the  instructions  given  to  the 
jury  in  this  case  were  right.  There  is  nothing  in  the  nature  of  gas  used 
for  illuminating  purposes  which  renders  it  incapable  of  being  feloniousl}' 
taken  and  carried  away.  It  is  a  valuable  article  of  merchandise,  bought 
and  sold  like  other  personal  propert}',  susceptible  of  being  severed  from 
a  mass  or  larger  quantity,  and  of  being  transported  from  place  to  place. 
In  the  present  case  it  appears  that  it  was  the  propert}'  of  the  Boston 
Gas  Light  Compan}' ;  that  it  was  in  their  possession  by  being  confined 
in  conduits  and  tubes,  which  belonged  to  them,  and  that  the  defendant 
severed  a  portion  of  that  which  was  in  a  pipe  of  the  company  by  taking 
it  into  her  house  and  there  consuming  it.  All  this,  being  proved  to 
have  been  done  by  her  secretly,  and  with  an  intent  to  deprive  the  com- 


710 


MLLLALY   V,    PEOPLE.  [CHAP.  XII. 


pany  of  their  property,  and  to  appropriate  it  to  her  own  use,  clearly 
constituted  the  crime  of  larceny. 

It  was  suggested  by  the  counsel  for  the  defendant  that,  if  she  was 
guilty  of  an7offence,  it  was  not  larceny,  but  embezzlement,  inasmuch 
as  it  appeared  that  the  gas  was  intrusted  to  her  possession  by  the  com- 
pany, and  that  at  the  time  of  the  alleged  felonious  taking  she  was  the 
bailee  thereof.  But  the  facts  proved  entirely  negative  the  existence  oi 
any  such  relation  between  her  and  the  company.  The  gas  was  not  in 
her  possession.  On  the  contrary,  the  pipe  had  been  severed  from  the 
meter  by  closing  a  stopcock  in  the  service  pipe,  which  belonged  to  the 
company,  for  the  very,  purpose  of  preventing  her  obtaining  possession 
of  it.  The  fact  that  the  end  of  the  pipe  was  on  the  premises  occupied 
by  her  is  wholly  immaterial.  It  was  not  placed  there  to  be  in  her  cus- 
tody or  control,  and  she  had  no  possession  of  it  or  its  contents.  The 
facts  proved  at  the  trial  are  similar  to  those  which  were  shown  to  exist 
in  the  case  of  Regina  v.  White,  6  Cox  C.  C.  213,  in  which  a  conviction 
of  the  defendant  for  the  larceny  of  gas  was  affirmed  by  the  court  of 
criminal  appeal.  That  case,  however,  was  not  so  strong  against  the 
defendant  as  the  present  one,  because  it  there  appeared  that  the  owners 
of  the  gas  had  not  caused  it  to  be  shut  off  from  the  premises  of  the 
defendant,  to  prevent  him  from  making  use  of  it. 

As  it  is  admitted  that  the  acts  charged  on  the  defendant  were  com- 
mitted prior  to  the  time  when  St.  1861,  c.  168,  took  effect,  its  provisions 
can  in  no  way  affect  the  present  case.^ 

Exceptions  overruled. 


MULLALY  V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1881. 

[Reported  86  New  York,  365.] 

Error  to  the  General  Term  of  the  Supreme  Court,  in  the  first  judi- 
cial department,  entered  upon  an  order  made  May  20,  188 J,  which 
affirmed  a  judgment  of  the  Court  of  General  Sessions  in  and  for  the 
county  of  New  York,  entered  upon  a  verdict  convicting  the  plaintiff"  in 
error  of  the  crime  of  petit  larceny  in  stealing  a  dog.^ 

Earl,  J.  The  prisoner  was  convicted  of  stealing  a  dog  of  less  value 
than  $25.  His  counsel  contended  at  the  trial  and  has  argued  before  us 
that  stealing  a  dog  is  not  larceny,  and  whether  it  is  or  not  is  the  sole 
question  for  our  present  determination. 

The  learned  opinion  pronounced  at  the  general  term  leaves  but  little 
to  be  written  now.  At  common  law  the  crime  of  larceny  could  not  be 
committed  by  feloniously  taking  and  carrying  away  a  dog.     Wharton's 

1  See  Ferens  v.  O'Brien,  11  Q.  B.  D.  21  (larceny  of  water).  —  Ed. 

2  Arguments  of  counsel  are  omitted. 


SECT.  I.]  MULLALY   V.   PEOPLE.  711 

Cr.  Law  (4th  ed.),  §  1755;  4  Black.  Com.  235;  1  Hale's  Pleas  of  the 
Crown,  510;  Coke's  Third  Inst.  109.  And  yet  dogs  were  so  far  re- 
garded as  property  that  an  action  of  trover  could  be  brought  for  their 
conversion,  and  they  would  pass  as  assets  to  the  executor  or  adminis- 
trator of  a  deceased  owner.  Bacon's  Abr.,  Trover,  D. ;  1  Wras.  on 
Ex'rs  (6th  Am.  ed.),  775. 

The  reason  generally  assigned  by  common-law  writers  for  this  rule  as 
to  stealing  dogs  is  the  baseness  of  their  nature,  and  the  fact  that  they 
were  kept  for  the  mere  whim  and  pleasure  of  their  owners.  When  we 
call  to  mind  the  small  spaniel  that  saved  the  life  of  William  of  Orange, 
and  thus  probably  changed  the  current  of  modern  history  (2  Motley's 
Dutch  Republic,  398),  and  the  faithful  St.  Bernards,  which  after  a 
storm  has  swept  over  the  crests  and  sides  of  the  Alps  start  out  in  search 
of  lost  travellers,  the  claim  that  the  nature  of  a  dog  is  essentially  base, 
and  that  he  should  be  left  a  prey  to  every  vagabond  who  chooses  to  steal 
him,  will  not  now  receive  ready  assent. 

In  nearly  every  household  in  the  land  can  be  found  chattels  kept  for 
the  mere  whim  and  pleasure  of  the  owner,  a  source  of  solace  after 
serious  labor,  exercising  a  refining  and  elevating  influence,  and  yet  they 
are  as  much  under  the  protection  of  the  law  as  chattels  purely  useful 
and  absolutely  essential. 

This  common-law  rule  was  extremely  technical,  and  can  scarcely  be 
said  to  have  had  a  sound  basis  to  rest  on.  While  it  was  not  larceny  to 
steal  a  dog,  it  was  larceny  to  steal  the  skin  of  a  dead  dog,  and  to  steal 
many  animals  of  less  account  than  dogs.  Lord  Coke,  in  his  Institutes, 
cited  above,  said:  "Of  some  things  that  be /er^e  naturce,  being  re- 
claimed, felony  may  be  committed  in  respect  of  their  noble  and  generous 
nature  and  courage,  serving  ob  vitce  solatium  of  princes  and  of  noble 
and  generous  persons  to  make  them  fitter  for  great  employments,  as  all 
kinds  of  falcons  and  other  hawks,  if  the  party  that  steals  them  know 
they  be  reclaimed." 

In  the  reign  of  William  I.  it  was  made  grand  larceny  to  steal  a 
chattel  valued  at  twelve  pence  or  upwards,  and  grand  larceny  was  pun- 
ishable by  death,  and  one  reason  hinted  at  by  Lord  Coke  for  holding 
that  it  was  not  larceny  to  steal  dogs  was  that  it  was  not  fit  that  "  a  per- 
son should  die  for  them  ;  "  and  yet  those  ancient  law- givers  thought  it 
not  unfit  that  a  person  should  die  for  stealing  a  tame  hawk  or  falcon. 

The  artificial  reasoning  upon  which  these  rules  were  based  is  wholly 
inapplicable  to  modern  society.  Tempora  mutantur  et  leges  mutan- 
tur  in  illis.  Large  amounts  of  money  are  now  invested  in  dogs,  and 
they  are  largely  the  subjects  of  trade  and  trafflc.  In  many  ways  they 
are  put  to  useful  service,  and  so  far  as  pertains  to  their  ownership 
as  personal  property,  they  possess  all  the  attributes  of  other  personal 
property. 

If  the  common-law  rule  referred  to  ever  prevailed  in  this  State,  we 
have  no  doubt  it  has  been  changed  by  legislation.  It  is  provided  in 
2  R.  S.  690,  §  1,  that  every  person  who  shall  be  convicted  of  stealing 


712  MULLALY   V.    PEOPLE.  [cHAP.  XII. 

''  the  personal  property  "  of  another,  of  the  value  of  $25  or  under, 
shall  be  adjudged  guilty  of  petit  larceny  ;  and  then,  on  page  703,  §  33, 
'>  personal  property,"  as  used  in  that  chapter,  is  defined  to  mean 
''goods,  chattels,  effects,  evidences  of  rights  of  action,"  and  certain 
written  instruments.  This  definition  of  personal  property  is  certainly 
comprehensive  enough  to  include  dogs.  We  think  it  was  intended  to 
be  taken  literally,  and  that  the  law-makers  meant  to  make  it  the  crime 
of  larceny  to  steal  any  chattel  which  had  value  and  was  recognized  by 
tlie  law  as  property.  In  a  note  to  §  33  (3  K.  S.  837),  the  revisers 
say  that  "  this  broad  and  comprehensive  definition  is  given  to  prevent 
llie  enumeration  of  each  particular  instrument  or  article  that  may  be 
the  subject  of  larceny,  robbery,  embezzlement,  or  obtaining  property 
under  false  pretences.  The  ancient  idea  that  rights  in  action  were  not 
subjects  of  larceny  has  been  gradually  yielding  to  the  extension  of 
commerce,  the  increase  of  business,  and  the  necessities  of  mankind, 
until  at  last  we  have  begun  to  believe  that  anything  which  can  be 
stolen,  and  which  is  of  value  to  the  owner,  should  be  protected  by  the 
law."  At  the  same  time  a  system  for  the  taxation  of  dogs  was  enacted 
(1  R.  S.  704),  and  it  can  scarcely  be  supposed  that  the  legislature  meant 
to  regard  dogs  as  property  for  tlie  purpose  of  taxation  and  ^et  leave 
them  without  protection  against  thieves. 

The  definition  of  personal  property  found  in  the  statute  is  not  to  be 
referred  to  the  common  law,  but  to  the  common  understanding  of  the 
time  when  the  statute  was  enacted. 

In  view,  therefore,  of  all  the  circumstances  to  which  we  have  alluded, 
and  for  all  the  reasons  stated,  we  are  of  opinion  that  the  law-makers 
intended,  bv  the  legislation  contained  in  the  Revised  Statutes,  to  change 
the  common-law  rule  as  to  stealing  dogs,  if  it  was  before  recognized  as 
having  force  in  this  State ;  and  to  this  effect  are  the  only  judicial  de- 
cisions upon  this  subject  which  have  been  rendered  in  this  State,  so  far 
as  they  have  come  to  our  knowledge.  People  v.  Maloney,  1  Park.  Cr. 
593  ;  People  v.  Campbell,  4  id.  386  ;  see,  also.  People  ex  rel.  Longwell 
V.  McMaster,  10  Abb.  (N.  S.)  132. 

Our  attention  has  been  called  by  the  counsel  for  the  prisoner  to  cer- 
tain decisions  in  other  States,  which  tend  to  sustain  his  contention. 
F'indlay  v.  Bear,  8  Serg.  &  Rawle,  571  ;  State  of  Ohio  v.  Lymus,  26 
Ohio  St.  400;  State  v.  Holder,  81  N.  C  527;  Ward  v.  State,  48  Ala. 
IGl.  But  so  far  as  tliose  cases  announce  views  in  conflict  with  those 
above  expressed,  we  are  not  disposed  to  follow  them. 

We  conclude,  therefore,  that  the  conviction  was  right,  and  should  be 
attiimed. 

All  concur,  except  Folger,  C.  J.,  dissenting,  holding  that  the  com- 
mon law  does  not  recognize  a  dog  as  the  subject  of  larceny,  and  that 
tlie  Revised  Statutes,  in  its  definition  of  tiie  subjects  of  larceny,  do  not 
include  that  animal.  Judgment  affirmed.^ 

1  Acr.  Haywood  i'.  State,  41  Ark.  479.  See  Hurley  v.  State,  30  Tex.  App 
333.  — Ed. 


SECT.  I.]  KEGINA  V.   MORKISON.  713 


BEGIN  A   V.  MORRISON. 

Ckown  Case  Reserved.     1859. 

{Reported  Bell  C.  C.  158.] 

Crompton,  J.  We  are  of  opinion  that  this  conviction  is  right,  and 
ought  to  be  affirmed.  The  question  is  whether  a  pawnbroker's  ticket, 
in  the  usual  form,  is  the  subject  of  larcen}',  and  is  properly  described 
either  as  a  warrant  for  the  delivery  of  goods,  a  pawnbroker's  ticket,  or 
a  piece  of  paper.  We  think  that  the  instrument  in  question  is  a 
"  warrant  for  the  delivery  of  goods  "  within  the  meaning  of  the  7  «fe  8 
Geo.  4,  c.  29,  s.  5,  and  that  the  stealing  of  such  a  document  is  an 
offence  subjecting  the  offender  to  the  same  punishment  as  if  he  had 
stolen  chattels  of  the  like  value  as  the  value  of  the  goods  mentioned  in 
the  document.  .  .  .^  But,  supposing  such  a  ticket  not  to  be  a  warrant 
for  the  delivery  of  goods  within  the  provisions  of  that  statute,  we  are 
of  opinion,  on  the  other  point  in  the  case,  that  the  conviction  was  right 
as  for  stealing  a  pawnbroker's  ticket  or  piece  of  paper.  It  clearly  is  so 
unless  it  fall  within  the  rule  of  the  common  law  by  which  certain  docu- 
ments of  title,  and  certain  documents  concerning  mere  choses  in  action, 
were  not  the  subjects  of  larceny.  We  are  not  at  liberty  to  infringe 
a  rule  so  long  settled,  and  which  has  been  acted  upon  until  the  present 
time,  but  we  should  be  very  reluctant  to  extend  such  a  rule,  and  we 
ought  to  be  careful  not  to  apply  it  to  cases  to  which  the  authorities  do 
not  clearly  shew  it  to  be  applicable.  The  state  of  the  law  in  this  re- 
spect was  well  remarked  upon  a  hundred  years  ago  by  counsel  — 
Strange,  1135,  Rex  lk  Westbeer.  He  says,  "  If  I  steal  a  skin  of  parch- 
ment worth  a  shilling,  it  is  a  felony,  but  when  it  has  10,000/.  added  to 
its  value  by  what  is  written  upon  it,  it  is  no  offence  to  take  it  away  ;  " 
and  he  proceeds  to  say,  "The  use  to  be  made  of  this  observation  is, 
that  so  far  as  the  law  is  settled,  it  is  not  to  be  altered  ;  but  if  it  does 
not  exempt  this  particular  case,  there  is  no  reason  to  exclude  it;  "  and 
in  this  remark  we  fully  concur.  Documents  of  title  to  real  property  are 
not  the  subject  of  larceny,  but  we  find  no  rule  extending  such  doctrine 
to  documents  and  tokens  shewing  a  right  to  personal  property  ;  and 
the  way  in  which  the  rule  is  enunciated  as  to  real  property  seems  to 
shew  that  it  does  not  apply  to  documents  relating  to  personalty. 
Again,  if  it  is  a  document  relating  to,  or  concerning  a  mere  chose  in 
action,  as  a  bond,  bill,  or  note,  that  is,  as  I  understand  it,  a  matter 
resting  in  contract,  and  giving  a  right  by  way  of  contract  only,  it  is  not 
the  subject  of  larceny.  In  the  Queen  v.  Watts,  Dears.  C.  C.  R.  326, 
Alderson,  B.,  asks,  "  Is  not  the  reason  why  a  chose  in  action  is  not  the 
subject  of  larceny  this,  because  it  is  evidence  of  a  right,  and  that  you 
cannot  steal  a  man's  right"?  And  Maule,  J.,  page  335,  observes: 
1  The  discussion  on  this  point  is  omitted.  —  Eu. 


714  EEGiNA  V.  MORRiso:sr.  [chap,  xil 

'•'When  one  speaks  of  a  piece  of  paper  as  being  an  agreement,  it  means 
that  the  paper  is  evidence  of  a  right,  and,  as  a  right  cannot  be  the 
subject  of  larcen}-,  neither  is  the  paper,  which  is  evidence  of  it." 
Where,  however,  the  thing  represented  hj  the  paper  is  not  a  mere 
right  of  contract  or  chose  in  action,  but  is  a  personal  chattel,  to  the 
property  and  right  of  possession  of  which  the  party  has  a  right  to  treat 
himself  as  entitled,  the  rule  does  not  seem  to  apph'.  The  thing  to 
which  the  document  has  reference  is  personal  propert}'  which  ma}-  be 
stolen ;  and  the  words  in  which  the  rule  is  enunciated  appear  to  us 
to  treat  such  documents  as  not  within  the  exception.  The  rule  will 
be  found  laid  down  in  the  same,  or  nearly  the  same,  words  from  the 
earliest  time;  see  Roscoe's  Criminal  Law,  b}'  Power,  612,  and  the 
authorities  there  cited.  This  rule  is  stated  to  be  "that  bonds,  bills, 
and  notes,  which  concern  mere  choses  in  action,  were  held  at  common 
law  not  to  be  such  goods  whereof  felon}'  might  be  committed,  being  of 
no  intrinsic  value,  and  not  importing  an}'  propert}'  in  possession  of  the 
party  from  whom  they  are  taken."  This  clearly  excludes  from  the  rule 
documents  of  title  importing  property  in  possession  of  the  party,  and, 
remembering  the  former  part  of  the  rule,  as  to  documents  of  title,  so 
carefully  confined  to  realt}-,  we  think  that  such  documents  of  title  to 
personalty  cannot  be  considered  within  the  rule.  If  it  is  a  mere 
agreement  to  deliver  property,  not  the  party's  own,  or  not  specific,  it 
would,  we  think,  be  within  the  rule.  It  would  rest  in  agreement, 
would  confer  a  right  of  action  only,  and  would  be  in  every  respect  a 
chose  in  action.  But  we  look  at  the  pawnbroker's  ticket  as  importing  a 
property  in  possession.  We  had  some  doubt  at  first  whether  the 
part}'  could  be  said  to  have  the  right  to  the  property  in  possession 
according  to  the  meaning  of  the  rule ;  but  it  is  quite  clear  that  the 
possession  of  the  bailee,  or  pawnee,  is  the  possession  of  the  bailor  or 
pawnor  for  the  purpose  of  an  indictment,  and  he  has  a  right  to  lay  the 
goods  pawned  or  bailed  as  iiis  goods,  that  is,  as  goods  his  property  and 
in  his  possession  :  goods  pawned,  and  the  like,  may  be  laid  to  be  the 
goods  and  chattels  of  the  person  to  whom  they  are  so  entrusted,  or  of 
the  owner,  at  the  option  of  the  prosecutors;  see  Jervis  Arch'iold,  by 
Welsby,  14th  edition,  34,  where  the  authorities  on  this  subject  are  col- 
lected. We  think,  therefore,  that  we  should  be  extending  the  rule 
further  than  we  are  warranted  by  any  authority  in  doing  if  we  were 
to  hold  that  it  extended  furtlier  than  to  cases  where  the  document 
concerns  choses  in  action  merely,  and  is  only  an  agreement  to  deliver 
personal  property,  not  the  party's  own  ;  and  we  think  that  in  the 
present  case  the  document  relates  to  personal  property  to  Avhich  the 
party  is  entitled,  and  that  he  is  not  the  less  entitled  to  the  possession 
because  there  is  a  lien,  which  there  is  in  so  many  cases  of  bailment, 
where  such  lien  does  not  interfere  with  the  right  of  property  or  posses- 
sion as  far  as  concerns  indictments.  It  should  be  observed  that  this 
construction  by  no  means  makes  the  provisions  of  the  7  &  8  Geo.  4 
useless,  as  that  statute  has  the  effect  of  makinsc  the  stealing,  which 


SECT.  I.]  EEGINA   V.   MOREISON.  715 

might  otherwise  be  the  stealing  of  a  chattel  of  extremely  small  value, 
a  stealing  of  a  chattel  of  the  like  value  as  the  value  of  the  goods  men- 
tioned iu  the  document;  and  as  there  may  be  cases  of  orders  for  the 
delivery  of  goods  which  import  no  property  in  any  specific  goods, 
and  where  the  rights  of  the  holder  may  only  depend  on  a  contract 
to  deliver  some  goods,  so  that  the  document  is  in  effect  the  evidence 
of  a  mere  chose  iu  action,  and  would  not  be  the  subject  of  larceny 
if  not  within  the  provisions  of  the  statute.  AVe  should  add  tliat  it 
would  be  very  difficult  to  hold  the  present  ticket  not  to  be  the  subject 
of  larcen}-  without  overruling  the  case  of  Eogina  v.  Boulton,  1  Den.  C. 
C.  R.  508,  a  decision  in  this  court  binding  upon  us.  It  was  there  held 
that  a  railway  ticket  in  the  usual  form  was  a  chattel,  and  the  subject  of 
an  indictment  for  obtaining  goods  under  false  pretences.  That,  like 
the  ticket  in  the  present  case,  was  in  the  nature  of  a  token,  and  it  evi- 
denced the  right  of  being  carried  on  the  railway  without  further 
charge,  and  it  was  more  in  the  nature  of  a  mere  agreement  and 
of  a  document  concerning  a  mere  chose  in  action  than  the  present, 
•where  it  imported  a  right  to  personal  property.  The  court  held  it, 
however,  to  be  a  chattel,  valuable  as  conferring  the  privilege  of  travel- 
ling without  further  payment.  If  the  ticket  in  the  present  case  be  the 
subject  of  larcen}-,  and  not  within  the  exception  referred  to,  the 
description  of  a  "pawnbroker's  ticket,"  or  of  a  "  piece  of  paper,"  is 
clearly  sufficient.  For  these  reasons  we  think  that  the  conviction  is 
right,  and  that  it  ought  to  be  affirmed.  Conclction  Affirmed. 


716  EEX   V.    W.VLSH.  [chap.  XII. 

SECTION  II. 

Possession. 

(a)  The  Act  of  Assuming  Possession. 

REX  V.  WALSH. 
Crown  Case  Reserved.     1824. 

[Reported  1  Moodi/  C.  C.  14.] 

The  prisoner  was  tried  before  Tliomas  Denman,  Esquire,  Common 
Serjeant,  at  tlie  Old  Bailey  Sessions,  January,  1824,  on  an  indictment 
for  stealing  a  leathern  bag  containing  small  parcels,  the  property  of 
William  Ray,  the  guard  to  the  Exeter  mail. 

At  tlie  trial  it  appeared  that  the  bag  was  placed  in  the  front  boot, 
and  the  prisoner,  sitting  on  the  box,  took  hold  of  the  upper  end  of  the 
bag,  and  lifted  it  up  from  the  bottom  of  the  boot  on  which  it  rested. 
He  handed  the  upper  part  of  the  bag  to  a  person  who  stood  beside 
the  wheel  on  the  pavement,  and  both  had  hold  of  it  together,  endeavor- 
ing to  pull  it  out  of  the  boot,  with  a  common  intent  to  steal  it.  Before 
they  were  able  to  obtain  complete  possession  of  the  bag,  and  while 
they  were  so  engaged  in  trying  to  draw  it  out,  they  were  interrupted  by 
the  guard  and  dropped  the  bag. 

The  prisoner  was  found  guilt}-,  but  the  facts  above  stated  were  spe- 
cially found  b}-  the  jury,  in  answer  to  questions  put  to  them  b}-  the 
Common   Serjeant. 

The  Common  Serjeant  entertaining  some  doubts  whether  the  prisoner 
could  be  truly  said  to  have  "  stolen,  taken,  and  carried  away"  the  bag, 
he  respited  the  judgment,  in  order  that  the  opinion  of  the  judges  might 
be  taken  on  the  case. 

In  Easter  term,  1824,  the  judges  met  and  considered  this  case. 
The}'  held  the  conviction  right,  being  of  opinion  that  there  was  a 
complete  asportation  of  the  bag.^ 

1  Ace.  Rex  V.  Lapier,  2  East  P.  C.  557  ;  Harrison  v.  People,  50  N.  Y.  518  ;  State  v. 
Jones,  65  N.  C.  395  ;  State  i-.  Craige,  89  N.  C.  475 ;  Eckels  v.  State,  20  Ohio  St.  508  ; 
State  V.  Chambers,  22  W.  Va.  779.  —Ed. 


SECT.  II.j 


REGINA   V.    WHITE. 


717 


REGINA  V.  WHITE.  ^^ 

Crown  Case  Reserved.     1853.  ^    n 

[Reported  6  Cox  C.  C.  213  ;  Dearslej/  C.  C.  203.]  (b 

The  prisoner  was  indicted  at  the  last  Quarter  Sessions  for  Berwick-    ^' 
upon-Tweed  for  stealing  5000  cubic  feet  of  carburetted  hydrogen  gas  of  .^ 
the  goods,  chattels,  and  property  of  Robert  Oswald  and  others.     Mr.^ 
Oswald  was  a  partner  in  the  Berwick  Gas  Company,  and  the  prisoner, 
a  householder  in  Berwick,  had  contracted  with  the  company  for  the 
supply  of  his  house  with  gas  to  be  paid  for  by  meter.     The   meter, 
whicli  was  hired  by  the  prisoner  of  the  company,  was  connected  with 
an  entrance  pipe,  through  which  it  received  the  gas  from  the  company's    o, 
main  in  the  street,  and  an  exit  pipe  through  which  the  gas  was  con-'^^ 
veyed  to  the  burners.     The  prisoner  had  the  control  of  the  stopcock  at 
the  meter,  by  which  the  gas  was  admitted  into  it  through  the  entrance 
pipe,  and  he  only  paid  the  company  and  had  only  to  pay  them  for  such    ^ 
quantity  of  gas  as  appeared  by  the  index  of  the  meter  to  have  passed 
through  it.     The  entrance   and  exit  pipes  were  the  property   of  the 
prisoner.     The  prisoner,  to  avoid  paying  for  the  full  quantity  of  gas 
consumed,  and  without  the  consent  or  knowledge  of  the  company,  had 
caused  to  be  inserted  a  connecting  pipe  with  a  stopcock  upon  it  into 
the  entrance  and    exit  pipes  and   extending  between  them  ;  and  the 
entrance  pipe  being  charged  with  the  gas  of  the  company,  he  shut  the 
stop-cock  at  the  meter  so  that  gas  could  not  pass  into  it,  and  opened 
the  stop-cock  in  the  connecting  pipe,  when  a  portion  of  the  gas  as- 
cended through  the  connecting  pipe  into  the  exit  pipe  and  from  thence 
to  the  burners  and  was  consumed  there,  and  the  gas  continued  so  to 
ascend  and  be  consumed  until  by  shutting  the  stop-cock  in  the  con- 
necting pipe  the  supply  was  cut  off.      This  operation  was  proved  to 
have  taken  place  at  the  time  specified  by  the  prosecutor.     It  was  con- 
tended for  the  prisoner  that  the   entrance  pipe   into   which    the   gas 
passed  from  the  main  being  the  property  of  the  prisoner,  he  was  in 
lawful  possession  of  the  gas  by  the  consent  of  the  company  as  soon  as 
it  had  been  let  into  his  entrance  pipe  out  of  their  main,  and  that  his 
diverting  the  gas  in  its  course  to  the  meter  was  not  an  act  of  larceny. 
I  told  the  jury  that  if  they  were  of  opinion  on  the  evidence  that  the 
entrance  pipe  was  used  by  the  company  for  the  conveyance  of  the  gas     T 
by  the  permission  of  the  prisoner,  but  that  he  had  not  by  his  contract 
any  interest  in  the  gas  or  right  of  control  over  it  until  it  passed  through 
the  meter,  his  property  in  the  pipe  was  no  answer  to  the  charge  ;  that 
there  was  nothing  in  tlie  nature  of  gas  to  prevent  its  being  the  subject 
of  larceny  ;  and  that  the  stopcock  on  the  connecting  pipe  being  opened 
by  the  prisoner,  and  a  portion  of  the  gas  being  propelled  through  it  by  C^, 
the  necessary  action  of  the  atmosphere  and  consumed  at  the  burners,     ^ 
there  was  a  sufficient  severance  of  that  portion  from  the  volume  of  gas 


'i. 


^ 


718 


REGINA   V.   WHITE.  [CHAP.  XII. 


in  the  entrance  pipe  to  constitute  an  asportavit  by  the  prisoner ;  and 
that  if  the  gas  was  so  abstracted  with  a  fraudulent  intent  he  was  guilty 
of  larceny."  Tiie  jury  answered  the  questions  put  to  them  in  the  affir- 
mative and  found  the  prisoner  guilty  ;  I  postponed  judgment,  taking 
recoo-nizance  of  bail  according  to  the  statute  for  the  appearance  of  the 
prisoner  at  the  next  Sessions  to  receive  judgment  if  this  court  should 
be  of  opinion  that  he  was  rightly  convicted. 

Ballantine  for  the  prisoner.  The  prisoner  was  not  guilty  of  larceny. 
He  received  the  gas  with  the  full  consent  of  the  company,  and  the 
evidence  only  shows  that  he  did  not  account  with  the  company  accord- 
ing to  his  contract.  The  prisoner  was  guilty  of  fraud  in  evading  the 
accounting  bv  the  meter,  but  his  conduct  was  not  felonious. 

Lord  Campbell,  C.  J.  He  took  the  gas  from  the  company  against 
their  will  instead  of  receiving  it  properly  and  accounting  for  it. 

Ballantine.  The  Gas  Works  Clauses  Act,  10  Vict.  c.  15,  §  18,  pro- 
vides a  specific  penalty  for  this  very  offence,  which  would  hardly  have 
been  done  if  it  had  been  regarded  as  a  larceny. 

Maule,  J.  That  clause  may  be  intended  to  provide  against  frauds 
of  a  different  kind,  such  as  damaging  the  machinery  or  altering  the  in- 
dex of  the  meter,  which  would  not  be  larceny. 

Lord  Campbell,  C.  J.     Is  not  this  a  taking  invito  domino  ? 
Ballantine.     The  delivery  of  the  gas  is  voluntary  and  the  possession 
was  not  obtained  by  fraud. 

Maule,  J.  The  taking  was  by  turning  the  gas  into  a  new  channel 
without  the  leave  of  the  company  and  that  was  done  with  intent  to 
defraud. 

Ballantine.     There  was  no  trespass. 
■^  <^  Maule,  J.     If  this  gas  when  taken  was  in  the  lawful  possession  of 

7c^  the  prisoner  and  he  was  only  guilty  of  a  breach  of  contract  in  not 
(jr  accounting,  you  must  say  the  same  of  the  surreptitious  introduction  of 
y  new  burners. 

Ballantine.     An  evasion  of  the  meter  and  an  interference  with  it 

;  stand  on  the  same  ground.     The  meter  is  only  the  voucher  of  an  ac- 

0  count,  and  if  there  is  a  delivery  according  to  contract  on  the  one  hand 

"^  and  only  a  fraudulent  dealing  with  a  voucher  on  the  other,  there  is  no 

jj-j^  larceny. 

^      Lord  Campbell,  C.  J.     I  think  that  the  conviction  ought  to  be 

.  affirmed  and  that  the  direction  of  the  learned  recorder  was  most  accu- 

'  ^  rate.    Gas  is  not  less  a  subject  of  larceny  than  wine  or  oil ;  but  is  there 

^         here  a  felonious  asportation  ?     No  one  who  looks  at  the  facts  can  doubt 

'         it.     The  gas  no  doubt  is  supplied  to  a  vessel  which  is  the  property  of 

'  the  prisoner,  but  the  gas  w-as  still  in  the  possession  of  the  company. 

Then,  being  in  the  possession  of  the  company  and  their  property,  it  is 

taken  away  animo  furatidi  by  the  pi-isoner.     If  the  property  remains 

in  the  company  until  it  has  passed  the  meter,  —  which  is  found,  —  to 

take  it  before  it  has  passed  the  meter  constitutes  an   asportation.     If 

tlie  asportation  was  with  a  fraudulent  intent  —  and  this  the  jury  also 


1 


SECT.  II.] 


COMMONWEALTH   V.   BAERY. 


719 


have  found  —  it  was  larceny.  As  to  the  Act  of  Parliament  the  legis- 
lature has  for  convenience  sake  added  a  specific  penalty,  but  that  can- 
not reduce  the  offence  to  a  lower  degree.  My  brother  Maule  has, 
however,  given  a  probable  explanation  of  that  provision. 

Pakke,  B.,  Maule,  J.,  Talfourd,  J.,  and  Martin,  B.,  concurred. 

Conviction  affirmed. 


COMMONWEALTH   v.   BARRY. 
Supreme  Judicial  Court  of  Massachusetts.     1878. 

[Reported  125  Afassachiisetts,  390.J  < 

Indictment  for  larceny  of  a  trunk  and  its  contents. 
At  the  trial  in  the  Superior  Court,  before  Dewey,  J.,  it  was  proved 
that  one  Kerr,  a  travelUng  salesman  from  New  York,  had  caused  the 
trunk  in  question  to  be  checked  at  the  Union  Station  in  Worcester,  for 
Hartford,  Connecticut,  at  about  half-past  four  in  the  afternoon  of  May 
11,  and  had  himself  taken  a  train  leaving  at  that  time;  but,  as  there 
was  not  time  to  load  the  trunk,  it  was  retained  in  the  baggage  room  at 
Worcester  until  the  departure  of  the  express  train  leaving  Worcester 
for  Hartford  at  half-past  ten  at  night,  when  it  was  put  upon  the  cars, 
and  arrived  at  New  York  early  on  the  morning  of  May  12,  with  a  New 
York  check  upon  it;  that  one  Briggs  arrived  in  New  York  on  the 
same  train,  and  with  a  check  corresponding  with  the  check  on  the 
trunk,  obtained  the  trunk  and  took  it  to  a  hotel ;  that  the  trunk  was 
subsequently  sent  by  him  to  Baltimore,  where  it  was  afterwards  found 
by  its  owner,  rifled  of  its  contents ;  and  that  Briggs  was  convicted  in 
New  York  of  the  larceny  of  the  trunk  and  its  contents,  and  was 
sentenced  to  the  state  prison. 

There  was  also  evidence  tending  to  show  that  Briggs,  in  company 
with  the  defendant,  was  at  the  Union  Station  in  AYorcester  on  the 
afternoon  and  evening  of  Mav  H  ;  that  Briggs  caused  a  valise  to  be 
checked  for  New  York,  which  was  placed  by  the  baggage  master  on 
the  trunk  in  question  ;  that  the  defendant,  according  to  a  preconcerted 
plan  between  him  and  Briggs,  got  over  the  counter  at  the  window  of 
the  baggage  room  where  baggage  is  checked,  without  permission,  and 
asked  °the°  bao-gage  master  to  permit  him  to  place  a  package  in  the 
valise,  showing^  a  check  'for  the  same  ;  that  he  was  permitted  to  do 
this,  and,  while  he  was  at  the  valise  and  trunk,  Briggs  called  the 
attention  of  tlie  baggage  master  to  the  window  by  a  question,  and  the 
defendant  changed  the  checks  on  the  valise  and  trunk,  and  at  once 
left  the  baggage  room  through  a  regular  exit.  This  was  all  the  evi- 
dence as  to  what  the  defendant  did  to  the  trunk  at  the  station. 

The  defendant  requested  the  judge  to  give  the  following  instructions  : 
•«  1.  On  the  whole  evidence,  the  jury  would  not  be  warranted  in  finding 


^ 


COMMONWEALTH   V.    BARKY. 


[chap.  XIT. 


■•^ 


the  defendant  guilty.  2.  If  the  jury  find  that  all  that  the  defendant 
did  was,  according  to  a  preconcerted  plan  with  some  person,  to  change 
the  checks  on  the  trunk  and  valise,  and  that  the  asportation  of  the 
trunk  and  its  contents  was  done  by  some  other  person,  they  cannot 
convict  of  larceny.  3.  There  is  no  evidence  in  the  case  to  warrant  the 
jury  in  finding  tliat  the  defendant  did  anything  more  than  to  change  the 
checks  on  th" trunk  and  valise,  having  previously  arranged  with  some 
other  person  so  to  do.  4.  If  the  jury  find  that  the  defendant  arranged 
with  Briggs  that  the  former  should  change  the  checks  on  the  trunk  and 
valise,  and  he  did  so  change  the  checks,  and  if,  in  pursuance  of  the 
plan,  Briggs  accompanied  the  trunk  on  the  same  train  to  New  York 
and  ther^  received  the  trunk  from  the  railroad  company  and  rifled  it  of 
its  contents,  and  there  is  no  evidence  which  satisfies  the  jury  that  the 
defendant  was  present  with  Briggs  in  New  York,  and  with  him  re- 
ceived the  trunk,  they  cannot  convict." 

The  judge  refused  to  give  these  instructions;  but  instructed  the  jury 
that  it  was  necessary  and  was  sufficient,  in  order  to  convict  the  de- 
fendant, that  they  should  be  satisfied  beyond  a  reasonable  doubt 
"that  the  defendant,  at  the  railroad  station  in  Worcester,  fraudulently 
and  feloniously  took  the  trunk  into  his  temporary  possession  and  con- 
trol, and  while  so  having  it  fraudulently,  with  the  intent  to  continue  to 
have  said  trunk  under  his  control,  and  appropriate  it  to  his  own  use  or 
the  use  of  himself  and  confederate,  fraudulently  and  feloniously  took 
off  the  Hartford  check  from  the  same,  which  the  railroad  company  had 
placed  on  it,  the  owner  having  a  corresponding  check,  and  placed 
thereon  a  check  of  tlie  company  for  New  York,  whereof  he  held 
a  corresponding  check  which  would  entitle  him  to  have  the  trunk 
transported  to  New  York,  and  to  receive  the  trunk  in  New  York  of 
the  company  on  its  arrival  there,  and  the  trunk  was  carried  to  New 
York  as  the  trunk  of  the  defendant,  or  of  which  he  was  entitled  to 
the  possession  and  control,  and,  by  reason  of  the  changed  check  there- 
on, the  trunk  with  its  contents  were,  on  its  arrival  at  New  York, 
delivered  to  the  defendant  or  to  some  person  for  him.*' 

The  jury  returned  a  verdict  of  guilty ;  and  the  defendant  alleged 
exceptions. 

W.  S.  B.  Hojykins,  for  the  defendant. 
C.  R.  Train^  Attorney  General,  for  the  Commonwealth. 
Lord,  J.  We  do  not  understand  that  the  presiding  justice  intended, 
by  the  language  used,  to  instnict  the  jury  that  the  temporary  pos- 
session referred  to  in  the  instructions  was,  in  itself,  an  asportation. 
■^  It  does  not  appear  that  the  question  whether  there  was  an  asportation  at 
J  or  before  the  changing  of  the  checks  was  raised  at  the  trial,  or  that  the 
e  attention  of  the  court  was  called  to  that  subject.  An  asportation  at 
^   tliat  precise  time  was  unimportant.     The  real  question  was,  whether 

4  the  defendant  then,  feloniously  and  with  intent  to  steal,  set  in  motion 
an   innocent   agency,   by  which   the   trunk   and  contents  were   to  be 
I  \  removed  from  the    possession  of  the  true   owner,  and   put   into   the 


cils 


Gltv. 


^JJLjooui  . 


Cxvo^A^  "^vsiLefi^  tX^vjoJt    Jc5t^i-/x£^    vj^ro-,^  o.^^:5LxJo^<^rvjaA-iji 


"^3^  cUi^-^cA-  OCX- VVsuoo-  \j^<^rvJf^. 

^jlJo.  Wsjoiji  UL^tv^  O-J^^^^-S-  ^^i^JV  _A^>-A.  'vvv^c>-CL.Cj->rv  ^JV.^ 

A_JCrtx.-cSl.   Q-Jcrvw^  cx.^o.'v.a-*      '^Ai-oo'^    'vv.xrx 


1 


y>rrr> 


> 


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-->'-?Ki) 


<i_>c:> 


^ 


C^^ 


"OirXrvfl.      Q_^<5,^--v-SLrfl, 


\LflL>fOi-A-AjQ        ^ 


^^ 


-  .JkJIo       jO        ^Ji^^^-O^T^W^ 


i'-'^V'- 


4^ 


KJ 


'■-■^  .   ,«!rTCVl^-<A.^ 


^^ 


^ 


SECT  II.]  COMMONWEALTH   V.    BARRY.  721 

defendant's  possession,  and  b}'  means  of  such  agency  effected  tiie 
purpose ;  and  tlie  temporary  possession  and  control,  to  which  the 
court  referred,  must  be  understood  to  mean  such  possession  and  con- 
trol as  enabled  the  defendant  to  execute  the  device  by  which,  through 
such  innocent  instrumentalit}',  he  should  become  possessed  of  the 
property. 

There  was  evidence  tending  to  show  that  the  defendant  and  Briggs 
were  acting  in  pursuance  of  a  common  purpose,  and  that  the  acts  of 
each  were  the  acts  of  both  ;  and,  inasmuch  as  no  question  was  raised 
upon  this  subject,  it  is  taken  to  be  true  that  what  one  did  was  the  act 
of  both,  and  that  the  subsequent  actual  possession  of  the  trunk  b\^ 
Briggs  was  the  possession  of  the  defendant.  It  will  be  seen,  therefore, 
that,  by  the  instructions  of  the  presiding  judge,  the  jury  were  author- 
ized to  find  the  defendant  guilty  of  larceny,  if,  in  the  mode  stated,  he 
or  his  confederate  in  action  obtained  possession  of  the  trunk  and  its 
contents. 

This,  as  we  understand,  has  been  the  law  from  the  earliest  period  : 
"  There  is  no  occasion  that  the  carrying  away  be  by  the  hand  of  the 
party  accused,  for  if  he  procured  an  innocent  agent  to  take  the 
property,"  by  means  of  which  he  became  possessed  of  it,  "  he  will 
himself  be  a  principal  offender."  3  Chit.  Crim.  Law,  925.  It  is  held 
to  be  a  larceny  "  if  a  person,  intending  to  steal  my  horse,  take  out  a 
replevin,  and  thereby  have  the  horse  delivered  to  him  by  the  sheriff" ; 
or  if  one  intending  to  rifle  my  goods  get  possession  from  the  sheriff, 
by  virtue  of  a  judgment  obtained  without  any  the  least  color  or  title, 
upon  false  affidavits,  &c. ;  in  which  cases,  the  making  use  of  legal  pro- 
cess is  so  far  from  extenuating  that  it  highly  aggravates  the  offence, 
by  the  abuse  put  on  the  law  in  making  it  serve  the  purposes  of  op- 
pression and  injustice."  1  Hawk.  c.  3-3,  §  12.  1  Hale  P.  C.  507. 
Chissers'  case,  T,  Raym.  275.  Wilkins'  case,  cited  in  1  Hawk.  c.  33, 
§  22 ;  s.  c.  1  Leach  (4th  ed.)  520.  It  will  thus  be  seen  that  an  aspor- 
tation may  be  efllected  b}'  means  of  innocent  human  agenc}',  as  well  as' 
by  mechanical  agenc}',  or  by  the  offender's  own  liand. 

The  case  has  been  argued  as  if  it  was  intended  by  the  presiding 
justice  to  rule  that  the  jury  must  find  that,  at  the  instant  of  the 
exchange  of  the  checks,  there  was  such  an  actual  manual  change  in  fhe 
possession  as  of  itself  to  be  an  asportation.  We  do  not  so  understand 
the  instruction.  An  asportation  at  that  time  was  unimportant.  The 
real  question  was,  whether  the  defendant  at  that  time  feloniously  and 
with  intent  to  steal,  set  in  motion  an  innocent  agenc}-,  b}-  which  the 
trunk  and  contents  were  to  be  removed  from  the  possession  of  the 
true  owner,  and  put  into  the  defendant's  possession,  and  whether  such 
purpose  was  actually  accomplished.  If,  before  the  trunk  had  been 
started,  the  scheme  had  been  detected,  the  offence  of  the  defendant 
would  have  been  an  attempt  to  commit  larcen}',  and  doing  an  act 
towards  the  commission  of  it,  but  failing  in  the  perpetration  ;  but,  as 
soon  as  the  asportation  was  complete,  for  however  short  a  distance, 

46 


722 


EDMONDS   V.   STATE. 


[chap.  xir. 


/j 


^ 


the  offence  of  larceny  was  committed,  such  asportation  having  been 
caused  by  him,  by  fraudulent  means,  and  through  an  innocent  agent, 
unconscious  of  what,  in  fact,  he  was  doing.  As  soon  as  the  trunk  was 
placed  on  board  the  cars,  checked,  with  the  corresponding  check  in  the 
possession  of  the  defendant  or  his  confederate,  the  trunk  and  its 
contents  were  in  the  possession  and  control  of  the  defendant  or  his  con- 
federate, and  it  is  immaterial  of  which.  Nor  is  the  time  when  the 
actual  manual  possession  came  into  the  hands  of  the  parties  important, 
they  having  all  the  time  the  constructive  possession  and  the  real  con- 
trol of  it. 

The  instructions  prayed  for  by  the  defendant's  counsel  were  properly 
refused,  because  they  wholly  omitted  all  reference  to  the  purpose  and 
intent  of  the  defendant  in  what  he  did,  and  all  reference  to  the  fact 
that  the  defendant  was  an  accomplice  of  Briggs,  or  that  the  actual  sub- 
sequent possession  by  Briggs  was,  or  might  be,  the  possession  of  the 
defendant.  The  request  to  instruct  the  jury  that,  upon  the  whole  evi- 
dence, they  would  not  be  warranted  in  finding  the  defendant  guilty, 
was  also  properly  refue^d.  ^  .Exceptions  overjuled. 


/r- 


EDMONDS  V.  STATE. 
CPREME  Court  of  Alabama. 
[Reported  70  Alabama,  8.] 


^ 


"^  SoMERViLLE,  J.  The  indictment  in  this  case  charges  the  defendant 
with  the  larceu}'  of  a  hog,  which,  under  the  statute,  is  made  a  felony, 
without  reference  to  the  value  of  the  animal  stolen.  Code,  1876,  §  4358. 
The  only  evidence  in  the  case,  showing  anj'  caption,  or  asportation  of  the 
animal,  was  the  testimon}-  of  an  accomplice,  one  Wadworth.  who  made 
the  following  statement :  "That  shortly  after  dark,  on  the  18th  of  Febru- 
ary last,  witness  met  defendant  near  the  horse-lot,  on  the  plantation 
of  one  Ilges ;  that  the  two  went  together  to  witness'  house,  where  the 
latter  procured  an  axe,  and  they  then  returned  to  the  lot.  Witness 
then  got  some  corn,  and  after  giving  defendant  the  axe,  by  dropping 
some  of  the  corn  on  the  ground  tolled  the  hog  to  the  distance  of  about 
twenty  3-ards ;  that  the  defendant  then  struck  the  hog  with  the  axe, 
and  the  hog  squealed,  whereupon  immediatelj'  both  witness  and  defen- 
dant ran  away,  leaving  the  hog  where  it  was."  Upon  this  state  of 
facts,  the  court  charged  the  jury  that  if  they  believed  the  evidence,  it 
was  sufficient  to  show  such  a  taking  and  carrying  awa}-  of  the  propert}", 
if  done  feloniously,  as  was  necessary  to  make  out  the  offence  of  larceny. 
We  think  the  court  erred  in  giving  this  charge,  though  the  question 
presented  is  not  free  from  some  degree  of  doubt  and  difficulty.  The 
usual  definition  of  larceny  is,  "  the  felonious  taking  and  carrying  away 


clxxjv. 


*5^JLA-»OOl  . 


IjJc  <^>^>-o^ 


r^i>xJ^   v>rt3L/>^   i:SC:jLjoi^    Jjoo.J:jLJx.rv^o^^^Aj^cJl  -    >V^-vji^ 


1^  ^jL^/x^xj^-Cx^.  ^c^Y^ 


722 


yC.: 


,.5 


s^ 


>-» 


-I 


,'„<£?     ^ 


A  ^       /^ 


preser 
usual 


SECT.  II.]  EDMONDS   V.   STATE.  723 

of  the  personal  goods  of  another."  4  Black.  Com.  229.  It  is  defined 
in  Roscoe's  Criminal  Evidence,  as  ''  the  wrongful  taking  possession  of 
the  goods  of  another,  with  intent  to  deprive  the  owner  of  his  property  in 
them."  Rose.  Cr.  Ev.  622.  It  is  a  well  settled  rule,  liable  to  some  few  ex- 
ceptions, perhaps,  that  every  larceny  necessarily  involves  a  trespass,  and 
that  there  can  be  no  trespass,  unless  there  is  an  actual  or  constructive 
taking  of  possession  ;  and  this  possession  must  be  entire  and  absolute. 
Roscoe's  Cr.  Ev.  623-24;  3  Greenl.  Ev.  §  154.  There  must  not  only 
be  such  a  caption  as  to  constitute  possession  of,  or  dominion  over  the 
property,  for  an  appreciable  moment  of  time,  but  also  an  asportation, 
or  carrying  away,  which  may  be  accomplished  by  any  removal  of  the 
property  or  goods  from  their  original  status,  such  as  would  constitute 
a  complete  severance  from  the  possession  of  the  owner.  1  Greenl.  Ev. 
§  154  ;  Roscoe's  Cr.  Ev.  p.  625.  It  has  been  frequently  held  that  to 
chase  and  shoot  an  animal,  with  felonious  intent,  without  removing  it 
after'being  shot,  would  not  be  such  a  caption  and  asportation  as  to  con- 
summate the  offence  of  larceny.  Wolf  v.  The  State,  41  Ala.  412  ;  The 
State  V.  Seagler,  1  Rich.  (S.  C.)  30  ;  2  Bish.  Cr.  Law,  §  797.  So  it 
has  been  decided  that  the  mere  upsetting  of  a  barrel  of  turpentine, 
though  done  with  felonious  intent,  does  not  complete  the  offence,  for 
the  same  reason.  The  State  v.  Jones,  65  N.  C.  395.  The  books  are 
full  of  cases  presenting  similar  illustrations. 

On  the  contrary,  it  is  equally  well  settled  that  where  a  person  takes 
an  animal  into  an  inclosure,  with  intent  to  steal  it,  and  is  apprehended 
before  he  can  get  it  out,  he  is  guilty  of  larceny.  3  Inst.  109.  In  Wis- 
dom's case,  8  Port.  507,  519,  it  was  said,  arguendo,  by  Mr.  Justice 
Goldthwaite,  "  If  one  entice  a  horse,  hog,  or  other  animal,  by  placing 
food  in  such  a  situation  as  to  operate  on  the  volition  of  the  animal, 
and  he  assumes  the  dominion  over  it,  and  has  it  once  under  his  control, 
the  deed  is  complete  ;  but,  if  we  suppose  him  detected  before  he  has 
the  animal  under  his  control,  yet  after  he  has  operated  on  its  volition, 
the  ofTence  would  not  be  consummated."  This  principle  is,  no  doubt, 
a  correct  one  ;  but  the  true  difficulty  lies  in  its  proper  application.  It 
is  clear,  for  example,  if  one  should  thus  entice  an  animal  from  the 
possession,  actual  or  constructive,  of  the  owner,  and  toll  it  into  his 
own  inclosure,  closing  a  gate  behind  him,  the  custody  or  dominion 
acquired  over  the  animal  might  be  regarded  as  so  complete  as  to  consti- 
tute larceny.  2  Bish.  Cr.  Law,  §  806.  It  is  equally  manifest  that,  if 
one  should,  in  like  manner,  entice  an  animal,  even  for  a  considerable 
distance,  and  it  should,  from  indocility,  or  other  reason,  follow  him  so 
far  off  as  not  to  come  virtually  into  his  custody,  the  crime  would  be 
incomplete. 

The  controlling  principle,  in  such  cases,  would  seem  to  be  that  the 
possession  of  the  owner  must  be  so  far  changed  as  that  tlie  dominion 
of  the  trespasser  shall  be  complete.  His  proximity  to  the  intended 
booty  must  be  such  as  to  enable  him  to  assert  this  dominion,  by  taking 
actual   control   or   custody   by   manucaption,    if  he   so    wills.      If   he 


721 


THOMPSON   V.   STATE. 


[chap.  XIT.  ' 


abandon  the  enterprise,  however,  before  being  placed  in  this  attitude, 
he  is  not  guilty  of  the  offence  of  larceny,  though  he  may  be  convicted 
of  an  attempt  to  commit  it.  Wolf's  case,  41  Ala.  412.  It  would  seem 
there  can  be  no  asportation,  within  the  legal  acceptation  of  the  woid, 
without  a  previously  acquired  dominion. 

The  facts  of  this  case,  taken  alone,  do  not  constitute  larceny.  It  is 
not  a  reasonable  inference  from  them  that  there  was  such  a  complete 
caption  and  asportation  as  to  consummate  the  offence.^ 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  is 
remanded. 


^THOMPSON  V.  STATE. 
\    T^SuPREME  Court  of  Alabama. 

T  [Reported  94  Alabama,  535.] 

t'     J"  "V^ALKER,  J.     The  witness  for  the  State  testified  that  he  held  out  his 
if  open  hand  with  two  silver  dollars  therein,  showing  the  money  to  the 

'  ^  defendant ;  that  the  defendant  struck  witness'  hand,  and  the  money  was 
^  either  knocked  out  of  his  hand  or  was  taken  by  the  defendant,  he  could 
not  tell  positively  which.  It  was  after  twelve  o'clock  at  night,  and  the 
witness  did  not  see  the  money,  either  in  defendant's  possession  or  on 
the  ground.  The  court  charged  the  jury:  "  If  the  jury  find  from  the 
evidence  that  the  defendant,  with  a  felonious  intent,  grabbed  for  the 
money,  but  did  not  get  it,  but  only  knocked  it  from  the  owner's  hand 
with  a  felonious  intent,  this  would  be  a  suflScient  carrying  away  of  the 
money,  although  defendant  never  got  possession  at  any  time  of  said 
money."  This  charge  was  erroneous.  To  constitute  larceny,  there 
must  be  a  felonious  taking  and  carrying  away  of  personal  property. 
There  must  be  such  a  caption  that  the  accused  acquires  dominion  over 
the  property,  followed  by  such  an  asportation  or  carrying  away  as  to 
supersede  the  possession  of  the  owner  for  an  appreciable  period  of 
time.  Though  the  owner's  possession  is  disturbed,  yet  the  offence  is 
not  complete  if  the  accused  fails  to  acquire  such  dominion  over  the 
property  as  to  enable  him  to  take  actual  custody  or  control.  Frazier 
V.  The  State,  85  Ala.  17  ;  Groom  v.  The  State,  71  Ala.  14;  Edmunds 
V.  The  State,  70  Ala.  8;  Wolf  v.  The  State,  41  Ala.  412.  It  is  not 
enough  that  the  money  was  knocked  out  of  the  owner's  hand,  if  it  fell 
.to  the  ground  and  the  defendant  never  got  possession  of  it.  The  defen- 
dant was  not  guilty  of  larceny  if  he  did  not  get  the  money  under  his 
control.  If  the  attempt  merely  caused  the  money  to  fall  from  the 
owner's  hand  to  the  ground,  and  the  defendant  ran  off  without  getting 


1  Ace.  Hardeman  v.  State,  12  Tex.  App.   207.     See  Croom  v.  State,  71  Ala    14 
Lundy  v.  State,  60  Ga.  143  ;  State  v.  Alexander,  74  N.  C.  232  —  Ed. 


SECT.  II.]  PEOPLE   V.    MEYER.  725 

it,  the  larceny-  was  not  consummated,  as  the  dominion  of  the  trespasser 
was  not  complete.  Charge  No.  1  was  a  proper  statement  of  the  law  as 
applicable  to  the  evidence  above  referred  to,  and  it  should  have  been 
t^iven.^  Meversed  and  remanded. 


PEOPLE   y.   MEYER. 

Supreme  Court  of  California. 

[Reported  75  Cal.  383.] 

Sharpstein,  J.-  —  The  defendant  was  tried  on  an  information,  in 
which  it  was  charged  that  he  wilfully,  unlawfully,  and  feloniously  stole, 
took,  and  carried  away  one  overcoat,  of  the  value  of  twenty  dollars, 
the  personal  property  of  Harris  Joseph  and  Lewis  Joseph.  On  the 
trial  Lewis  Joseph  testified  as  follows :  — 

"I  had,  as  usual,  placed  and  buttoned  an  overcoat  upon  a  dummy 
which  stood  on  the  sidewalk  outside  of  my  store.  I  was  inside  the 
store  and  heard  the  chain  of  the  dummy  rattle,  and  on  coming  outside, 
found  defendant  with  said  coat  unbuttoned  from  the  dummy  and  under 
his  arm,  the  same  being  entirely  removed  from  the  dummy,  and  about 
two  feet  therefrom  and  from  the  place  where  it  had  been  originally 
placed  on  the  dummy  by  me,  and  the  accused  was  in  the  act  of  walking 
off  with  said  coat  when  grabbed  by  me,  he  being  prevented  from  taking 
it  away  because  said  coat  was  chained  to  the  dummy  by  a  chain  which 
ran  through  the  coat-sleeve,  and  the  dummy  was  tied  to  the  building 
by  a  string." 

This  was  the  only  evidence  introduced  to  prove  the  charge  of  lar- 
ceny. The  jury  on  this  evidence  returned  a  verdict  of  guilty  of  petit 
larceny  as  charged,  and  the  defendant,  having  pleaded  guilty  of  prior 
convictions  of  other  petit  lai-cenies,  was  sentenced  to  imprisonment  in 
the  state  prison  for  the  term  of  two  years. 

He  moved  for  a  new  trial,  which  was  denied,  and  from  that  order 
and  the  judgment  this  appeal  is  taken. 

Appellant  insists  that  the  verdict  is  contrary  to  the  evidence,  which 
it  is  claimed  does  not  prove  that  the  defendant  carried  away  the  coat 
which  he  is  charged  with  having  stolen,  but  proves  he  did  not. 

"Larceny,"  as  defined  in  the  Penal  Code  of  this  state,  "  is  the  felo- 
nious stealing,  taking,  carrying,  leading,  or  driving  away  the  personal 
property  of  another."  This  is  substantially  the  common-law  defini- 
tion, under  which  it  was  held  that  it  must  be  shown  that  the  goods 
were  severed  from  the  possession  or  custody  of  the  owner,  and  in  the 

1  Ace.  Eex  V.  Farrel,  2  East  P.  C.  557 ;  Com.  v.  Luckis,  99  Mass.  431.  —Ed. 

2  Part  of  the  case  discussing  a  question  of  evidence  is  omitted. —  Ed, 


12Q  PEOPLE   V.   MEYER.  [CHAP.  XII. 

possession  of  the  thief,  though  it  be  but  for  a  moment.  Thus  where 
goods  were  tied  by  a  string,  the  other  end  of  which  was  fastened  to  the 
counter,  and  the  thief  took  the  goods  and  carried  them  towards  the 
door  as  far  as  the  string  would  permit,  and  was  then  stopped,  this  was 
held  not  to  be  a  severance  from  the  owner's  possession,  and  conse- 
quently no  felony.     (3  Greenl.  Ev.,  sec.  155.) 

"  In  the  language  of  the  old  definition  of  larceny,"  says  Bishop, 
"  the  goods  taken  must  be  carried  away.  But  they  need  not  be  re- 
tained in  the  possession  of  the  thief,  neither  need  they  be  removed 
from  the  owner's  premises.  The  doctrine  is,  that  any  removal,  how- 
ever slight,  of  the  entire  article,  which  is  not  attached  either  to  the  soil 
or  to  anything  not  removed,  is  sufficient ;  while  nothing  short  of  this 
will  do."     (2  Bishop's  Crim.  Law,  sec.  794.) 

The  attorney-general  admits  that  this  is  the  doctrine  of  the  English 
cases. 

In  State  v.  Jones,  65  N.  C.  395,  the  court  says  :  ''  There  must  be  an 
asportation  of  the  article  alleged  to  be  stolen  to  complete  the  crime  of 
larceny.  The  question  as  to  what  constitutes  a  sufficient  asportation 
has  given  rise  to  many  nice  distinctions  in  the  courts  of  England,  and 
the  rules  there  established  have  been  generally  observed  by  the  courts 
of  this  country." 

People  V.  Williams,  35  Cal.  671,  was  not  so  clearly  within  the  rule 
as  this  case  is,  but  the  court  said  that  it  did  not  feel  at  liberty  to 
depart  from  a  rule  so  long  and  so  firmly  established  by  numerous  deci- 
sions. Tested  by  that  rule,  the  evidence  in  this  case  was  clearly  in- 
sufficient to  justify  the  verdict,  and  the  defendant  is  entitled  to  a  new 
trial  on  that  ground.  Judgment  and  order  reversed. 


SECT.  II.]  STATE  V.   HUNT.  727 


STATE  V.   HUNT. 

Supreme  Court  of  Iowa.     1877. 

[Reported  45  Ta.  673.] 

Defendant  was  indicted  and  convicted  of  the  crime  of  grand  larceny, 
and  sentenced  to  confinement  in  the  penitentiary  for  eighteen  months. 
His  case  is  brought  to  this  court  on  appeal. 

Beck,  J.^  The  main  objection  to  the  conviction  of  defendant  is  based 
upon  the  ground  that  the  evidence  does  not  support  the  verdict  of  the 
jury.  The  property  which  defendant  was  charged  with  stealing  was  a 
steer.  It  was  impounded  by  the  marshal  of  Independence,  and  adver- 
tised for  sale,  under  a  city  ordinance.  At  the  day  of  sale,  defendant, 
who  was  employed  as  auctioneer  to  sell  the  animal  and  anotlier  in  the 
pound,  claimed  the  steer  and  sold  it  to  a  butcher,  by  whom  it  was 
killed.  The  owner  of  the  steer,  after  it  was  butchered,  identified  it  by 
the  hide  and  certain  marks.  There  can  be  no  doubt  that  it  was  his 
property;  in  fact,  this  is  not  denied.  Defendant,  upon  the  owner 
making  claim  to  the  property,  paid  him  the  sum  he  had  received  from 
the  butcher.  It  is  insisted  that  the  evidence  fails  to  show  a  felonious 
intent  on  the  part  of  defendant,  but  establishes  the  fact  that  the  prop- 
erty was  sold  by  defendant  under  the  honest  claim  and  belief  that  it 
was  his  own.  It  is  true  that  the  defendant,  after  he  had  seen  the  steer 
in  the  pound,  did  state  that  it  was  his  property,  and  that  it  had  strayed 
from  his  possession.  But  accompanying  this  claim  was  an  inquiry  ad- 
dressed to  the  marshal  as  to  the  consequences  that  would  result  if  it 
proved  to  be  the  property  of  another.  He  was  informed  that  he  would 
be  required  to  pay  the  owner  the  value  of  the  animal.  ... 

It  is  argued  that  there  was  no  evidence  of  the  taking  of  the  ani- 
mal—that if  it  be  conceded  the  property  was  not  defendant's  and 
was  not  sold  in  the  belief  of  his  ownership,  the  facts  show  simply  a 
sale  of  property  by  defendant  which  he  did  not  own,  and  not  a  larceny. 
But  defendant  asserted  his  ownership  and  claimed  the  possession  by 
the  sale.  And  further,  he  authorized  the  butcher  to  take  the  steer 
from  the  pound.  This  was  a  sufficient  "  taking,"  and  as  it  was  done 
under  defendant's  authority  it  must  be  regarded  as  his  act. 

Affirmed. 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


728  ALDKICH    V.   PEOPLE.  [CHAP.  XII. 

ALDRICH   V.  PEOPLE. 

Supreme  Court  of  Illinois.     1906. 

[Reported  224  ///.  622.] 

The  record  in  this  case  brings  up  for  review  the  judgment  of  convic- 
tion of  Roy  Aldrich  for  the  crime  of  larceny. 

The  facts  developed  on  the  trial  were,  in  substance,  as  follows :  In 
July,  1905,  Miss  Flora  May  Barr  checked  her  trunk  at  Grand  Haven, 
Michigan,  for   Chicago,   and  took  passage  on  one  of  the  steamships 
belonging  to  the  Goodrich  Transportation  Company.     She  left  Grand 
Haven  about  9.15  on  the  evening  of  July  10  and  arrived  at  Chicago 
about  six  o'clock  on  the  morning  of  the  11th.     At  Chicago  Miss  Barr 
gave  the  check  for  her  trunk  to  a  transfer  company,  with  instructions 
to  transfer  it  to  the  Burlington  depot  and  re-check  it  to  Oakland,  Cali- 
fornia, which  was  done.      Miss  Barr  saw  the  baggageman  attach  the 
check  to  her  trunk  at  Grand  Haven,  where  she  received  a  duplicate 
check,  but  she  did  not  see  the  trunk  again  before  leaving  Chicago  for 
Oakland.     Upon  her  arrival  at  Oakland  she  gave  her  trunk  check  to 
a  transfer  company,  with  instructions  to  deliver  the  trunk  to  her   at 
the  place  where  she  intended  to  stop.     When  the  trunk  was  brought  to 
her  she  at  once  discovered  that  it  was  not  her  trunk.     She  refused  to 
receive  the   trunk,  although  it  had  a  check  attached  to  it  correspond- 
ing to  the  one  which  she  had  received  for  her  trunk  at  Chicago.     The 
trunk  which  was  sent  to  Oakland  was  a  ziuc-covered  trunk  with  an 
oval  top,  while  Miss  Barr's  trunk  was  a  canvas-covered  trunk  and  of  S 
different  shape.     Miss  Barr's  trunk  contained  between  S300  and  S400 
worth  of  wearing  apparel  and  other  articles  of  value  which  she  intended 
to  take  with  her  on  her  summer  trip  to  California,  while  the  trunk 
which  was  brought  to  her  at  Oakland  was  afterwards  found  to  contain 
nothing  except  waste  paper  and  rubbish.     She  immediately  notified 
the  Goodrich  Transportation  Company  of  the  loss  of  her  trunk  and 
shipped  the  empty  trunk  back  to  Chicago.     The  Goodrich  Transporta- 
tion Company  instituted  a  search  for  the  missing  trunk.     About  a  week 
or  ten  days  after  Miss  Barr  passed  through  Chicago  an  unknown  man 
appeared  at  the  baggage  room  of  the  Goodrich  Transportation  Com- 
pany in  Chicago  with  two  trunks,  bought  a  ticket,  and  checked  the 
trunks  to  Milwaukee.     The  servants  of  the  transportation  company,  in 
handling  the  two  trunks,  discovered  that  they  were  apparently  empty, 
—  at  least  they  were  very  light.     It  was  also  noticed  that  both  of  these 
trunks  had  the  locks  broken  and  that  they  were  fastened  with  ropes  or 
straps.     When  the  boat  arrived  at  Milwaukee   plaintiff  in  error  pre- 
sented two  checks  and  demanded  the  two  trunks.     The  employees  in 
charge  of  the  boat,  suspecting  that  this  transaction  might  not  be  all 
right,  refused  to  deliver  the  trunks  to  Aldrich  in  Milwaukee,  but  agreed 
to  re-check  them  for  him  back  to  Chicago,  which  they  did.     The  trunks 


SECT.  II.]  ALDRICH   V.    PEOPLE.  729 

were  not  called  for  after  their  return  to  Chicago  for  several  clays. 
Finally  plaintiff  in  error  presented  checks  and  demanded  the  two  trunks. 
The  transportation  company  again  refused  to  deliver  the  trunks  to 
plaintiff  in  error.  Plaintiff  in  error  called  a  second  time  and  demanded 
the  trunks,  and  threatened  legal  proceedings  unless  they  were  delivered 
to  him.  In  the  meantime  one  of  the  trunks  had  been  positively  identi- 
fied as  Miss  Barr's  lost  trunk.  It  was  afterwards  learned  that  a  man 
by  the  name  of  Frank  Bushre  had  hauled  the  two  empty  trunks  from  a 
room  occupied  by  plaintiff  in  error  in  a  house  at  128  Dearborn  avenue, 
Chicago.  It  is  also  shown  that  plaintiff  in  error  and  a  woman  known 
as  DaTsy  Dean  occu[)ied  the  room  from  which  the  trunks  were  obtained 
bv  Bushre.  Plaintiff  in  error  was  then  arrested  on  a  charge  of  larceny 
of  the  Barr  trunk  and  its  contents.  In  the  room  occupied  by  plaintiff 
in  error  and  the  woman  were  found  substantially  all  of  the  articles 
which  Miss  Barr  had  packed  in  her  trunk  in  Grand  Haven,  Michigan, 
and  these  articles  were  afterwards  identified  by  her  as  her  property. 
There  was  also  found  in  this  room  a  large  quantity  of  other  goods  of 
various  description,  among  other  things,  two  tickets  from  Grand  Haven 
to  Chicago  which  had  never  been  used. 

The  theory  of  the  prosecution  is,  that  plaintiff  in  error,  somewhere 
between  Grand  Haven  and  Chicago,  transferred  the  check  from  the 
zinc-covered  trunk  to  Miss  Barr's  trunk  and  from  her  trunk  to  the  zinc- 
covered  trunk,  and  that  the  plaintiff  in  error  secured  possession  of  Miss 
Barr's  trunk  by  having  the  duplicate  of  the  check  that  was  originally 
attached  to  the  zinc-covered  tru!ik.  Plaintiff  in  error  denies  all  con- 
nection with  the  theft,  and  claims  that  he  bought  the  stolen  trunk, 
together  with  another  large  trunk,  from  a  man  by  the  name  of  Doc. 
Lebey,  His  explanation  as  to  how  he  obtained  possession  of  the  lost 
trunk  is  not  corroborated  by  any  testimony  in  the  record  or  by  facts 
and  circumstances. 

The  indictment  charged  the  plaintiff  in  error  with  feloniously  stealing 
one  trunk  and  various  articles  of  personal  property,  the  personal  goods 
and  property  of  the  Goodrich  Transportation  Company,  a  corporation 
of  the  State  of  Wisconsin.  The  jury  found  plaintiff  in  error  guilty  and 
found  the  value  of  the  property  stolen  to  be  S230.  Motions  for  a  new 
trial  and  in  arrest  of  judgment  were  made  and  severally  overruled,  and 
plaintiff  in  error  was  sentenced  to  an  indeterminate  term  of  imprison- 
ment in  the  penitentiarj'. 

ViCKERS,  J.^  .  .  .  The  Goodrich  Transportation  Company  held  the 
trunk  and  its  contents  merely  as  bailee  of  the  rightful  owner,  of  which 
plaintiff  in  error  must,  upon  the  theory  of  the  prosecution,  be  presumed 
to  have  had  notice,  and  therefore  such  transportation  company  had  no 
authority  to  consent  to  the  title  passing,  with  the  possession,  to  plain- 
tiff in  error.  But  even  if  it  could  be  held  that  the  corporation  could 
have  given  such  consent  by  its  proper  officers,  it  certainly  cannot  be 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


730 


ALDEICH  V.  PEOPLE. 


[chap.  xn. 


said  that  the  mere  act  of  its  servants  in  turning  over  the  trunk  to 
plaintiff  in  error  upon  the  mistaken  supposition  that  he  was  entitled  to 
the  possession  thereof,  would  amount  to  such  a  consent  as  is  necessary 
to  bring  the  case  within  the  rule  contended  for  by  plaintiff  in  error.  In 
ci)  McClain  on  Criminal  Law  (vol.  1,  sec.  558,)  it  is  said  :  "  The  fact  that 
the  servant  in  whose  possession  the  property  is,  consents  to  its  taking 
will  not  prevent  the  act  being  larceny,  he  having  no  authority  to  con- 
sent, and  the  wrongdoer  being  aware  of  that  fact."  (State  v.  Mc- 
Cartey,  17  Minn.  76;  People  v.  Griswold,  64  Mich.  722;  State  v. 
EdwaVds,  36  Mo.  394.)  It  seems  clear,  on  principle,  that  if  property 
is  obtained  from  an  infant  or  an  insane  person,  who  is  legally  disquali- 
fied from  giving  consent,  with  the  felonious  intent  to  steal  the  same, 
such  consent  could  not  be  availed  of  as  a  defence  to  a  charge  of  larceny. 
The  same  principle  ought  to  apply  to  bailees,  whose  interest  in  the 
property  is  known  to  the  alleged  thief. 

In  our  opinion  the  case  at  bar  is  not  controlled  by  the  principle 
contended  for  by  the  plaintiff  in  error.     The  case  comes  within  the  rule 
laid  down  in  Commonwealth  v.  Barry,  125  Mass.  390. 
y    ^'^        -It  will  thus  be  seen  that  an  asportation  may  be  effected  by  means  of 
^Ju.      UHnnocent  human   agency  as  well   as    mechanical  agency,    or   by   the 
lP     Y    J^       offender's  own  hands.     One  may  effect  an  asportation  of  personal  prop- 
^^y     .  V>  erty  so  as  to  be  guilty  of  larceny  by  attaching  a  gas-pipe  to  the  pipes 
^        "  the  company  and  thus  draw  the  gas  into  his  house  and  consuming  it 

..  .thout  its  passing  through  the  meter.  (Clark  and  Marshall  on  Law  of 
Crimes,  p.  446,  and  cases  cited  in  note  ;  Woods  v.  People,  222  111.  293.) 
From  these  cases  the  law  appears  to  be  well  settled  that  where,  with  the 
intent  to  steal,  the  wrongdoer  employs  or  sets  in  motion  any  agency, 
either  animate  or  inanimate,  witli  the  design  of  effecting  a  transfer  of 
the  possession  of  the  goods  of  another  to  him  in  order  that  he  mcy 
feloniously  convert  and  steal  them,  the  larceny  will  be  complete,  if  in 
'pursuance  of  such  agency  the  goods  come  into  the  hands  of  the  thief 
and  he  feloniously  converts  them  to  his  own  use,  and  in  such  case  a 
conviction  may  be  had  upon  a  common-law  indictment  charging  a  felo- 
nious taking  and  carrying  away  of  such  goods.  If  in  the  case  at  bar 
the  accused  shifted  the  checks  on  the  trunks,  by  means  of  which  the 
servants  of  the  transportation  company  were. innocently  led  to  further 
the  criminal  purpose  by  delivering  the  trunk  in  question  to  the  accused, 
who  received  and  converted  the  same  to  his  own  use,  and  if  there  was 
>  in  the  mind  of  the  plaintiff  in  error  a  felonious  intent  to  steal  this 
property  pervading  the  entire  scheme  and  attending  every  step  of  it, 
then  he  is  guilty  of  larceny,  and  the  instruction  under  consideration  as 
applied  to  such  a  state  of  facts  is  a  correct  statement  of  the  law  and 

there  was  no  error  in  giving  it  to  the  jury. 

( 


I 


Judgment  affirmed, 

I. 


SECT.  II.] 


ANONYMOUS. 


731 


SECTION  II.   (continued), 
(b)  Distinction  between  Possession  and  Custod 


<^ 


-1^ 
^ 


Littleton,  Tenures,  Sect.  71.  If  I  lend  to  one  my  sheep  to  tathe  b'f^  -£  - 
land,  or  ray  oxen  to  plow  the  land,  and  he  killeth  my  cattle,  I  may  well  ^^K^l,^  JT^ 
have  an  action  of  trespass  against  him,  notwithstanding  the  lending.  ^^^"-^^    » 

Coke,  First  Institute,  ad  loc.     And  the  reason  is,  that  when  the      "^^^         ^^ 
bailee,  having  but  a  bare  use  of  them,  taketh  upon  him  as  an  owner  to    J^       ^^<-t7W 
kill  them,  he  loseth  the  benefit  of  the  use  of  them.     Or  in  these  cases       ;:-»V5   ^^^^^  ">- 
he  may  have  an  action  of  trespass  sur  le  case  for  this  conversion,  at    (/^^.^J/^f^ 
his  election.  _v^        V^    *^-^*»  ^-^-/-^ 


ANONY 

Assizes. 

[Reported  Liber  Assi 

One  a.  was  arraigned  with  the  mainor,  sc.  a  coverlet  and  two  sheetsV 
and  he  put  himself  on  his  clergy.     And  it  was  found  by  the  inquest  that 
be  was  a  guest  at  the  house  of  a  man  of  note,  and  was  lodged  within 
these  bedclothes  ;  and  it  was  found  that  he  got  up  before  day,  and  took 
these  bedclothes  out  of  the  chamber,  and  carried  them  into  the  hall,       .  •^T^^-^^'-f 
and  went  off  to  the  stable  to  find  his  horse  ;  and  his  host  summoned     ^'Oy^    .  ^-C, 
his  household  against  him.     And  it  was  asked  of  the  inquest  whether    <^V^^^    i 
he  carried  the  bedclothes  into  the  hall  with  intent  to  have  stolen  them  ;    /^2;|^^<-ti-  -^- 
and  they  said  yes.      Wherefore  he  was  adjudged  a  felon,   and  was   ^*^''^_^^\^ 
delivered  to  the  ordinary,  because  he  was  a  clerk,  etc.^  63 


v;. 


1  After  reporting  this  case,  Staunforde  (Pleas  of  the  Crown,  26)  adds  :  "  And  yet 
the  thing  stolen  seems  never  to  have  been  out  of  the  owner's 
passed  out  of  the  house  ;  so  quc^re  what  the  law  would  be  in 
For  no  wonder  it  was  allowed  for  law  at  this  time,  sc,  regr, 
tunc  temporis  voluntas  reputabatur  pro  facto,  Sj-c."    See  ace.  State  1 
439.  — Ed. 


^^-o 


r^ 


Q>^    0 


^y^^ 


[chap.  XII. 


70-! 


ANONYMOUS. 

fsJ^    (^         ^  ^^^  Bailey.     1664. 

^  {Reported  Kelyng,  35.] 

A  SILK  throster  had  men  come  to  work  in  his  own  house,  and  deliv- 
ered silk  to  one  of  them  to  work,  and  the  workmen  stole  away  part  of 
it.  It  was  agreed  by  Hyde,  Chief  Justice,  myself  and  Brother  Wylde 
being  there,  that  this  was  felony,  notwithstanding  the  delivery  of  it  to 
the  party,  for  it  was  delivered  to  him  only  to  work,  and  so  the  entire 
property  remained  only  in  the  owner,  like  the  ease  of  a  butler  who  hath 
plate  delivered  to  him ;  or  a  shepherd,  who  hath  sheep  delivered,  and 
they  steal  any  of  them,  that  is  felony  at  the  common  law.  Vid.  13 
Eliz.  4,  10 ;  3  H.  VII.,  12  ;  21  H.  VII.,  14  ;  Accord  Foulton  de  Pace. 
126.1 


^, 


^. 


^ 


REX  V.   CHISSERS. 
Exchequer.     1678. 

[Reported  T.  Raymond,  275.] 

Upon  a  special  verdict  the  jury  find  that,  on  the  day  and  at  the  place 
in  the  indictment  mentioned,  Abraham  Chissers  came  to  the  shop  of 
Anne  Charteris,  spinster,  in  the  said  indictment  likewise  named,  and 
asked  for  to  see  two  cravats  in  the  indictment  mentioned,  which  she 
shewed  to  him,  and  delivered  them  into  his  hands,  and  thereupon  he 
asked  the  price  of  them,  to  which  she  answered  7s.  ;  whereupon  the 
said  Abraham  Chissers  offered  her  3.s.,  and  immediately  run  out  of  the 
said  shop,  and  took  away  the  said  goods  openly  in  her  sight;  but 
whether  this  be  felony  or  not  is  the  question.  And  if  it  shall  be  ad- 
judged felony,  we  find  him  guilty,  and  that  the  goods  were  of  the  value 
of  7s.,  and  that  he  had  no  goods  or  chattels,  etc. ;  but  if  it  be  not- 
adjudged  felony,  we  find  him  not  guilty,  nor  that  he  fled  for  the  same. 

And  I  am  [of]  opinion  that  this  act  of  Chissers  is  felony  ;  for  that, 
1.  he  shall  be  said  to  have  taken  these  goods, /eWeo  animo  ;  for  the  act 
subsequent,  namely,  his  running  away  with  them,  explains  his  intent 
precedent ;  as  the  suing  a  replevin  to  get  the  horse  of  another  man,  to 
which  he  hath  no  title,  is  felony,  because  in  frcmdem  legis,  Co.  3  Inst. 
108.  So  if  an  officer  cometh  to  a  man,  and  telleth  him  that  he  is  out- 
lawed, when  the  oflScer  knoweth  the  contrary  to  be  true,  and  by  color 
thereof,  takes  his  goods,  it  is  felony :  Dalton's  Office  of  Sheriffs,  cap. 

1  See  ace.  U.  S.  v.  Clew,  4  Wash.  C.  C.  700 ;  Marcus  v.  State,  26  Ind.  101  ;  Gill  v. 
Bright,  6  T.  B.  Mon.  130;  State  v.  Jarvis,  63  N.  C.  556;  State  v.  Self,  1  Bay, 
242.  —Ed. 


^ 


SECT.  II.] 


REGINA   V.    SLOWLY. 


121,  fol.  489.  And  the  case  of  one  Far,  in  which  I  myself  was  a  coun- 
sel, was  thus :  Far,  knowing  one  Mrs.  Steneer,  living  in  St.  Martin's 
Lane,  in  Middlesex,  to  have  considerable  quantity'  of  goods  in  her 
house,  procured  an  affidavit  to  be  filed  in  the  Common  Pleas  of  the  due  ,^^  />  ^^^ 
delivery  of  a  declaration,  in  an  action  of  ejectione  Jirmce,  in  which  he 
was  lessor,  though  he  had  no  title,  and  thereupon  got  judgment,  and 
took  out  an  habere  facias  possess io7iem  for  the  house,  directed  to  the 
sheriff  of  Middlesex,  and  procured  him  to  make  a  warrant  to  a  bailiff 
to  execute  the  writ,  who  with  Far  came  to  the  house,  turned  Mrs. 
Steneer  out  of  possession  thereof,  and  seized  upon  the  goods,  of  a  great 
value,  aud  converted  them  to  his  own  use,  and  upon  complaint  made  b}' 
Mrs.  Steneer  to  Sir  Robert  Hyde,  then  Lord  Chief  Justice  of  B.  R.,  Far 
was  apprehended  by  his  warrant,  and  indicted  at  Justice  Hall  in  the 
Old  Bailey,  and  found  guilty,  and  hanged  ;  for  that  he  used  the  color  of  0^, 
an  action  of  ejectment  and  the  process  thereupon  to  execute  his  feloni-  ^-c^ 
ous  intent,  infraudemlegis. 

2.  Although  these  goods  were  delivered  to  Chissers  hy  the  owner,  yet 
the}'  were  not  out  of  her  possession  by  such  deliver}-,  till  the  property  ^ 

should  be  altered  b}'  the  perfection  of  the  contract,  which  was  but  in-  ^^"^(Jip 
choated  and  never  perfected  between  the  parties ;  and  when  Chissers     - 
run  awa}'  with  the  goods,  it  was  as  if  he  had  taken  them  up,  I3 
the  shop,  and  run  away  with  them.     Vide  Hill.  21  H.  VII.  14  pi 


ing  in    ^^"Vv^    ^ 


REGINA   V.   SLOWLY, 
Crown  Case  Reserved.     1873 

[Reported  12  Cox  C.  C.  269.] 

Case  reserved  for  the  opinion  of  this  court  by  Mr.  Justice  Byles. 

The  prisoners,  at  the  last  Winter  Assizes  for  the  county  of  Sussex, 
at  Lewes,  were  jointly  indicted  for  stealing  onions.  "-^2^^ 

The  prosecutor,  having  a  cart  loaded  with  onions,  met  the  prisoners,  ^  y^ 
who  agreed  to  bu}'  all  the  onions  at  a  certain  price,  namel}',  £3  16s.  for 
readv  money,   the   prisoners  saying,    "You   shall   have   your   money 
directly  the  onions  are  unloaded." 

The  onions  were  accordinglv  unloaded  b}'  the  prosecutor  and  the 
prisoners  together,  at  a  place  indicated  b}'  the  prisoners. 

The  prosecutor  then  asked  for  his  monev.  The  prisoners  thereupon 
asked  for  a  bill,  and  the  prosecutor  made  out  a  bill  accordingl3^  One 
of  the  prisoners  said  they  must  have  a  receipt  from  the  prosecutor,  and 
in  the  presence  of  the  other  made  a  cross  upon  the  bill,  put  a  one  penny 
postage  stamp  on  it,  and  then  said  they  had  a  receipt,  and  refused^  to 
restore  the  onions  or  pay  the  price. 

1  See  Bassett  v.  Spofford,  45  N.  Y.  387.  —  Ed. 


EEGINA   V.   SLOWLY. 


[chap.  XIL 


The   next  morning   the   prisoners   offered   the   onions   for   sale   at 
Hastings. 

The  jury  convicted  both  the  prisoners  of  larcen}*,   and  said  they 

found  that  the  prisoners  never  intended  to  pay  for  the  onions,  and  that 

the  fraud  was  meditated  by  both  the  prisoners  from  the  beginning. 

X    The  prisoners'  counsel  insisting  that  under  these   circumstances  there 

^bwas  no  larceny,  I  reserved  the  point  for  the  decision  of  the  Court  of 

Criminal  Appeal. 

(Signed)  J.  Barnard  Byles. 


^ 


Willoughby,  for  the  prisoners.     The  prisoners  were  not  properly 
y  convicted  of  larceny,  for  the  prosecutor  gave  credit  to  the  prisoners  for 
T  the  £3  16s.,  and  delivered  the  onions  to  them  on  such  credit.     [Kelly, 
^^  C.  B.     What  credit  was  given?     The  case  is  like  Reg.  v.  McGrath  (39 
(Xx.  J.  7,  M.  C. ;   11  Cox  C.  C.  347).]     This  is  a  different  case.     There  the 
money  was  obtained  against  the  will  of  the  owner.     Here  the  onions 
' J'^^^^-j^^were  unloaded  by  the  prosecutor.     Moreover,  it  was  proved,  though 
^i^oi  stated  in  the  case,  that  the  prosecutor  called  on  the  prisoners  in 

Y  ^  the  evening  for  the  money. 

>      ^       The  learned  counsel  then  cited  2  East  P.  C.  669  (edit.  a.d.  1805), 

V  A  and  the  cases  of  Rex  v.  Harvey  and  Reg.  v.  Nicholson,  there  cited. 
(^''V^  Also  Rex  V.  Oliver,  2  Leach,  1072  ;  R.  v.  Adams,  2  Rus.  on  Crimes, 

209  ;  Tooke  v.  Hollingsworth,  5  T.  R.  231  (Buller,  J.)  ;  Reg.  u.  Small, 
8  C.  &  P.  46  ;  Reg.  v.  Stewart,  1  Cox  C.  C.  174 ;  Reg.  v.  McKale,  37 
L.  J.  97,  M.  C. ;  11  Cox  C.  C.  32. 

Focock,  for  the  prosecution,  was  not  called  upon  to  argue. 

I        Kelly,  C.B.     I  am  of  opinion  that  the  conviction  should  be  affirmed. 

^  If  in  this  case  it  had  been  intended  by  the  prosecutor  to  give  credit  for 

^  the  price  of  the  onions,  even  for  a  single  hour,  it  would  not  have  been 

Jy   larceny  ;  but  it  is  clear  that  no  credit  was  given  or  ever  intended  to 

j".   be  given.     Any  idea  of  that  is  negatived  b}-  the  statement  in  the  case 

^  that  the  prisoners  agreed  to  buy  for  ready  monej'.     In  all  such  sales 

^[^the  delivery  of  the  thing  sold,  or  of  the  money,  the  price  of  the  thing 

•^'v  sold,  must  take  place  before  the  other ;   i.  e.,   the   seller   delivers  the 

^         thing  with  one  hand  while  he  receives  the  money  with  the  other.     No 

i^rj   >4^atter  which  takes  place  first,   the  transaction  is  not  complete  until 

^    J    both  have  taken  place.     If  the  seller  delivers  first  before  the  money 

\      J   is  paid,  and  the  buyer  fraudulently  runs  off  with  the  article,  or  if,  on 

^  the  other  hand,  the  buyer  pays  first,  and  the  seller  fraudulently  runs 

V  off  with  the  money  without  delivering  the  thing  sold,  it  is  equally 

;^  larceny. 

(^       Mellor,  J.     I  am  of  the  same  opinion.     I'he  prisoners  obtained 

I    possession  of  the  onions  by  a  trick,  and  never  intended  to  pay  for 

them,  as  the  jur}'  found.     From  the  very  first  they  meditated  the  fraud 

to  get  possession  of  them,  which  puts  an  end  to  any  question  of  its 

being  larcen}-  or  not. 

PiGOTT,  B.     The  facts   are   that  the  prosecutor  never  intended  to 


SECT.  II. J  COJLMON WEALTH   V.   O'MALLEY.  735 

part  with  the  possession  of  the  onions  except  for  ready  money.  He 
did  part  with  the  possession  to  the  prisoners,  who  obtained  the  posses- 
sion by  fraud.  The  prisoners  then  brought  in  aid  force  to  keep  pos- 
session, and  refused  to  restore  the  onions  or  pay  the  price.  Therefore 
the  possession  was  obtained  against  the  will  of  the  prosecutor. 
Dknman,  J.,  and  Pollock,  B.,  concurred.^ 

Conviction  affirmed. 


COMMONWEALTH  v.   O'MALLEY. 
Supreme  Judicial  Court  of  Massachusetts.     1867. 

[Reported  97  Massachusetts,  584.] 

Hoar,  J.^  We  are  of  opinion  that  there  was  no  evidence  to  sustain 
the  indictment  for  embezzlement,  and  that  the  conviction  was  wrong. 
The  defendant  had  been  previously  acquitted  of  larceny  upon  proof  of 
the  same  facts  ;  and  it  is  therefore  of  great  importance  to  him,  if  the 
offence  committed,  if  any,  was  larceny,  that  it  should  be  so  charged. 

To  constitute  the  crime  of  embezzlement,  the  property  which  the 
defendant  is  accused  of  fraudulently  and  feloniously  converting  to  his 
own  use,  must  be  shown  to  have  been  entrusted  to  him,  so  that  it  was 
in  his  possession,  and  not  in  the  possession  of  the  owner.  But  the 
facts  reported  in  the  bill  of  exceptions  do  not  show  that  the  possession 
of  the  owner  of  the  money  was  ever  divested.  She  allowed  the  de- 
fendant to  take  it  for  the  purpose  of  counting  it  in  her  presence,  and 
taking  from  it  a  dollar,  which  she  consented  to  lend  him.  The  money 
is  alleged  to  have  consisted  of  two  ten-dollar  bills,  three  five-dollar 
bills,  jT two-dollar  bill,  and  a  one-dollar  bill,  amounting  in  all  to  thirty- 
eight  dollars.  The  one  dollar  he  had  a  right  to  retain,  but  the  rest 
of  the  money  he  was  only  authorized  to  count  in  her  presence  and  hand 
back  to  her.  He  had  it  in  his  hands,  but  not  in  his  possession,  any  more 
than  he  would  have  had  possession  of  a  chair  on  which  she  might  have 
invited  him  to  sit.  The  distinction  pointed  out  in  the  instructions  of 
the  court  between  his  getting  it  into  his  hands  with  a  felonious  intent, 
or  forming  the  intent  after  he  had  taken  it,  was  therefore  unimportant. 
The  true  distinction,  upon  principle  and  authority,  is  that  stated  by  the 
cases  upon  the  defendant's  brief,  that  if  the  owner  puts  his  property 
into  the  hands  of  another,  to  use  it  or  do  some  act  in  relation  to  it,  in 
his  presence,  he  does  not  part  with  the  possession,  and  the  conversion 
of  it.  animo  furandi,  is  larceny.  Thus  in  The  People  v.  Call,  1  Denio, 
120,  the  defendant  took  a  promissory  note  to  endorse  a  payment  of 
interest  upon  it,  in  the  presence  of  the  owner  of  the  note,  and  then 
carried  it  off;  and  it  was  held  that  he  was  rightly  convicted  of  larceny, 

1  See  Reg.  v.  Bramley,  8  Cox  C.  C.  468.  —Ed. 

2  The  opiniou  only  is  given  ;  it  sufficiently  states  the  case. 


736  HILDEBRAND  V.   PEOPLE.  [CHAP.  XII. 

■vlthouoh  he  might  have  first  formed  the  intention  of  appropriating  it 
■ifter  i^was  put  in  his  hands.  So  where  a  shopman  placed  some  cloth- 
in<^  in  the  hands  of  a  customer,  but  did  not  consent  that  he  should  take 
it°avvay  from  the  shop  till  he  should  have  made  a  bargain  with  the 
owner,  who  was  in  another  part  of  the  shop,  his  carrying  it  ofl'  was  held 
to  be  larceny.  Commonwealth  v.  Wilde,  5  Gray,  83.  See  also  Regina 
V.  Thompson,  9  Cox  Crim.  Cas.  244  ;  Regina  v.  Janson,  4  Cox  Crim. 
Cas.  82.  In  all  such  cases  the  temporary  custody  for  the  owner's  pur- 
poses, and  in  his  presence,  is  only  the  charge  or  custody  of  an  agent 
or  servant ;  gives  no  right  of  control  against  the  owner ;  and  the  owner  s 
possession  is  unchanged.  Exceptions  sustained. 


HILDEBRAND   v.  PEOPLE. 
Court  of  Appeals  of  New  York.     1874. 

[Reported  56  New  York,  394.] 

Church,  C.  J.^  The  prosecutor  handed  the  prisoner,  who  was  a  bar- 
tender in  a  saloon,  a  fifty-dollar  bill  (greenback)  to  take  ten  cents  out 
of  it  in  payment  for  a  glass  of  soda.  The  prisoner  put  down  a  few 
coppers  upon  the  counter,  and  when  asked  for  the  change,  he  took 
the  prosecutor  by  the  neck,  and  shoved  him  out  doors,  and  kept  the 

money. 

The  question  is  presented  on  behalf  of  the  prisoner  whether  larceny 
can  be  predicated  upon  these  facts.  There  was  no  trick,  device,  or 
fraud  in  inducing  the  prosecutor  to  deliver  the  bill ;  but  we  must 
assume  that  the  jury  found,  and  the  evidence  was  sufficient  to  justify 
it,  that  the  prisoner  intended,  at  the  time  he  took  the  bill,  feloniously 
to  convert  it  to  his  own  use. 

It  is  urged  that  this  is  not  sufficient  to  convict,  because  the  prosecutor 
voluntarily  parted  with  the  possession  not  only,  but  with  the  property, 
and  did  not  expect  a  return  of  the  same  property.  This  presents  the 
point  of.  the  case.  When  the  possession  and  proi)erty  are  delivered 
voluntarily,  without  fraud  or  artifice  to  induce  it,  the  animus  fnraiidi 
will  not  make  it  larceny,  because  in  such  a  case  there  can  be  no  tres- 
pass, and  there  can  be  no  larceny  without  trespass.  43  N.  Y.  61. 
But  in  this  case  I  do  not  think  the  prosecutor  should  be  deemed  to 
have  parted  either  with  the  possession  of,  or  property  in,  the  bill.  It 
was  an  incomplete  transaction,  to  be  consummated  in  the  presence  and 
under  the  personal  control  of  the  prosecutor.  Tliore  was  no  trust  or 
confidence  reposed  in  the  prisoner,  and  none  intended  to  be.     The  de- 

1  Arc.  Keg.  v.  Thompson,  9  Cox  C.  C.  244 ;  People  v.  Johnson,  91  Cal.  265;  People 
V.  Gall,  1  Denio,  120. —En. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


Sf.CT.  II  ]  HILDEBRAND   V.    PEOPLE.  737 

lively  of  the  bill  and  the  giving  change  were  to  be  simultaneous  acts, 
and  until  the  latter  was  paid  the  delivery  was  not  complete.  The 
prosecutor  laid  his  bill  upon  the  counter,  and  impliedly  told  the  pris- 
oner that  he  could  have  it  upon  delivering  to  him  $49.90.  Until  this 
was  done  neither  possession  nor  property  passed  ;  and  in  the  mean 
time  the  bill  remained  in  legal  contemplation  under  the  control  and  in 
the  possession  of  the  prosecutor.  This  view  is  not  without  authoiitj-. 
The  case  of  Reg.  v.  McKale,  11  Cox  C.  C.  32,  is  instructive.  The 
l)rosecutrix  put  down  two  shillings  upon  the  counter,  expecting  to 
receive  small  change  for  it  from  the  prisoner.  There  being  several 
pieces  on  the  counter,  the  prosecutrix  took  up  a  shilling  of  the  pris- 
oner's money,  and  a  shilling  of  her  own,  which  she  did  not  discover 
until  she  was  putting  them  in  the  drawer.  A  confederate  just  then 
attracted  her  attention,  and  the  prisoner  passed  out  with  the  two  shil- 
lings. It  was  held,  upon  full  consideration,  that  the  conviction  for 
stealing  the  two  shiUings  was  right.  Kelly,  C.  B.,  said  :  "  The  ques- 
tion is,  did  she  part  with  the  mone}-  she  placed  on  the  counter?  I  say, 
certainly  not,  for  she  expected  to  receive  two  shillings  of  the  prisoner's 
money  in  lieu  of  it.  .  .  .  Placing  the  mone}'  on  the  counter  was  only 
one  step  in  the  transaction.  The  act  of  the  prisoner  in  taking  up  the 
money  does  not  affect  the  question  whether  the  prosecutrix  parted  with 
the  property  in  it.  The  property  is  not  parted  with  until  the  whole 
transaction  is  complete,  and  the  conditions  have  been  fulfilled  on  which 
the  property  is  to  be  parted  with.  ...  I  am  of  the  opinion  that  the 
property  in  the  two-shilling  piece  was  not  out  of  the  prosecutrix  for  a 
moment." 

In  Reg.  V.  Slowly,  12  Cox  C.  C.  269,  the  prosecutor  sold  onions  to 
the  prisoners,  who  agreed  to  pa}-  ready  money  for  them.  The  onions 
were  unloaded  at  a  place  indicated  b}'  the  prisoners,  and  the  prosecutor 
signed  a  receipt  at  the  request  of  the  prisoners,  when  the}-  refused  to 
restore  the  onions  or  pay  the  price.  A  conviction  for  larceny  was  held 
right,  the  jury  having  found  the  original  intention  felonious.  This  was 
upon  the  ground  that  the  delivery  and  payment  were  to  be  simulta- 
neous acts,  that  the  property  did  not  pass  until  payment,  and  that 
no  credit  or  trust  was  intended.  See  also  id.,  248,  257  ;  2  Russ.  on 
Or.,  22. 

The  counsel  for  the  prisoner  relies  upon  the  case  of  Reg.  v.  Thomas, 
9  C.  &  P.  741.  There  the  -prosecutor  permitted  the  prisoner  to  take  a 
sovereign  to  go  out  to  get  it  changed.  The  court  held  that  the  pri-soner 
could  not  be  convicted  of  larceny,  because  he  had  divested  himself  of 
the  entire  possession  of  the  sovereign  and  never  expected  to  have  it 
back.  This  was  a  nisi  prius  decision,  and  is  not  as  authoritative  for 
that  reason  ;  but  the  distinction  between  that  case  and  this  is  the  one 
first  suggested.  There  all  control,  power,  and  possession  was  parted 
with,  and  the  prisoner  was  intrusted  with  the  money,  and  was  not  ex- 
pected to  return  it.  Here,  as  we  have  seen,  the  prosecutor  retained  the 
control  and  legally  the  possession  and  property.      The  line  of  dis- 

47 


'738  COMMONWEALTH  V.   LANNAN.  [CHAP.  XII. 

tinction  is  a  narrow  one,  but  it  is   substantial   and   suflficientl)'  well 
defined. 

The  judgment  must  be  affirmed. 

All  concur.  Judgment  affirmed} 


COMMONWEALTH  v.  LANNAN. 
Supreme  Judicial  Court  of  Massachusetts.     189L 

[Reported  153  Massachusetts,  2^1  -1 

Holmes,  J.  The  defendant  is  indicted  for  the  larceny  of  promissory 
notes,  the  property  of  one  Teeling,  and  has  been  found  guilty.  The 
case  is  before  us  on  exceptions  to  the  refusal  of  the  court  below  to  rule 
that  the  evidence  was  insufficient  to  support  the  indictment,  and  also  to 
the  instructions  given  to  the  jury.  Tlie  evidence  tended  to  prove  the 
following  fiicts.  The  defendant  was  an  attorney  employed  by  Teeling 
to  ascertain  the  price  of  certain  land.  The  price  mentioned  to  him 
was  one  hundred  and  twenty-five  dollars.  He  told  Teeling  that  the 
lowest  price  was  three  hundred  and  twenty-five  dollars,  three  hundred 
dollars  to  go  to  the  owners  of  the  land,  fifteen  to  Bent,  the  agent,  with 
whom  the  defendant  communicated,  and  ten  dollars  to  the  defendant. 
Teeling  assented  to  the  terms,  and  gave  Bent  directions  as  to  the  deed. 
When  the  deed  was  ready,  Teeling,  Bent,  and  the  defendant  met.  The 
defendant  approved  the  deed,  and  said  to  Teeling,  "  Pay  over  the 
money."  Teeling  counted  out  three  hundred  and  twenty-five  dollars 
on  the  table  in  front  of  the  defendant,  who  counted  it,  took  it  from  the 
table,  and  requested  Bent  to  go  into  the  next  room.  He  then  gave 
Bent  one  hundred  and  twenty-five  dollars  of  the  money,  returned  to 
Teeling,  gave  him  a  receipt  for  ten  dollars  and  kept  the  rest  of  the 
money.  The  court  instructed  the  jury  "  that  upon  the  evidence  they 
might  find  the  defendant  guilty  of  larceny  if  they  were  satisfied  that  he 
had  obtained  the  money  of  said  Teeling  l)y  false  premeditated  trick  or 
device  ;  that  although  Teeling  might  have  given  the  manual  custody  of 
the  money  to  the  defendant,  nevertheless  the  legal  possession  would 
remain  in  Teeling  under  such  circumstances,  and  the  larceu}'  would  be 
complete  when  the  defendant,  after  thus  getting  possession  of  Teeling's 
money  and  inducing  him  to  count  out  one  hundred  and  ninety  dollars 
more  than  was  needed,  appropriated  it  to  his  own  use." 

When  the  defendant  took  up  the  money  from  the  table  it  had  not  yet 
passed  under  the  dominion  of  Bent,  who  represented  the  opposite  part}-. 
The  defendant  did  not  receive  it  as  representing  the  opposite  party ; 
he  purported  to  be  acting  in  the  interest  of  Teeling.     The  jury  would 

1  Ace.  Eeg.  V.  Johnson,  5  Cox  C.  C.  372  ;  Levy  v.  State,  79  Ala.  259  ;  State  v.  Fenn, 
41  Conn.  590  ;  Huber  v.  State,  57  Ind.  341 ;  State  v.  Anderson,  25  Minn.  66.  See  State 
V.  Watson,  41  N.  H.  5.33. —  Ed. 


SECT.  II.]  COMMONWEALTH    V.   LANNAN.  739 

have  been  warranted  in  finding  that  Teeling  impliedly  authorized  the 
defendant  to  take  up  the  money  from  the  table,  but  they  only  could 
have  found  that  he  allowed  him  to  do  so  for  the  purpose  of  immediately 
transferring  the  identical  bills,  or  all  but  ten  dollars  of  them,  to  Bent 
under  Teeling's  eyes.  Subject  to  a  single  consideration,  to  be  men- 
tioned later,  there  is  no  doubt  that  in  thus  receiving  the  money  for  a 
moment  the  defendant  purported  at  most  to  act  as  Teeling's  servant, 
or  hand,  under  his  immediate  direction  and  control.  Therefore  not 
only  the  title  to  the  money,  but  the  possession  of  it,  remained  in  Teel- 
ing while  the  money  was  in  the  defendant's  custody.  Commonwealth 
V.  O'Malle}-,  97  Mass.  584.  If  the  defendant  had  misappropriated  the 
whole  sum,  or  if  he  misappropriated  all  that  was  left  after  payino- 
Bent,  the  offence  would  be  larceny.  Commonwealth  v.  Berry,  99  Mass. 
428;  Regina  v.  Cooke,  L.  R,  1  C.  C.  295;  s.  c.  12  Cox  C.  C.  10; 
Regina  v.  Thompson,  Leigh  &  Cave,  225,  230;  2  East  P.  C.  c.  16, 
§§  110,  115.  See  further  Commonwealth  v.  Donahue,  148  Mass.  529, 
530,  and  cases  cited. 

The  instructions  made  the  defendant's  liability  conditional  upon  his 
having  obtained  the  money  from  Teeling  by  a  premeditated  trick  or 
device.  If  he  did  so,  and  appropriated  all  that  was  left  after  paying 
Bent,  he  was  guilty  of  larceny,  irrespective  of  the  question  whether 
Teeling  retained  possession,  according  to  the  dicta  in  Commonwealth  v. 
Barry,  124  Mass.  325,  327,  under  the  generally  accepted  doctrine  that 
if  a  part}'  fraudulently'  obtains  possession  of  goods  from  the  owner 
with  intent  at  the  time  to  convert  them  to  his  own  use,  and  the 
owner  does  not  part  with  the  title,  the  offence  is  larceny.  Even  if  the 
possession  had  passed  to  the  defendant,  there  can  be  no  question  that 
the  title  remained  in  Teeling  until  the  money  should  be  handed  to  Bent. 
See  note  to  Regina  v.  Thompson,  Leigh  &  Cave,  225,  230. 

In  this  case,  however,  by  the  terms  of  his  agreement  with  Teeling, 
the  defendant  had  the  right  to  retain  ten  dollars  out  of  the  moneys  in 
his  hands,  and  it  may  be  argued  that  it  is  impossible  to  particularize 
the  bills  which  were  stolen,  seeing  that  the  defendant  appropriated  bills 
to  the  amount  of  one  hundred  and  ninety-five  dollars  all  at  once,  with- 
out distinguishing  between  the  ten  he  had  a  right  to  select  and  the  one 
hundred  and  eighty-five  to  which  he  had  no  right.  This  argument 
appears  to  have  troubled  some  of  the  English  judges  in  one  case, 
although  the}'  avoided  resting  their  decision  on  that  ground.  Regina 
V.  Thompson,  Leigh  &  Cave,  233,  236,  238.  If  the  argument  be  sound, 
it  might  cause  a  failure  of  justice  by  the  merest  technicality.  For  it 
easily  might  happen  that  there  was  no  false  pretence  in  the  case,  and 
that  a  man  who  had  appropriated  a  large  fund,  some  small  part  of 
which  he  had  a  right  to  take,  would  escape  unless  he  could  be  held 
guilty  of  larcen}-.  We  think  the  answer  to  the  argument  is  this.  All 
the  bills  belonged  to  Teeling  until  the  defendant  exercised  his  right  to 
appropriate  ten  dollars  of  them  to  his  claim.  He  could  make  an  appro- 
priation only  by  selecting  specific  bills  to  that  amount.     He  had  no 


740  KEPORTER'S   note.  [chap.  XII. 

property  in  the  whole  mass  while  undivided.  If  he  appropriated  the 
bills  as  a  whole,  he  stole  the  whole,  and  the  fact  that  he  might  have 
taken  ten  dollars  does  not  help  him,  because  he  did  not  take  any  ten 
dollars  by  that  title,  or  in  the  only  way  in  which  he  had  a  right  to  take 
it.  The  later  English  cases  seem  to  admit  that  a  man  may  be  liable  for 
the  larceny  of  a  sovereign  given  him  in  payment  of  a  debt  for  a  less 
amount  in  expectation  of  receiving  change,  as  well  as  in  cases  like 
Commonwealth  v.  Berry,  ubi  siq)ra,  where  there  is  nothing  due  the 
defendant;  Regina  v.  Gumble,  L.  R.  2  C.  C.  1  ;  s.  c.  12  Cox  C.  C. 
248  ;  Regina  v.  Bird,  12  Cox  C.  C.  257,  260.  See  further  Hildebrand 
V.  People,  56  N.  Y.  394. 

Although  the  point  is  immaterial  to  the  second  ground  of  hability 
which  we°have  mentioned,  we  may  add  that  we  are  not  disposed  to 
think  tliat  the  fact  that  the  defendant  may  have  been  expected  to 
select  ten  dollars  for  himself  during  the  moment  that  the  bills  were  in 
his  hands  was  sufficient  to  convert  his  custody  into  possession.  That 
right  on  his  part  was  merely  incidental  to  a  different  governing  object, 
and  it  would  be  importing  into  a  very  simple  transaction  a  complexity 
which  does  not  belong  there  to  interpret  it  as  meaning  that  the  defen- 
dant held  the  bills  on  his  own  behalf  with  a  lien  upon  them  until  he 
could  withdraw  his  pay. 

It  is  not  argued  that  the  averment  as  to  promissory  notes  is  not 
sustained.     Commonwealth  v.  Jenks,  138  Mass.  484,  488. 

Exceptions  overruled. 


REPORTER'S  NOTE. 
Common  Pleas.     1487. 

[Reported  Year  Book  3  Hen.  VII.,  12,  pi  9.] 

HussEY  put  a  question.  If  a  shepherd  steals  the  sheep  which  are 
in  his  charge,  or  a  butler  the  pieces  which  arc  in  his  charge,  or  servants 
other  things  which  are  in  their  charge,  whether  it  shall  be  called  felony. 
And  it  seemed  to  him  that  it  would.  And  he  cited  a  case  which  was, 
that  a  butler  had  stolen  certain  stuff  which  was  in  his  charge,  and  was 
hanged  for  it.  Haugh  [J.]  cited  the  case  of  Adajn  Goldsmith  of 
London,  who  had  stolen  certain  stuff  which  was  in  his  charge,  and  was 
hanged  for  it.  Brian  [C.  J.]  —  It  cannot  be  felony,  because  he  could 
not  take  vi  &  armis,  because  he  had  charge  of  it.  And  the  justices 
were  of  the  same  opinion,  and  so  no  discussion,  etc.  R.  see  M.  13  E. 
4  f.  3,  P.  13  E.  4  f.  9,  T.  22  E.  3  Corofi  256,  what  shall  be  called  felony 
of  goods. 


SECT.  II.]  kepokter's  kote.  741 


REPORTER'S  NOTE. 

King's  Bench.     1506. 

[Reported  Year  Book  21  Hen.  VII.,  14,  pi  21.] 

In  the  King's  Bench  Cutler,  Serjeant,  and  Pigot,  apprentice,  were 
at  the  bar ;  and  Pigot  put  this  question  to  Cutler :  If  I  deliver  a  bag 
of  money  to  my  servant  to  keep,  and  he  flees  and  goes  away  from  me 
with  the  bag,  is  it  felony  ?  Cutler  said  yes  ;  for  so  long  as  he  is  in  my 
house,  or  with  me,  whatever  I  have  delivered  to  him  is  adjudged  in  my 
possession.  As  my  butler  who  has  my  plate  in  charge,  if  he  flees  with 
it,  it  is  felony ;  the  same  law  if  he  who  keeps  my  horse  goes  away  with 
it ;  and  the  case  is,  that  they  are  at  all  times  in  mj-  possession.  But 
if  I  deliver  a  horse  to  my  servant  to  ride  on  a  journey,  and  he  flees 
with  it,  it  is  not  felony,  for  he  comes  lawfully  by  the  horse  by  deliveiy. 
And  so  it  is,  if  I  give  him  a  bag  to  carry  to  London,  or  to  pay  to  some 
one,  or  to  buy  something,  and  he  flees  with  it,  it  is  not  felony ;  for  it 
is  out  of  m}-  possession,  and  he  comes  lawfully  by  it.  Pigot.  —  It 
ma}'  well  be,  for  the  master  in  all  these  cases  has  a  good  action  against 
him,  sc.  detinue,  or  action  of  account. 


REPORTER'S  NOTE. 
Common  Pleas.     1533. 

[Reported  Dyer,  5  a.] 

YoRKE  puts  this  question  upon  the  statute  21  H.  VIII.  [c.  7.],  which 
is  "  that  if  an}'  master  or  mistress  deliver  an}'  goods  to  his  servant  to 
keep,  who  withdraws  himself,  and  goes  away  with  the  goods  to  the 
intent  to  steal  them,  or  if  he  embezzle  the  goods  of  his  master,  or 
convert  them  to  his  own  use,  if  the  goods  be  worth  forty  shillings,  it 
shall  be  felony."  ^  And  a  man  delivers  a  bond  to  his  servant  to  receive 
£20  of  the  obligor,  and  the  servant  receives  them,  and  after  that  goes 
away,  or  converts  them  to  his  own  use,  whether  this  be  within  the  mean- 
ing of  the  statute  or  not  ?  And  by  the  better  opinion  it  is  not,  for  he 
did  not  deliver  to  him  any  goods  ;  for  a  bond  is  not  a  thing  in  value,  but 
a  chose  in  action.  And  Englefielde,  J.,  said  that  if  a  man  deliver  to 
his  apprentice  wares  or  merchandises  to  sell  at  a  market  or  fair,  and  he 

^  The  preamble  to  this  act  concludes, "  which  misbehavior  so  done  was  doubtful  in  the 
common  law  whether  it  were  felony  or  uo.t,  and  by  reason  thereof  the  foresaid 
servants  have  been  in  great  boldness  to  commit  such  or  like  offences."  By  Sect.  2 
it  is  provided  that  the  act  shall  not  apply  to  an  apprentice,  or  to  a  servant  under 
the  age  of  eighteen.  —  Ed. 


742 


bazeley's  case.  [chap,  xil 


sell  them,  and  receive  money  for  them,  and  go  away,  that  is  not  within 
the  statute  ;  for  he  had  not  it  by  the  delivery  of  his  master,  nor  goes 
off  with  the  things  dehvered  to  him.  qucere.  For  the  money  was  not 
delivered  to  the  servant  by  the  hands  of  his  master,  but  of  the  obligor. 
But  if  one  of  my  servants  deliver  to  another  of  my  servants  my  goods, 
and  he  o-q  off  with  them,  that  is  felony  ;  for  it  shall  be  said  my  delivery. 
And  Fi?zHERBEET,  J.,  Said  that  in  the  case  of  a  bond,  by  gift  of  omnia 
bona  et  catalla,  bonds  pass.^ 


BAZELEY'S  CASE. 
Crown  Case  Reserved.     1799. 

[Reported  Leach,  Mh  ed.  835.] 

At  the  old  Bailey  in  February  Session,  1799,  Joseph  Bazeley  was 
tried  before  John  Silvester,  Esq.,  Common  Serjeant  of  the  city  of  Lon-  1 

don,  for  feloniously  stealing  on  the  18th  January  preceding,  a  bank-note  I 

of  the  value  of  one  hundred  pounds,  the  property  of  Peter  Esdaile,  ■ 

Sir  Benjamin  Hammett,  William  Esdaile,  and  John  Hamraett. 

The  following  facts  appeared  in  evidence:  The  prisoner,  Joseph 
Bazeley,  was  the  principal  teller  at  the  house  of  Messrs.  Esdaile's  and 
Hammett's,  bankers,  in  Lombard  Street,  at  the  salary  of  £100  a  year, 
and  his  duty  was  to  receive  and  pay  money,  notes,  and  bills,  at  the 
counter.  The  manner  of  conducting  the  business  of  this  banking- 
house  is  as  follows  :  There  are  four  tellers,  each  of  whom  has  a  separate 
money  book,  a  separate  money-drawer,  and  a  separate  bag.  The 
prisoner  being  the  chief  teller,  the  total  of  the  receipts  and  payments 
of  all  the  other  money-books  were  every  evening  copied  into  his,  and 
the  total  balance,  or  rest,  as  it  is  technically  called,  struck  in  his  book 
and  the  balances  of  the  other  money-books  paid,  by  the  other  tellers, 
over  to  him.  When  any  moneys,  whether  in  cash  or  notes,  are  brought 
by  customers  to  the  counter  to  be  paid  in,  the  teller  who  receives  it 
counts  it  over,  then  enters  the  bank-notes  or  drafts,  and  afterwards  the 
cash,  under  the  customer's  name,  in  his  book ;  and  then,  after  casting 
up  the  total,  it  is  entered  in  the  customer's  book.  The  money  is  then 
put  into  the  teller's  bag,  and  the  bank-notes  or  other  papers,  if  any, 
put  into  a  box  which  stands  on  a  desk  behind  the  counter,  directly 
before  another  clerk,  who  is  called  the  cash  book-keeper,  who  makes 
an  entry  of  it  in  the  received  cash-book  in  the  name  of  the  person  who 
has  paid  it  in,  and  which  he  finds  written  by  the  receiving  teller  on  the 
back  of  the  bill  or  note  so  placed  in  the  drawer.  The  prisoner  was 
treasurer  to  an  association  called  "The  Ding  Dong  Mining  Company  ;" 
and  in  the  course  of  the  year  had  many  bills  drawn  on  him  by  the  com- 

1  But  see,  contra,  on  this  last  point,  Calye's  case,  8  Co.  33.  —  Ed. 


SECT.  II.]  BAZELEY'S   CASE.  743 

pany,  and  many  bills  drawn  on  other  persons  remitted  to  him  b}'  the 
company.  In  the  month  of  Januar}-,  1799,  the  prisoner  had  accepted 
bills  on  account  of  the  company,  to  the  amount  of  £112  4s.  Id.  and 
had  in  his  possession  a  bill  of  £166  7s.  3(7.  belonging  to  the  company, 
but  which  was  not  due  until  the  9th  P"'ebruar\'.  One  of  the  bills,  amount- 
ing to  £100,  which  the  prisoner  had  accepted  became  due  on  the  18th 
Jaimar}'.  Mr.  William  Gilbert,  a  grocer  in  the  Surr\'-road,  Black- 
friars,  kept  his  cash  at  the  banking-house  of  the  prosecutors,  and  on  the 
18th  January,  1799,  he  sent  his  servant,  George  Cock,  to  pay  in  £137. 
This  sum  consisted  of  £122  in  bank-notes,  and  the  rest  in  cash.  One 
of  these  bank-notes  was  the  note  which  the  prisoner  was  indicted  for 
stealing.  The  prisoner  received  this  mone}-  from  George  Cock,  and 
after  entering  the  £137  in  Mr.  Gilbert's  bank-book,  entered  the  £15 
cash  in  his  own  money-book,  and  put  over  the  £22  in  bank-notes  into 
the  drawer  behind  him,  keeping  back  the  £100  bank-note,  which  he  put 
into  his  pocket,  and  afterwards  paid  to  a  banker's  clerk  the  same  day 
at  a  clearing-house  in  Lombard  Street,  in  discharge  of  the  £100  bill 
which  he  had  accepted  on  account  of  the  Ding  Dong  Mining  Compan}-. 
To  make  the  sum  in  Mr.  Gilbert's  bank-book,  and  the  sum  in  the  book 
of  the  banking-house  agree,  it  appeared  that  a  unit  had  been  added  to 
the  entr}'  of  £37  to  the  credit  of  Mr.  Gilbert,  in  the  book  of  the  bank- 
ing-house, but  it  did  not  appear  by  an}-  direct  proof  that  this  alteration 
had  been  made  by  the  prisoner ;  it  appeared,  however,  that  he  had  made 
a  confession,  but  the  confession  having  been  obtained  under  a  promise 
of  favor,  it  was  not  given  in  evidence. 

Const  and  Jackson,  the  prisoner's  counsel,  submitted  to  the  court 
that  to  constitute  a  larceny,  it  was  necessary,  in  point  of  law,  that  the 
property  should  be  taken  from  the  possession  of  the  prosecutor,  but 
that  it  was  clear  from  the  evidence  in  this  case  that  the  bank-note 
charged  to  have  been  stolen  never  was  either  in  the  actual  or  the 
constructive  possession  of  Esdaile  and  Hammett,  and  that  even  if  it 
had  been  in  their  possession,  yet  that  from  the  manner  in  which  it  had 
been  secreted  by  the  prisoner,  it  amounted  only  to  a  breach  of  trust. 

The  court  left  the  facts  of  the  case  to  the  consideration  of  the  jur}-, 
and  on  their  finding  the  prisoner  guilty,  the  case  was  reserved  for  the 
opinion  of  the  twelve  judges  on  a  question  whether,  under  the  circum- 
stances above  stated,  the  taking  of  the  bank-note  was  in  law  a  felonious 
taking,  or  only  a  fraudulent  breach  of  trust. 

The  case  was  accordingl}'  argued  before  nine  of  the  judges  in  the 
Exchequer  Chamber,  on  Saturday,  27th  April,  1799,  by  Const  for  the 
prisoner,  and  by  Fielding  for  the  Crown. 

Const,  for  the  prisoner,  after  remarking  that  the  prosecutor  never  had 
actual  possession  of  the  bank-note,  and  defining  the  several  offences  of 
larcen}',  fraud,  and  breach  of  trust,  viz.,  that  larceny  is  the  taking  of 
valuable  property'  from  the  possession  of  another  without  his  consent 
and  against  his  will ;  secondl}-,  that  fraud  consists  in  obtaining  valua- 
ble property  from  the  possession  of  another  with  his  consent  and   will, 


744  bazeley's  case.  [chap.  xii. 

b3'  means  of  some  artful  device,  against  the  subtilty  of  which  common 
prudence  and  caution  are  not  sufficient  safeguards ;  and,  thirdi}-,  that 
breach  of  trust  is  the  abuse  or  misusing  of  that  property  which  the 
owner  has,  without  any  fraudulent  seducement,  and  with  his  own  free 
will  and  consent,  put,  or  permitted  to  be  put,  either  for  particular  or 
general  purposes,  into  the  possession  of  the  trustee,  —  proceeded  to 
argue  the  case  upon  the  following  points  :  — 

First,  Tliat  the  prosecutors  cannot,  in  contemplation  of  law,  be  said 
to  have  had  a  constructive  possession  of  this  bank-note,  at  the  time 
the  prisoner  is  charged  with  having  tortiously  converted  it  to  his  own 
use. 

Secondly,  That,  supposing  the  prosecutors  to  have  had  the  possession 
of  this  note,  the  prisoner,  under  the  circumstances  of  this  case,  cannot 
be  said  to  have  tortiously  taken  it  from  that  possession  with  a  felonious 
intention  to  steal  it. 

Thirdly,  That  the  relative  situation  of  the  prosecutors  and  the  pris- 
oner makes  this  transaction  merely  a  breach  of  trust ;  and, 

Fourthly,  That  this  is  not  one  of  those  breaches  of  trust  which  the 
Legislature  has  declared  to  be  felony. 

Tlie  first  point,  viz.,  that  the  prosecutor  cannot,  in  contempla- 
tion of  law,  be  said  to  have  had  a  constructive  possession  of  this 
bank-note  at  the  time  the  prisoner  is  charged  with  having  tortiously 
converted  it  to  his  own  use.  To  constitute  the  crime  of  larceny, 
the  property  must  be  taken  from  the  possession  of  the  owner;  this 
possession  must  be  either  actual  or  constructive.  It  is  clear  that  the 
prosecutors  had  not,  upon  the  present  occasion,  the  actual  possession 
of  the  bank-note,  and  therefore  the  inquiry  must  be,  whether  they  had 
the  constructive  possession  of  it ;  or,  in  other  words,  whether  the  pos- 
session of  the  servant  was,  under  the  circumstances  of  this  case,  the 
possession  of  the  master.  Property  in  possession  is  said  by  Sir  AVilliam 
Blackstone  to  subsist  only  where  a  man  hath  both  the  right  to,  and 
also  the  occupation  of,  the  property.  The  prosecutors  in  the  present 
case  had  only  a  right  or  title  to  possess  the  note,  and  not  the  absolute 
or  even  qualified  possession  of  it.  It  was  never  in  their  custody  or 
under  their  control.  There  is  no  difference  whatever  as  to  the  question 
of  possession  between  real  and  personal  property  ;  and  if,  after  the 
death  of  an  ancestor,  and  before  the  entry  of  his  heir  upon  the  descend- 
ing estate,  or  if,  after  the  death  of  a  particular  tenant,  and  before  the 
entry  of  the  remainder-man,  or  reversioner,  a  stranger  should  take  pos- 
sesion of  the  vacant  land,  the  heir  in  the  one  case,  and  the  remainder- 
man or  reversioner  in  the  other,  would  be  like  the  prosecutor  in  the 
present  case,  only  entitled  to,  but  not  possessed  of,  the  estate ;  and 
each  of  them  must  recover  possession  of  it  by  the  respective  remedies 
which  the  law  has  in  such  cases  made  and  provided.  Suppose  the  pris- 
oner had  not  parted  with  the  note,  but  had  merelj^  kept  it  in  his  own 
custody,  and  refused  on  any  pretence  whatever  to  deliver  it  over  to  his 
employers,  they  could  only  have  recovered  it  by  means  of  an  action  of 


SECT.  II.]  BAZELEY'S  CASE.  745 

trover  or  detinue,  the  first  of  which  presupposes  the  person  against 
whom  it  is  brought  to  have  obtained  possession  of  the  property  b}' 
lawful  means,  as  by  delivery  or  finding ;  and  the  second,  that  the  right 
of  property  only,  and  not  the  possession  of  it,  either  really  or  con- 
structively, is  in  the  person  bringing  it.  The  prisoner  received  this 
note  by  the  permission  and  consent  of  the  prosecutors,  while  it  was 
passing  fi'om  the  possession  of  Mr.  Gilbert  to  the  possession  of  Messrs. 
Esdaile's  and  Hammett's  ;  and  not  having  reached  its  destined  goal,  but 
having  been  thus  intercepted  in  its  transitor}'  state,  it  is  clear  that  it 
never  came  to  the  possession  of  the  prosecutors.  It  was  delivered  into 
the  possession  of  the  prisoner,  upon  an  implied  confidence  on  the  part  of 
the  prosecutors  that  he  would  deliver  it  over  into  their  possession,  but 
which,  from  the  pressure  of  temporary  circumstances,  he  neglected  to  do. 
At  the  time,  therefore,  of  the  supposed  conversion  of  this  note,  it  was  in 
the  legal  possession  of  the  prisoner.  To  divest  the  prisoner  of  this  pos- 
session, it  certainly  was  not  necessar}'  that  he  should  have  delivered  this 
note  into  the  hands  of  the  prosecutors,  or  of  any  other  of  their  servants 
pei'sonally  ;  for  if  he  had  deposited  it  in  the  drawer  kept  for  the  recep- 
tion of  this  species  of  property,  it  would  have  been  a  delivery  of  it 
into  the  possession  of  his  masters ;  but  he  made  no  such  deposit,  and 
instead  of  determining  in  any  way  his  own  possession  of  it,  he  con- 
veyed it  immediately  from  the  hand  of  Mr.  Gilbert's  clerk  into  his  own 
pocket.  Authorities  are  not  wanting  to  support  this  position.  In  the 
Year-book,  7  Hen.  6  fol.  43,  it  is  said,  "  If  a  man  deliver  goods  to 
another  to  keep,  or  lend  goods  to  another,  the  deliverer  or  lender  may 
commit  felony  of  them  himself,  for  he  hath  but  Jus  j^roprietatis  ;  the 
Jus  possessionis  being  with  the  bailee  ;  "  and  permitting  one  man  to 
receive  goods  to  the  use  of  another,  who  never  had  any  possession  of 
them,  is  a  stronger  case.  So  long  ago  as  the  year  1687,  the  following 
ease  was  solemnl}'  determined  in  the  Court  of  King's  Bench  on  a  special 
verdict:  The  prisoner  had  been  a  servant,  or  journeyman,  to  one  John 
Fuller,  and  was  employed  to  sell  goods  and  receive  money  for  his 
master's  use  ;  in  the  course  of  his  trade  he  sold  a  large  parcel  of  goods  ; 
received  one  hundred  and  sixty  guineas  for  them  from  the  purchaser ; 
deposited  ten  of  them  in  a  private  place  in  the  chamber  where  he  slept ; 
and,  on  his  being  discharged  from  his  service,  took  away  with  him  the 
remaining  one  hundred  and  fifty  guineas  ;  but  he  had  not  put  any  of 
the  money  into  his  master's  till,  or  in  any  way  given  it  into  his  possess- 
sion.  Before  this  embezzlement  was  discovered  he  suddenly  decamped 
from  his  master's  service,  leaving  his  trunk,  containing  some  of  his 
clothes  and  the  ten  guineas  so  secreted  behind  him ;  but  lie  afterwards, 
in  the  night-time,  broke  open  his  master's  house,  and  took  away  with 
him  the  ten  guineas  which  he  had  hid  privatel}'  in  his  bed-chamber ; 
and  this  was  held  to  be  no  burglary,  because  the  taking  of  the  money 
was  no  felony :  for  although  it  was  the  master's  money  in  right,  it  was 
the  servant's  money  in  possession,  and  the  first  original  act  no  felon}-. 
This  case  was  cited  by  Sir  B.  Shower,  in  his  argument  in  the  case  of 


746  bazeley's  case.  [chap.  xii. 

Rex  V.  Meers,  and  is  said  to  be  reported  by  Gouldsborough,  186  ;  but 
I  have  been  favored  with  a  manuscript  report  of  it,  extracted  from  a 
collection  of  cases  in  the  possession  of  the  late  Mr.  Reynolds,  Clerk  of 
the  Arraigns,  at  the  Old  Bailey,  under  the  title  of  Rex  v.  Dingley,  by 
which  it  appears  that  the  special  verdict  was  found  at  the  Easter 
Session,  1687,  and  argued  in  the  King's  Bench  in  Hilary  Term,  3  Jac. 
II.,  and  in  which  it  is  said  to  have  been  determined  that  this  offence 
was  not  burglar}-,  but  trespass  only.  The  law  of  this  ease  has  been 
recently  confirmed  by '  the  case  of  the  King  v.  Bull.  The  prisoner, 
Thomas  Bull,  was  tried  at  the  Old  Bailey,  January  Session,  1797, 
before  Mr.  Justice  Heath,  on  an  indictment  charging  him  with  having 
stolen,  on  the  7th  of  the  same  month,  a  half-crown  and  three  shillings, 
the  property  of  William  Tilt,  who  was  a  confectioner,  in  Cheapside, 
with  whom  the  prisoner  lived  as  a  journeyman  ;  and  Mr.  Tilt  having 
had,  for  some  time  before,  strong  suspicion  that  the  prisoner  had  robbed 
him,  adopted  the  following  method  for  the  purpose  of  detecting  him : 
On  the  7th  January,  the  day  laid  in  the  indictment,  he  left  only  four  six- 
pences in  the  till ;  and  taking  two  half-crowns,  thirteen  shillings,  and 
two  sixpences,  went  to  the  house  of  Mr.  Garner,  a  watchmaker,  who 
marked  the  two  half-crowns,  several  of  the  shillings,  and  the  sixpences, 
with  a  tool  used  in  his  line  of  business,  that  impressed  a  figure  some- 
thing like  a  half-moon.  Mr.  Tilt,  having  got  the  money  thus  marked, 
went  with  it  to  the  house  of  a  Mrs.  Hill ;  and  giving  a  half-crown  and 
three  of  the  shillings  to  Ann  Wilson,  one  of  her  servants,  and  five  of 
the  shillings  and  the  other  sixpence  to  Mary  Bushman,  another  of  her 
servants,  desired  them  to  proceed  to  his  house,  and  purchase  some  of 
his  goods  of  the  prisoner,  whom  he  had  left  in  care  of  the  shop.  The 
two  women  went  accordingly-  to  Mr.  Tilt's  shop,  where  Ann  Wilson 
I^urchased  confectionary  of  the  prisoner  to  the  amount  of  five  shillings 
and  three-pence,  gave  him  the  half-crown  and  three  shillings,  and  re- 
ceived three-pence  in  change ;  and  Mary  Bushman  purchased  of  him 
articles  to  the  amount  of  four  shillings  and  sixpence,  for  which  she  paid 
him  out  of  the  moneys  she  had  so  received,  and  returned  the  other  shilling 
to  her  mistress,  Mary  Hill :  but  neither  of  these  women  observed  v,  hether 
the  prisoner  put  either  the  whole  or  any  part  of  the  money  into  the  till 
or  into  his  pocket.  While  the  women,  however,  were  purchasing  these 
things  Mr.  Tilt  and  Mr.  Garner  were  waiting,  with  a  constable,  at  a 
convenient  distance,  on  the  outside  of  the  shop-door ;  and  when  they 
observed  the  women  come  out,  they  went  immediately  into  the  shop, 
where,  on  examining  the  prisoner's  pockets,  they  found  among  the 
silver  coin,  amounting  to  fifty-three  shillings,  which  he  had  in  his  waist- 
coat pocket,  the  marked  half-crowns,  and  three  of  the  marked  shillings, 
which  had  been  given  to  Wilson  and  Bushman  ;  only  seven  shillings 
and  sixpence  were  found  in  the  till ;  and  it  appeared  that  Mrs.  Tilt  had 
taken  one  shilling  in  the  shop  and  put  it  into  the  till  during  her  hus- 
band's absence  ;  so  that  the  two  shillings  which  had  been  left  therein 
in  the  morning,  the  one  shilling  which  Mrs.  Tilt  had  put  into  it,  the 


SECT.  II.]  BAZELEY'S   CASE.  747 

four  shillings  and  sixpence  laid  out  by  Mary  Bushman,  and  the  five 
shillings  and  sixpence  marked  money  which  was  found  in  the  prisoner's 
pocket,  made  up  the  sum  which  ought  to  have  been  put  into  tlie  till.  The 
prisoner  upon  this  evidence  was  found  guilt}',  and  received  sentence  of 
transportation  ;  but  a  case  was  reserved  for  the  opinion  of  the  twelve 
judges,  Whether,  as  Mr.  Tilt  had  divested  himself  of  this  money  by 
giving  it  to  Mar}'  Hill,  who  had  given  it  to  her  servants  in  the  manner 
and  for  the  purpose  above  described,  and  as  it  did  not  appear  that  the 
prisoner  had  on  receiving  it  from  them,  jDut  it  into  the  till,  or  done  any- 
thing with  it  that  could  be  construed  a  restoring  of  it  to  the  possession 
of  his  master,  the  converting  of  it  to  his  own  use  b}-  putting  it  into  his 
pocket  could  amount  to  the  crime  of  larceny,  it  being  essential  to  the 
commission  of  that  offence  that  the  goods  should  be  taken  from  the  pos- 
session of  the  owner ;  and,  although  no  opinion  was  ever  publicly 
delivered  upon  this  case,  the  prisoner  was  discharged.  After  these  de- 
terminations, it  cannot  be  contended  that  the  possession  of  the  servant 
is  the  possession  of  the  master ;  for,  independently  of  these  authorities, 
the  rule  that  the  possession  of  the  servant  is  the  possession  of  the 
master  cannot  be  extended  to  a  case  in  which  the  property  never  was 
in  the  master's  possession,  however  it  may  be  so  construed  in  cases 
where  the  identical  thing  stolen  is  delivered  by  the  master,  or  where  the 
question  is  between  the  master  and  a  third  person.  "  If,"  says  Sir  Mat- 
thew Hale,  "I  dehver  m}-  servant  a  bond  to  receive  money,  or  deliver 
goods  to  him  to  sell,  and  he  receives  the  money  upon  the  bond  or 
goods  and  go  away  with  it,  this  is  not  felony  ;  for  though  the  bond 
or  goods  were  delivered  to  him  by  the  master,  3'et  the  money  was  not 
delivered  to  him  by  the  master."  But  he  admits,  that  "  if  taken  away 
from  the  servant  by  a  trespasser,  the  master  may  have  a  general  action 
of  trespass;"  which  shows  that  the  law,  in  a  criminal  case,  will  not, 
under  such  circumstances,  consider  the  master  to  have  a  constructive 
possession  of  the  property.  Such  a  possession  arises  by  mere  impli- 
cation of  law ;  and  it  is  an  established  rule  that  no  man's  life  shall  be 
endangered  by  any  intendment  or  implication  whatsoever.^ 

The  judges,  it  is  said,  were  of  opinion  upon  the  authority  of  Rex 
V.  Waite,  that  this  bank-note  never  was  in  the  legal  custody  or  pos- 
session of  the  prosecutors,  Messrs.  Esdaile  and  Hammett ;  but  no 
opinion  was  ever  publicly  delivered  ;  and  the  prisoner  was  included  in 
the  Secretary  of  State's  letter  as  a  proper  object  for  a  pardon.^ 

1  The  argument  for  the  prisoner  upon  the  other  points,  and  that  for  the  Crown 
are  omitted. 

2  On  consultation  among  tlie  judges,  some  doubt  was  at  first  entertained ;  but  at 
last  all  assembled  agreed  that  it  was  not  felony,  inasmuch  as  the  note  was  never  m  the 
possession  of  the  bankers,  distinct  from  the  possession  of  the  prisoner :  though  it  would 
have  been  otherwise  if  tlie  prisoner  had  deposited  it  in  the  drawer,  and  had  afterwards 
taken  it.  ( Virfe  Chipchase's  case,  Leach,  699.)  And  they  thought  that  this  was  not 
to  he  differed  from  the  cases  of  Rex  v.  Waite,  Leach,  28,  and  Rex  r.Bull,  Leach,  841, 
which  turned  on  this  consideration,  that  the  thing  was  not  taken  by  the  prisoner  out 
of  the  possession  of  the  owner ;  and  here  it  was  delivered  into  the  possession  of  the 


748  KEGINA  V.  KOBINS.  fCHAP.  XII. 


REGINA  V.  ROBINS. 

Crown  Case  Reserved.     1854. 

[Reported  Dearsly  C.  C.  418.] 

The  following  case  was  reserved  for  the  opinion  of  the  Court  of 
Criraiaal  Appeal,  by  W.  H.  Bodkin,  Esq.,  sitting  for  the  Assistant 
Judge  of  the  Middlesex  Sessions. 

John  Robins  was  tried  at  the  Middlesex  Sessions,  in  September, 
1854,  upon  an  indictment  which  charged  him  with  stealing  five  quar- 
ters of  wheat,  the  property  of  his  masters,  George  Swaine  and 
another. 

The  wheat  in  question  was  not  the  property  of  the  prosecutors,  but 
part  of  a  large  quantity  consigned  to  their  care  and  deposited  at  one  of 
their  storehouses.  This  storehouse  was  in  the  care  of  Thomas  East- 
wick,  a  servant  of  the  prosecutors,  who  had  authority  to  deliver  the 
wheat  only  on  the  orders  of  the  prosecutors,  or  of  a  person  named 
Callow,  who  was  their  managing  clerk. 

It  was  proved  that  on  the  24th  of  June  the  prisoner,  who  was  a  ser- 
vant of  the  prosecutors  at  another  storehouse,  came  to  the  storehouse 
in  question  accompanied  by  a  man  with  a  horse  and  cart,  and  obtained 
the  key  of  the  storehouse  from  Eastwick  by  representing  that  he,  the 
prisoner,  had  been  sent  b}'  the  managing  clerk  Callow  for  five  quar- 
ters of  wheat,  which  he  was  to  carry  to  the  Brighton  Railway.  East- 
wick, knowing  the  prisoner  and  believing  his  statement,  allowed  the 
wheat  to  be  removed,  the  prisoner  assisting  to  put  it  into  the  cart,  in 
which  it  was  convej'ed  from  the  prosecutors'  premises,  the  prisoner 
going  with  it.  It  was  also  proved  that  Callow  had  given  no  such  au- 
thority, the  prisoner's  statement  being  entirely  false,  and  that  the  wheat 
was  not  taken  to  the  Brigliton  Railway,  but  disposed  of,  with  the 
privity  of  the  prisoner,  by  other  parties  who  had  been  associated  with 
him  in  the  commission  of  the  offence. 

The  counsel  for  the  prisoner  contended  that  the  wheat  was  obtained 
by  false  pretences,  but  the  jury  were  directed,  if  they  believed  the 
facts,  that  the  offence  amounted  to  larceny,  and  they  found  the  pris- 
oner guilt}-  of  that  offence.  The  prisoner  was  sentenced  to  twelve 
months*  imprisonment,  and  is  now  confined  in  the  House  of  Correction 
at  Coldbath  Fields  in  execution  of  that  sentence.  I  have  to  ask  this 
Honorable  Court,  whether  the  verdict  was  right  in  point  of  law. 

This  case  was  argued  on  the  11th  of  November,  1854,  before  Jervis, 
C.  J.,  Alderson,  B.,  Coleridge,  J.,  Martin,  B.,  and  Crowder,  J. 


SECT.  II.]  KEGINA   V.   EOBINS.  749 

Metcalfe^  for  the  prisoner.  In  this  case  the  prisoner  obtained  the 
wheat  -by  means  of  a  false  pretence,  and  was  not  guilt}-  of  larcen}'. 
The  general  rule  is,  that  in  larceny  the  property  is  not  parted  with,  and 
in  false  pretences  it  is.  Here  the  prosecutor  parted  with  the  property 
in  the  wheat. 

Alderson,  B.  It  was  delivered  to  the  prisoner  for  a  special  purpose, 
namely,  to  be  taken  to  the  Brighton  Railwaj-. 

Jervis,  C.  J.  He  gets  the  key  by  a  false  pretence,  and  commits  a 
larceny  of  the  wheat. 

Metcalfe.  Eastwick  had  the  sole  charge  of  the  wheat ;  and  although 
it  was  not  delivered  to  the  prisoner  by  the  hand  of  the  master,  the 
delivery  by  Eastwick  must  be  taken  to  be  a  delivery  by  the  master. 
The  decision  in  Regina  v.  Barnes,  2  Den.  C.  C.  59,  is  in  favor  of  this 
proposition.  There  the  chief  clerk  of  the  prisoner's  master,  on  the 
production  by  the  prisoner  of  a  ticket  containing  a  statement  of  a  pur- 
chase which,  if  it  had  been  made,  would  have  entitled  the  prisoner  to 
receive  25.  3c?.,  but  which  purchase  had  not  in  fact  been  made,  paid 
the  prisoner  the  2s.  3d.,  and  it  was  held  that  the  prisoner  was  not  in- 
dictable for  larceny,  but  for  obtaining  money  under  false  pretences. 

Alderson,  B.  That  is  simply  the  case  of  one  servant  being  induced 
to  give  the  property  of  the  master  to  another  servant  by  means  of  a 
false  pretence  ;  but  here  the  property  remained  in  Swainc  throughout 
as  bailee.  Suppose  the  prisoner  had  been  really  sent  by  Callow  and 
had  not  been  guilty  of  any  fraud,  but  on  his  way  to  the  railway  had 
been  robbed  of  the  wheat,  could  not  the  wheat  have  been  laid  in 
Swaine? 

Metcalfe.  Swaine  was  the  bailee  of  the  consignor ;  he  had  only  a 
special  propert}',  and  that  special  propert}'  he  parted  with  to  the 
prisoner. 

Martin,  B.  For  the  purposes  of  this  case  Swaine  was  the  owner  of 
the  wheat. 

Alderson,  B.  If  the  prisoner  had  told  the  truth,  and,  having 
obtained  the  wheat  without  making  any  false  pretence,  had  subse- 
quently dealt  with  it  as  he  has  done,  he  would  without  doubt  be 
guilty  of  larceny ;  and  can  it  be  said  that  he  is  not  guilty  of  larceny 
simply  because  he  told  a  falsehood? 

Sleigh^  for  the  Crown,  was  not  called  upon. 

Conviction  affirmed.'^ 

1  Ace.  Reg.  V.  Webb,  5  Cox  C.  C.  154;  State  v.  McCartey,  17  Minn,  76.  See  Rex 
V.  Jackson,  1  Moo.  C.  C  119.  —  Ed. 


750 


KEX   V.  BASS.  [chap.  XII. 


REX  V.   BASS. 
Crown  Case  Reserved.     1782. 

[Reported  Leach,  4th  ed.,  251.] 

At  the  Old  Bailey,  in  May  Session,  1782,  William  Bass  was  convicted 
of  stealing  a  quantity  of  goods,  the  property  of  John  Gatfee. 

The  prisoner  was' servant  and  porter  in  the  general  employ  of  the 
prosecutor,  a  gauze  weaver  in  Bishopsgate  Street.  On  the  day  laid  in 
the  indictment  he  was  sent  with  a  package  of  goods  from  his  master's 
house,  with  directions  to  deliver  them  to  a  customer  at  a  particular 
place.  In  his  way  he  met  two  men,  who  invited  him  into  a  public 
house  to  drink  with  them,  and  then  persuaded  him  to  open  the  package 
and  sell  the  goods  to  a  person  whom  one  of  the  men  brought  in,  which 
he  accordingly  did,  by  taking  them  out  of  the  package  and  putting 
them  into  the  man's  bag ;  and  he  received  eight  guineas  of  the  produce 
to  his  own  use.^ 

It  was  referred  to  the  consideration  of  the  twelve  judges,  whether 
from  the  above  facts,  the   prisoner  was  guilty  of  a  felonious  taking. 

Mr.  Baron  Hotham,  in  December  Session,  1782,  delivered  it  as  the 
unanimous  opinion  of  all  the  judges,  that  the  conviction  was  proper ; 
for  the  prisoner  standing  in  the  relation  of  a  servant,  the  possession  of 
the  goods  must  be  considered  as  remaining  in  the  master  until  and 
at  the  time  of  the  unlawful  conversion  of  them  by  the  prisoner.  The 
master  was  to  receive  the  money  for  them  from  the  customer,  and  he 
could  at  any  time  have  countermanded  the  delivery  of  them.  The 
prisoner,  therefore,  by  breaking  open  the  package,  tovtiously  took  them 
from  the  possession  of  the  owner,  and  having  by  the  sale  converted 
them  animofurandi  to  his  own  use,  the  taking  is  felonious. 

Many  cases  of  this  kind  have  occurred,  and  all  of  them  have  been 
determined  to  be  felony. 

prisoner.  That  although  to  many  purposes  the  note  was  in  the  actual  possession  of 
the  masters,  yet  it  was  also  in  the  actual  possession  of  the  servant,  and  that  possession 
not  to  be  impeached ;  for  it  w*as  a  lawful  one.  Eyre,  C.  J.,  also  observed  that  the 
cases  ran  into  otre  another  very  much,  and  were  hardly  to  be  distinguished ;  that  in 
the  case  of  Rex  v.  Spears,  Leach,  825,  the  corn  was  in  the  possession  of  the  master 
under  the  care  of  the  servant :  and  Lord  Kenyon  said  that  he  relied  much  on  the  Act 
of  Parliament  respecting  the  Bank  not  going  further  than  to  protect  the  Bank.  2  East, 
C.  L.  574.  —  Rep. 

1  "  It  was  further  mentioned  as  an  additional  circumstance,  that  the  goods  were 
taken  out  of  the  package  in  which  they  had  been  delivered  to  the  prisoner,  and  put 
into  a  bag  at  the  public  house."     2  East  P.  C.  566.  —  Ed. 


SECT.  II.]  REX   V.   LAVENDER.  751 


REX  V.   WATSON. 
Crown  Case  Reserved.     1788. 

[Reported  2  East  P.  C.  562.] 

William  Watson  was  tried  on  an  indictment  containing  three  counts  : 
the  first  stating,  that  the  prisoner,  as  a  servant,  received  £3  18s.,  the 
money  of  E.  Cowper,  his  late  master,  which  was  deUvered  to  him  safelj' 
to  keep  to  the  use  of  his  said  master ;  and  that  afterwards  the  said 
prisoner  witlidre^  himself  from  his  master  with  the  money,  with  an 
intent  to  steal  the  same,  and  to  defraud  his  said  master  thereof.  The 
second  count  stated  that  the  prisoner,  having  received  the  said  money 
in  the  manner  above  stated,  and  being  with  his  mastey,  had  converted 
the  same  to  his  own  use ;  and  both  concluded  against  the  form  of  the 
statute.  The  third  count  was  for  larceny  generally.  It  appeared  that 
Cowper,  who  was  a  surrogate,  had  sent  the  prisoner,  who  was  his  ser- 
vant, to  buy  some  blank  licenses,  and  had  delivered  him  the  £3  18s. 
for  that  purpose ;  but  the  prisoner  ran  away  with  the  mone}',  and  being 
convicted,  a  question  was  reserved  for  the  opinion  of  the  judges,  whether 
the  evidence  supported  any  of  the  counts.  And  in  Easter  Term,  1 788, 
all  the  judges  but  the  Chief  Baron  held  that  this  case  was  not  within 
the  statute,  for  to  keep  means  to  keep  for  the  use  of  the  master,  and  to 
return  to  him.  As  to  the  count  for  larceny,  all  the  judges  held  this 
could  not  be  felony  at  common  law ;  for  to  make  it  felony  there  must 
be  some  act  done  by  the  prisoner,  a  fraudulent  obtaining  of  the  posses- 
sion, with  intent  to  steal. 


REX  V.   LAVENDER. 
Crown  Case  Reserved.     1793. 

[Reported  2  East  P.  C.  566.] 

John  Lavender  was  indicted  for  larceny  at  common  law  of  a  certain 
sum  of  money  belonging  to  John  Edmonds.  The  prisoner  was  a  ser- 
vant to  Edmonds,  who  had  delivered  him  the  money  in  question  to 
carry  to  the  house  of  one  Thomas  Flawn,  and  there  to  leave  the  same 
with  him,  he  having  agreed  to  give  Edmonds  bills  for  the  money  in  a 
few  days.  The  prisoner  did  not  carry  the  money  to  Flawn  as  directed, 
but  went  away  with  it,  purchased  a  watch  and  other  things  with  part, 
and  part  remained  in  his  possession  when  he  was  apprehended.  Being 
found  guilty,  sentence  was  respited  for  the  opinion  of  the  judges, 
whether  this  were  a  felony  or  a  breach  of  trust ;  and  in  Easter  Term, 
1793,  all  the  judges  held  this  was  a  felony,  and  that  the  last  point  in 
Watson's  case  above  referred  to  was  not  law.     In  Trinity  Term  follow- 


752  KEGINA   V.   TOLLETT   AND   TAYLOR.  [CHAP.  XII. 

ing  this  case  was  again  under  the  consideration  of  the  judges,  when 
they  adhered  to  their  former  opinion,  and  some  said  that  the  distinc- 
tion between  this  case  and  Watson's,  if  there  were  any,  was,  that  in 
Watson's  case  the  money  was  not  delivered  to  the  prisoner  to  be  paid 
specifically  to  any  other  person  ;  but  if  the  prisoner  had  laid  out  his 
own  money  to  the  same  amount  in  buying  licenses,  it  would  have  been 
a  compliance  with  the  order.  He  was  commissioned  to  merchandise 
with  the  money.  But  they  admitted  that  the  distinction,  if  an}',  was 
extremely  nice,  and  Buller,  J.,  thought  there  was  none,  and  recog- 
nized the  case  of  R.  v.  Paradice,  before  Gould,  J.,  as  good  law.^ 


REGINA   V.  TOLLETT  AND  TAYLOR. 
Oxford  Assizes.     184L 

[Reported  Carrington  ^  Marshman,  112.] 

Coleridge,  J.^  (in  summing  up).  There  is  no  doubt  that  the  prop- 
erty found  in  the  possession  of  the  prisoner  at  Abingdon  was  the 
property  of  the  prosecutor  Henry  Eltham,  and  that  it  was  taken  from 
his  house  on  the  night  of  Saturday,  the  31st  of  October,  and  that  it 
was  found  at  Abingdon  in  the  same  state  in  which  it  was  taken  ;  and 
it  seems  also  to  be  clear  that  neither  of  the  prisoners  was  in  possession 
of  the  keys  which  unlocked  the  boxes.  With  respect  to  the  prisoner 
ToUett,  I  think  that  the  evidence  is  insufficient  to  affect  him  as  a  prin- 
cipal. The  evidence,  as  it  affects  the  other  prisoner,  is  therefore  that 
which  you  will  principally  have  to  attend  to.  It  is  proved  by  the 
prosecutor,  that  he  and  his  wife  had  been  upon  bad  terms,  and  that 
she  had  threatened  to  leave  him  and  go  to  service  ;  and  the  wife  herself 
says  that  she  twice  met  the  prisoner  Taylor  at  Mrs.  Hayward's,  which 
she  does  not  know  to  be  a  house  of  ill  fame,  and  there  arranged  with 
the  prisoner  Taylor  that  she  should  elope  with  him,  and  that  they 
should  live  at  Gloucester  as  man  and  wife.  She  says  that  on  these 
two  occasions  she  was  with  the  prisoner  in  a  bedroom  for  half  an  hour 
each  time,  but  that  nothing  improper  passed  between  them  ;  she  also 
says  that  the  prisoner  Taylor  desired  her  to  bring  all  the  monej*  she 
could,  and  that  she  was  to  get  the  money  and  the  boxes  ready  on  the 
Saturday  night,  and  he  would  come  for  them  and  take  her  away  with 
him  also.  She  further  states  that  she  sat  up  after  her  husband  had 
gone  to  bed,  in  expectation  of  his  coming ;  that  he  did  come,  and  that 
she  took  him  into  the  room  in  which  her  husband  was  asleep,  and 
that  he  took  the  boxes  away  in  the  cart  of  the  other  prisoner,  Tollett, 
and  that  if  her  husband  had  remained  asleep  she  would  have  gone  oft 

1  Ace.  State  v.  Schingen,  20  Wis.  74.  —  Ed. 

'^  The  charge  only  is  given  ;  it  sufficiently  states  the  case. 


SECT.  II.]  REGINA  V.   TOLLETT   AND   TAYLOR.  753 

with  the  prisoner  Taylor ;  but  as  her  husband  awoke  she  was  obliged 
to  stay,  and  she  gave  information  which  led  to  the  apprehension  of  the 
prisoners  at  Abingdon.  Now,  by  law  there  is  such  a  unity  of  interest 
between  husband  and  wife,  that  ordinarily  the  wife  cannot  steal  the 
goods  of  the  husband,  nor  can  an  indifferent  person  steal  the  goods  of 
the  husband  by  the  delivery  of  them  bj'  the  wife.  If,  therefore,  the 
prisoner  Taylor  had  been  an  indifterent  person,  and  the  wife  of  the 
prosecutor  had  delivered  this  monej-  and  these  goods  to  him  to  convert 
to  his  own  use,  that  would  in  point  of  law  have  been  no  larceny.^  But 
if  the  person  to  whom  the  goods  are  delivered  by  the  wife  be  an  adul- 
terer, it  is  otherwise,  and  an  adulterer  can  be  properl}-  convicted  of 
stealing  the  husband's  goods,  though  they  be  delivered  to  him  by  the 
wife.  On  this  evidence,  it  does  not  appear  that  the  crin^inal  imrpose 
had  been  carried  into  effect ;  but  if  that  criminal  purpose  had  not  Ijeen 
completed,  and  these  goods  were  removed  b}'  the  wife  and  the  prisoner 
Taylor  with  an  intent  that  she  should  elope  with  him  and  live  in  adul- 
ter}-  with  him,  I  shall  direct  you  in  point  of  law  that  the  taking  of  them 
was  a  larceny.  Mr.  Carrington  has  said  that  if  the  wife  eloped  with 
an  adulterer,  it  would  be  no  larcen}'  in  the  adulterer  to  assist  in  carry- 
ing away  her  clothes.  I  do  not  agree  with  him,  for  I  think  that  if  she 
elopes  with  an  adulterer,  who  takes  her  clothes  with  them  it  is  larceny 
to  steal  her  clothes,  which  are  her  husband's  property,  just  as  much  as 
it  would  be  a  larceny  to  steal  her  husband's  wearing  apparel,  or  an}'- 
thing  else  that  was  his  property.  However,  the  evidence  in  this  case 
goes  further  than  that ;  for  it  is  proved  that  the  prisoner  told  her  to 
bring  with  her  all  the  mone}'  that  she  could,  and  a  sum  of  mone}-  is 
contained  in  one  of  the  boxes.  Mr.  Carrington  also  contends  that, 
except  on  the  evidence  of  the  wife,  there  is  no  proof  that  the  prisoner 
Ta3'lor  was  anything  more  than  a  friend  ;  and  if  there  was  a  larceny  in 
the  stealing  of  these  goods,  the  wife  is  an  accomplice,  and  requires  con- 
firmation. Taking  that  to  be  so,  we  find  that  she  is  confirmed  as  to  all 
the  main  facts  of  the  case  ;  and  she  certainl}'  appears  to  have  no  motive 
to  blacken  her  own  character ;  and  it  seems  reasonable,  therefore,  to 
believe  her  as  to  the  criminal  intention  on  her  part.  Mr.  Carrington 
also  says  that  the  conduct  of  the  two  prisoners  was  not  that  of  thieves, 
as  they  stayed  at  Abingdon,  where  they  were  known  ;  and  that  certainly 
ought  to  weigh  in  favor  of  the  prisoners.  It  is  also  said  that  they  did 
not  break  bulk  ;  but  I  think  that  that  does  not  amount  to  much,  because, 
if  the  scheme  was  for  the  wife  of  the  prosecutor  to  live  with  the  prisoner 
Taylor  at  Gloucester,  there  would  be  no  object  in  opening  the  boxes  at 
Abingdon.  It  is  further  said  that  Taylor  did  not  know  what  was  in 
the  boxes.  However,  if  a  man  take  away  any  property  at  all  belonging 
to  another,  having  arranged  to  elope  with  the  wife  of  that  other,  and 
having  told  the  wife  to  bring  all  the  money  she  could,  it  will  be  for  you 
to  say  whether  he  did  not  intend  to  steal  the  property  thus  taken  away, 

1  Ace.  Lamphier  v.  State,  70  Ind.  317,  semble.  —  Ed. 
48 


754  EEGINA  V.    NORVAL.  [CHAP.  XII, 

though  he  might  not  at  the  time  of  the  taking  know  exaetl}-  of  what  the 
property  consisted.  If  you  are  satisfied  that  the  prisoner  Taylor  took 
any  of  the  husband's  property,  there  then  being  a  criminal  intention,  or 
there  having  been  a  criminal  act  between  that  prisoner  and  the  wife,  it 
is  a  larceny,  and  you  ought  to  find  the  prisoner  guilty  ;  but  if  you  think 
that  the  prisoner  took  away  the  boxes  merelj'  to  get  the  wife  awa}-  as  a 
friend  only,  and  without  any  reference  to  any  criminal  connection  be- 
tween the  prisoner  and  the  wife,  either  actual  or  intended,  you  ought  to 
acquit  him. 

The  jury  found  the  prisoner  Taylor  guilty,  and  the  prisoner  ToUett 
not  guilty.^ 


REGINA  V.   NORVAL. 

Central  Criminal  Colkt.     1844. 

[Reported  1  Cox  C.  C.  95.] 

The  prisoners  were  indicted  for  feloniousl}'  stealing  certain  deer- 
horns,  tlie  property  of  one  Kirkman. 

It  appeared  in  evidence  that  the  prisoner  Norval  was  in  the  emplo}' 
of  Kirkman,  who  was  a  carman.  The  goods  in  question  were  lying  in 
the  docks,  and  the  owner  delivered  to  Kirkman  the  dock  warrants,  in 
order  that  he  might  receive  them  and  cart  them  up  to  town.  Kirkman 
accordingly  gave  the  warrants  to  the  prisoner  Norval,  with  the  neces- 
sary instructions,  and  he  (Norval)  went  with  a  cart  to  the  docks,  the 
deer-horns  were  put  into  it,  and  on  the  passage  back  to  London  several 
of  them  were  abstracted,  Norval  colluding  with  the  other  prisoner  for 
that  purpose. 

Ballantine,  for  the  prisoner  Norval,  contended,  that  upon  this  state 
of  facts  the  charge  should  have  been  one  of  embezzlement  as  against 
him,  and  not  one  of  felony.  The  goods  had  never  been  in  the  master's 
possession.  The  prisoner  obtained  thoin  lawfully  in  the  first  instance, 
so  that  there  could  be  no  tortious  taking,  which  was  an  essential  ingre- 
dient in  the  proof  of  felon}-. 

Mr.  Commissioner  Bullock  consented  to  reserve  the  point,  and  the 
prisoner  was  convicted. 

The  learned  commissioner  subsequently  stated  that  he  had  consulted 
Mr.  Baron  Gukney  on  the  subject,  who  was  of  opinion  that  the  con- 
viction was  proper.  True  it  is  that  the  making  away  by  a  servant  with 
goods  that  have  never  been  in  the  possession  of  the  master,  is  embez- 
zlement ;  but  here  there  is  a  constructive  possession,  and  that  accrued 
at  the  moment  when  the  goods  were  placed  in  the  master's  cart. 

1  Ace.  Rex  I'.  Willis,  1  Moody  C.  C.  375;  Rcj?.  v.  Classic,  7  Cox  C.  C.  1  ;  Reg.  v 
Kenny,  13  Cox  C.  C  397  ;  People  v.  Schuyler,  6  Cow.  572.  —  Ed. 


SECT.  IT.]  REGINA    V.    REED.  755 


REG  IN  A  V.   REED. 
Crown  Case  Reserved.     1853. 

[Reported  6  Cox  C.  C.  284.] 

The  following  case  was  reserved  by  the  Court  of  Quarter  Sessions 

for  tlie  county  of  Kent.  .      p  ir     f 

At  the  General  Quarter  Sessions  of  the  Peace  for  the  county  of  Kent, 
holden  at  Ma4dstone,  on  the  4th  January,  1853,  before  Aretus  Akers, 
Edward  Burton,  and  James  Espinasse,  Esqrs.,  justices  appointed  to  try 
prisoners  in  a  separate  court,  Abraham  Reed  was  tried  upon  an  idict- 
inent  for  feloniously  stealing  200  lbs.  weight  of  coals,  the  property  ot 
William  Newton,  his  master,  on  the  6th  December,  1852  ;  and  James 
Peerless  was  charged  in  the  same  indictment  with  receiving  the  coals, 
knowing  the  same  to  have  been  stolen,  and  was  acquitted. 

The  evidence  of  the  prosecutof,  William  Newton,  was  as  follows  :  — 
"  I  am  a  ^rocer  and  miller,  at  Cowden,  and  sell  coals  by  retail.     The 
prisoner,  Reed,  entered  my  service  last  year,  about  three  weeks  before 
the  6th  December.     On  that  day  I  gave  him  directions  to  go  to  a  cus- 
tomer to  take  some  flour,  and  thence  to  the  station  at  Edenbndge,  for 
12cwt  of  coals.     I  deal  with  the  Med  way  Company,  who  have  a  wharf 
there,  Holman  being  wharfinger.     I  told  Reed  to  bring  the  coals  to  my 
house.     Peerless  lives  about  500  yards  out  of  the  road  from  the  station 
to  my  house.     Reed  went  about  nine  a.m.,  and  ought  to  have  come 
back  between  three  and  four  p.  m.  ;   but  as  he  had  not  come  back,  I 
went  in  search  of  him  at  half-past  six,  and  found  him  at  Peerless  s. 
The  cart  was  standing  in  the  road  opposite  the  house,  and  the  two 
prisoners  were  taking  coals  from  the  cart  in  a  truck  basket.     It  was 
dark      I  asked  Reed  what  business  he  had  there  ;  he  said,  '  to  deliver 
half  a  hundredweight  for  which  he  had  received  an  order  from  Peer- 
less '     Reed  had  never  before  told  me  of  such  an  order,  and  had  no 
authority  from  me  to  sell  coals.     Later  that  evening  I  went  and  asked 
Peerless  what  coals  he  had  received  from  my  cart ;  he  said,  half  a  hun- 
dredweight.    I  then  asked  him  how  they  were  carried  from  the  cart ; 
he  said,ln  a  sack.     I  weighed  the  coals  when  brought  home,  and  found 
the  quantity  so  brought  a  quarter  of  a  hundredweight  and  four  pounds 
short      I   went  to  Peerless's   next  day  and  found   some  coals  there, 
apparently  from  half  to  three  quarters  of  a  hundredweight."     Upon  his 
cross-examination  he  stated  as  follows :    "  I  believe  Peerless  had  some- 
times had  coals  from  me.     When  I  came  up  they  were  shutting  the  tail 
of  the  cart,  but  some  coals  were  in  a  truck-basket  at  their  feet.     Reed 
said  at  once  that  he  had  received  an  order  from  Peerless.     It  was  two 
hours  later  when  I  asked  Peerless,  and  when  he  said  he  had  ordered 
them.     Reed  said  he  had  carried  two  hundredweight  in,  but  that  was 
two  hours  after."     On  his  re-examination  he  said:    "I  think  Peerless 
had  had  some  coals  from  me  about  a  fortnight  before  the  6th."     James 


756  KEGINA    V,   KEED.  [CHAP.  XIT. 

Holman,  another  witoess  for  the  prosecution,  said  :  "  I  am  wharfinger 
to  the  Meclway  Company,  at  the  Edenbridge  station,  and  Newton  deals 
there  for  coals.  Reed  came  on  the  6th  December,  and  asked  for  half  a 
ton  for  Newton,  and  I  supplied  him.  I  entered  them  at  the  time  to 
Newton,  and  now  produce  the  book  with  the  entry."  James  Handley, 
another  witness  for  the  prosecution,  said,  "  I  am  superintendent  of  the 
Sevenoaks  division.  On  the  7th  December,  I  went  to  Peerless's,  and 
asked  him  how  much  coals  he  had  received  from  Reed  ;  he  said  he  had 
ordered  half  a  hundredweight  three  weeks  before  ;  Reed,  when  I  asked 
him  afterwards,  said,  three  days  before ;  Reed  said  he  had  received 
two  glasses  of  wine  from  Peerless."  On  his  cross-examination,  he 
said,  "This  was  about  four  p.  m.,  7th  December."  Newton  was  then 
re-examined  and  said  :  "  Reed  came  to  me  in  the  morning  of  the  7th  ; 
I  told  him  23  cwts.  were  missing.  He  then  said  one  sack  had  been 
left  at  the  wharf  by  mistake  ;  I  therefore  charged  him  with  only  three- 
quarters  of  a  hundredweight."  Holman,  upon  re-examination,  said  : 
"  Reed  left  a  sack  behind  him  ;  but  it  was  an  empty  one."  This  being 
the  case  for  the  prosecution,  Mr.  Ribton,  counsel  for  the  prisoner,  sub- 
mitted that  there  was  no  case  to  go  to  the  jury  on  the  charge  of  larcen}-, 
inasmuch  as  the  coals  left  at  Peerless's  had  never  been  in  the  possession 
of  Newton,  the  master.  Mr.  Rose,  counsel  on  the  part  of  the  prosecu- 
tion, contended  that  the  coals  were  constructively  in  the  possession  of 
Newton,  and  that  the  offence  was  properly  charged  as  larceny  ;  but  that, 
under  the  provisions  of  the  act  14  &  15  Vict.  c.  100,  s.  13,  it  was  imma- 
terial whether  the  offence  were  larceny  or  embezzlement,  as  the  jury 
might  find  a  verdict  either  for  larceny  or  embezzlement.  Mr.  Ribton 
then  proposed  that  it  should  be  left  to  the  jury  as  a  charge  of  embezzle- 
ment ;  but  to  this  Mr.  Rose  objected,  on  the  ground  that  the  receiver 
must  then  be  acquitted.  The  court  were  of  opinion  that  there  was  a 
constructive  possession  in  the  master,  and  left  the  case  to  the  jury  as  a 
case  of  larceny  upon  the  evidence,  who  thereupon  found  the  prisoner, 
Abraham  Reed,  guilty.  Mr.  Ribton  then  applied  to  the  court  to  sub- 
mit the  case  to  the  Court  of  Criminal  Appeal,  contending  that  the 
conviction  was  wrong  in  law  ;  as,  if  an\-  ofl'ence  had  been  committed,  it 
was  embezzlement,  and  not  larceny.  The  court  acceded  to  the  appli- 
cation, and  respited  judgment,  and  discharged  Reed,  upon  his  entering 
into  recognizances  —  himself  in  £20,  and  one  surety  in  £20  —  to  receive 
judgment  at  the  next  Court  of  Quarter  Sessions  for  Kent. 

This  case  was  first  argued  on  the  23d  April,  1853,  before  Jervis, 
C.  J.,  Parke,  B.,  Alderson,  B.,  Wightman,  J.,  and  Cresswell,  J., 
when  the  court  took  time  to  consider  their  judgment.  The  court 
afterwards  directed  that  the  case  should  be  argued  before  all  the  judges ; 
and,  in  pursuance  of  that  direction,  the  case  was  again  heard  on  the 
19th  November,  1853. 

Rihton,  for  the  prisoners.  The  conviction  is  wrong.  To  constitute 
larcenj'  there  must,  according  to  all  the  definitions  of  that  offence,  be  a 
taking  from  the  possession  of  the  owner.     Formerl}',  it  was  supposed 


SECT    TI  ]  EEGINA    V.    EEED.  757 

that  the  takhig  must  be  out  of  the  actual  possession  of  the  owner,  as 
appears  b}-  the  recital  of  the  earliest  Embezzlement  Act  (21  Hen.  VIII. 
c.  7),  which  was  passed  to  provide  for  the  punishment  of  servants  con- 
verting goods  or  money  entrusted  to  their  keeping  by  their  masters 
(Dalton's  Country  Justice,  496) ;  but  it  is  now  settled  that  the  posses- 
sion may  be  either  actual  or  constructive.-  In  either  case  the  taking 
constitutes  a  trespass,  which  is  essential  to  larceny.  Constructive  pos- 
session is  of  two  kinds  :  first,  where  property  has  been  given  by  the 
master  to  the  servant  for  a  special  purpose,  or  is  put  under  the  ser- 
vant's charge  or  custody  ;  secondly,  where  a  third  person  has  given 
goods  to  the  servant,  and  the  servant  has  determined  his  own  exclusive 
possession  by  some  act  which  vests  the  possession  in  the  master.  The 
constructive  possession  in  this  case,  if  any,  was  of  the  second  kind  ;  but 
there  was,  in  truth,  no  possession  by  the  master  at  all.  ^,^ 

Parke,  B.  If  the  goods  were  the  property  of  the  master  before  the 
delivery  of  them  to  the  servant,  any  act  whereby  the}-  are  reduced  into 
the  master's  possession  is  sufficient. 

Mibton.  Yes  ;  but  not  a  mere  right  to  the  actual  possession.  The 
criterion  is,  whether  the  goods  have  reached  the  place  of  their  ultimate 
destination  ?  The  distinction  is  between  the  actual  possession  and  the 
right  to  the  actual  possession.  In  Waite's  case  (1  Leach,  28  ;  2  East 
P.  C.  570),  a  cashier  of  the  Bank  of  England  abstracted  an  India  bond  ; 
but,  as  the  bond  had  not  been  previously  placed  by  him  in  the  cellar  of 
the  bank,  the  place  of  its  ultimate  destination,  the  act  was  held  to  be 
not  one  of  larcenv.  So,  in  the  present  case,  the  act  is  not  one  of  lar- 
ceny, because  the^'oals,  though  the  master  had  a  right  to  the  possession 
of  them,  had  not  reached  the  place  of  their  final  deposit.  In  R.  v. 
Bazeley  (2  Leach,  835  ;  2  East  P.  C.  571),  money  was  received  by  a 
banker's  clerk  at  the  counter,  and,  instead  of  putting  it  into  the  proper 
drawer,  he  purloined  it ;  and  that  was  held  not  to  be  larceny,  because  as 
against  him  there  was  no  possession  by  the  master.  [Lord  Campbell, 
a  J.  —  On  the  former  argument,  my  brother  Parke  suggested  that  that 
was  money,  the  subject  of  account.  Platt,  B.  —  Suppose  it  to  be  the 
duty  of  the  clerk  to  put  the  money  into  a  drawer  and  lock  it  up,  must 
the  drawer  be  pushed  home  and  locked  up  before  the  money  has  got 
into  the  possession  of  the  master?]  The  drawer  on  the  premises  of  the 
master  is  the  ultimate  place  of  deposit.  [Lord  Campbell,  C.  J.  —  Sup- 
pose that  the  servant  leaves  the  horse  and  cart  on  the  road  ;  has  he  then 
determined  his  duty,  so  that  if  he  comes  back  he  may  steal  them?]  If 
he  liad,  it  would  be  embezzlement.  R.  v.  Bull,  2  Leach,  841 ;  R.  v. 
Poorer,  cited  in  R.  v.  Meeres,  1  Show.  50 ;  R.  v.  Walsh,  4  Taunt. 
258,  276;  R.  &  R.  215;  2  East  P.  C.  177;  and  R.  v.  Spears  there 
cited.  [Lord  Campbell,  C.  J.  — In  the  report  in  4  Taunt.  276, 
Heath,  J.,  says,  "  That  case  went  upon  the  ground  that  the  corn  was 
in  the  prosecutor's  barges,  which  was  the  same  thing  as  if  it  had  been 
in  his  granary."]  The  report  in  East  is  not  so.  He  also  cited  R.  y. 
SuUens,  1  Moo.  C.  C.  129,  and  R.  v.  Masters,  3  Cox  Crira.  Cas.  178; 


_^- 


758 


EEGINA   V.   REED.  [CHAP.  XII. 


1  Den.  332.  [Pollock,  C.  B.  —  Suppose  he  had  had  to  take  the  coals 
to  a  customer  at  once.  How  would  it  be  then?  In  respect  to  the 
master,  the  cart  would  be  the  final  place  of  deposit.]  The  customer's 
house  would  have  been  the  final  place  of  deposit.  [Lord  Campbell, 
C.  J.  —  How  do  you  define  the  place  of  final  deposit?]  That  depends 
on  the  particular  circumstances  of  each  case.  In  this  one,  for  instance, 
it  is  the  house  of  the  master.  [Lord  Campbell,  C.  J.  —  When  the 
coals  passed  the  threshold,  or  the  cart  passed  the  gate  ?  A  farm-house 
is  at  the  extremit}'  of  a  field ;  does  the  constructive  possession  cease  at 
the  gate  of  the  field,  or  at  the  door  of  the  house  ?  Platt,  B.  —  The  cart 
was  in  the  possession  of  the  master.  If  he  had  taken  that,  it  would 
have  been  larceny.  Parke,  B.  —  The  cart  is  but  the  means  of  transit  to 
the  master's  house,  which  was  the  ultimate  place  of  destination.]  In 
R.  V.  Hayward  (1  Car.  &  K.  518)  straw  thrown  down  at  a  stable  door 
was  considered  to  have  reached  a  place  of  final  deposit.  If  a  banker's 
clerk  collects  bills,  puts  them  into  his  pocket,  and  abstracts  one,  the 
property  of  his  master,  which  he  afterwards  converts  to  his  own  use, 
that  is  embezzlement,  not  larceny.  [Jervis,  C.  J.  —  How  do  3  ou  distin- 
guish the  cases  of  R.  v.  Spears  and  R.  v.  Abrahat  (2  Leach,  828)? 
Lord  Campbell,  C.  J. — R.  v.  Spears  is  on  all-fours  with  this  case. 
Parke,  B.  — In  R.  v.  Spears  it  is  uncertain,  looking  at  the  reports  in 
East  and  Leach,  and  the  difference  between  the  two  editions  of  Leach, 
whether  the  judgment  did  not  turn  on  the  fact  that  the  master  had 
bought  the  whole  cargo.]  In  that  case  the  master  would  have  had  a 
title  and  constructive  possession  before  delivery  to  the  prisoner. 

Hose,  contra.  The  act  of  the  prisoner  was  an  offence  at  common 
law.  The  embezzlement  statutes  are  affirmative,  and,  so  soon  as  a 
trespass  is  proved,  a  larceny  is  established.  There  was  a  trespass  in  this 
case ;  for,  as  the  coals  were  asked  for  in  the  master's  name,  charged  to 
the  master  in  the  bill,  put  into  the  master's  sacks,  and  the  sacks  put 
into  the  master's  cart,  the  master  had  constructive  possession  before 
the  servant  had  actual  exclusive  possession.  Com.  Dig.  "  Trespass," 
B.  4.  [Lord  Campbell,  C.J. — The  constructive  possession  of  the 
master  need  not  be  distinct  from  the  actual  possession  of  the  servant.] 
What  act  before  the  taking  in  this  case  divested  the  master  of  his  con- 
structive possession?  Robinson's  case  (2  East  P.  C.  565),  Paradice's 
case  (ib.),  proceed  on  the  principle  that,  despite  the  manual  possession 
of  the  servant,  the  constructive  possession  is  in  the  master.  So,  if  the 
servant  had  left  the  cart  and  coals,  had  returned  suddenly'  in  the  night, 
and  had  taken  the  coals,  would  he  not  have  been  guilty  of  stealing  his 
master's  property?  The  case  of  R.  v.  Spears  is  not  to  be  distinguished 
from  this.  In  commenting  on  Waite's  case  and  Bazeley's  case,  East 
reconciles  them  by  saying  that  there  is  no  constructive  possession  with- 
out the  possession  of  the  servant.  In  R.  v.  Bull  the  case  was  one  of 
money,  which  constitutes  matter  of  account,  and  trespass  would  not 
lie.  Higgs  V.  Holliday,  Cro.  Eliz.  746.  This  is  not  like  the  case  of  a 
gift  to  the  master,  where  he  never  gets  possession  until  delivery  to  the 


SECT.  II.]  REGIXA   V.    REED.  759 

servant.  [Lord  Campbell,  C.  J.  —  Spears'  case  is  to  be  taken  from 
the  second  edition  of  Leach,  as  is  shown  by  Heatli,  J.,  in  4  Taunt. 
276.  Parke,  B.  —  If  we  take  it  from  Abrahat's  case,  the  corn  was 
clearly  purchased  by  the  master  before.]  Suppose  that  another  servant 
had  been  sent ;  that  he  had  delivered  the  order  ;  that  the  coals  had  been 
weighed  out ;  and  that  the  prisoner  had  then  been  sent  with  the  cart  for 
the  coals,  and  had  stolen  some  of  them,  —  that  must  have  been  larcen}'. 
In  R.  V.  Harding  (R.  &  R.  125)  property  which  the  prosecutor  had 
bought  was  weighed  out  in  the  presence  of  his  clerk,  and  delivered  to 
the  carter's  servant  to  cart,  and  a  fraudulent  conversion  by  the  carman 
was  held  larcen}'. 

Mibton^  in  repl}'.  In  R.  v.  Harding  the  property  had  been  in  the 
actual  possession  of  the  master.  In  R.  v.  Watts  (2  Den.  C.  C.  14),  the 
defendant  divested  himself  of  possession  in  favor,  so  to  say,  of  his 
employers.  In  tliis  case  the  prisoner  has  not  so  divested  himself  by 
any  distinct  act.  In  R.  v  Watts,  the  distinct  act  was  the  receipt  had 
of  the  cheque  by  the  prisoner ;  it  being  his  dut}'  to  his  employers  to 
receive  it.  In  this  case  the  coals  had  not  reached  their  final  destina- 
tion. Cur.  adv.  vult. 

Lord  Campbell,  C.  J.  There  lies  before  me  a  judgment  that  I  had 
prepared  for  myself  at  a  time  when  there  was  reason  to  suppose  that 
there  might  be  one,  if  not  more  dissenting  judges.  I  have  reason  to 
believe  now  that  there  will  not  be  any  dissent ;  but  still  this  judgment 
must  be  considered  only  as  embodying  the  reasons  I  give  for  my 
opinion,  because  I  have  no  authority  to  say  that  m}'  brothers  concur  in 
that  opinion,  and  the  reasons  for  it.  For  convenience,  I  have  written 
my  judgment,  and  my  learned  brothers  will  saj-  how  far  they  concur  or 
dissent.  I  am  of  opinion  that  the  prisoner  has  been  properly  convicted 
of  larceny.  There  can  be  no  doubt  that,  in  such  a  case,  the  goods 
must  have  been  in  the  actual  or  the  constructive  possession  of  the  mas- 
ter ;  and  that,  if  the  master  had  no  otherwise  the  possession  of  them 
than  hy  the  bare  receipt  of  his  servant  upon  the  delivery  of  another  for 
the  master's  use,  although  as  against  third  persons  this  is  in  law  a 
receipt  of  the  goods  bj*  the  master,  yet  in  respect  of  the  servant  himself 
this  will  not  support  a  charge  of  larceny,  because  as  to  him  there  was 
no  tortious  taking  in  the  first  instance,  and  consequently  no  trespass. 
Therefore,  if  there  had  been  a  quantit}'  of  coals  delivered  to  the  pris- 
oner for  the  prosecutor,  and  the  prisoner,  having  remained  in  the 
personal  possession  of  them,  as  by  carrying  them  on  his  back  in  a 
bag,  without  anything  having  been  done  to  determine  his  original  ex- 
clusive possession,  had  converted  them  animo  furandi^  he  would  have 
been  guilt}'  of  embezzlement,  and  not  of  larceny.  But  if  the  servant 
has  done  anything  which  determines  his  original  exclusive  possession 
of  the  goods,  so  that  the  master  thereby  comes  constructivel}-  into 
possession,  and  the  servant  afterwards  converts  them  animo  furandi., 
he  is  guilty  of  larceny,  and  not  merely  of  a  breach  of  trust  at  common 


„gQ  KEGINA   V.    REED.  [CHAP.  XII. 

law    or  Of  embezzlement  under  the  statute.     On  this  supposition  he 
subsequently  takes  the  goods  tortiously  in  converting  them,  and  com- 
mits a  trespass.     We  have  tlierefore  to  consider  whether  the  exclusive 
possession  of  the  coals  continued  with  the  prisoner  down  to  the  time 
of  the  conversion.      I  am  of  opinion  that  this  exclusive  possession 
was  determined  when  the  coals   were   deposited   in   the   prosecutors 
cart,  in  the  same  manner  as  if  they  had  been  deposited  in  the  prose- 
cutor's cellar,  of  which  the  prisoner  had  the  charge.     The  prosecutor 
was  undoubtedly  in  possession  of  the  cart  at  the  time  when  the  coals 
were  deposited  in  it ;  and  if  the  prisoner  had  carried  off  tlie  cart  ammo 
furandi,  he  would  have  been  guilty  of  larceny.      That  is   expressly 
determined  in  Robinson's  case  (2  East,  565).     There  seems  considera- 
ble difficulty  in  contending  that,  if  the  master  was  in  possession  of  the 
cart,  he  was  not  in  possession  of  the  coals  which  it  contained,  the  coals 
being  his  propertv,  and  deposited  there  by  his  order,  for  his  use.     Mr. 
Ribton  argued  that  the  goods  received  by  a  servant  for  his  master 
remain  in  the  exclusive  possession  of  the  servant  till  they  have  reached 
their  ultimate  destination.     But  he  was  unaUle,  notwithstanding  his 
learning  and  ingenuity,  to  give  any  definition  of  "  ultimate  destination," 
when  so  used.     He  admitted  that  the  master's  constructive  possession 
would  begin  before  the  coals  were  deposited  in  the  cellar,  when  the  cart 
containing  the  coals  had  stopped  at  his  door,  and  even  when  it  had 
entered  liTs  gate.     But  I  consider  the  point  of  time  to  be  regarded  is 
that  when  the  coals  were  deposited  in  the  cart.     Thenceforth  the  pris- 
oner had  only  the  custody  or  charge  of  the  coals,  as  a  butler  lias  of  his 
master's  plate,  or  a  groom  has  of  his  master's  horse.     To  this  conclu- 
sion, with  the  most  sincere  deference  to  any  of  my  learned  brothers 
who  may  at  any  time  have  taken  a  different  view,  —  to  this  conclusion 
I  should  have  come  on  principle ;  and  I  think  that  Spears'  case  is  an 
express  authority  for  it.     The  following  is  an  exact  copy  of  the  state- 
ment of  that  case,  signed  by  Buller,  J.,  in  pp.  181,  182,  and  183  of  the 
2d  volume  of  the  Black  Book,  containing  the  decisions  of  the  judges  in 
Crown  cases,  deposited  witli  the  Chief  Justice  of  the  Queen's  Bench  for 
the  time  being:     "John  Spears  was  convicted  before  me  at  Kingston, 
for  stealing  forty  bushels  of  oats  of  James  Broune  &  Co.  in  a  barge  on 
the  Thames.     Broune  «fe  Co.  sent  the  prisoner  with  their  barge  to  Wil- 
son, a  corn  meter,  for  as  much  oats  only  as  the  barge  would  carry, 
and  which  were  to  be  brought  in  loose  bulk.     The  prisoner  received 
from  Wilson  220  quarters  in  loose  bulk,  and  five  quarters  in  sacks  ;  the 
prisoner  ordering  that  quantity  to  be  put  into  sacks.     Tlie  quantity  in 
the  sacks  was  afterwards  embezzled  by  the  prisoner ;  and  the  question 
reserved  for  the  opinion  of  the  judges  is,  whether  this  was  felon}-,  the 
oats  never  having  been  in  the  possession  of  the  prosecutor ;  or  whether 
it  was  not  like  the  case  of  a  servant  receiving  change  or  buying  a  thing 
for  his  master,  but  never  delivering  it."     Then  there  is  a  reference  made 
to  D3^  5,  and  1  Show.  52  ;  and  then  this  is  signed  by  Sir  J.  Buller ;  and 
then  is  added,  "  25th  April,  1798.     Conviction  affirmed."     Now  that 


SECT.  II.]  REGINA   V.    REED.  761 

is  an  exact  copy  from  the  Black  Book.  In  that  case  the  question  arose 
whether  the  corn,  while  in  the  prosecutor's  barge,  in  which  it  was  to  be 
brought  by  the  prisoner  to  the  prosecutor's  granary,  was  to  be  consid- 
ered in  the  possession  of  the  prosecutor ;  and  the  judges  unanimously 
held,  that  from  the  time  of  its  being  put  into  the  barge  it  was  in  the 
prosecutor's  possession,  although  the  prisoner  had  the  custody  or  charge 
of  it.  That  case  has  been  met  at  the  bar  by  a  suggestion  that  the 
whole  cargo  of  corn,  of  which  the  quantity  put  on  board  this  barge  was 
a  part,  was  or  might  have  been  purchased  by  the  prosecutor,  so  that  he 
might  have  had  a  title  and  constructive  possession  before  the  delivery 
to  the  prisoner.  But  the  very  statement  of  the  case  in  the  Black  Book, 
and  the  authorities  referred  to,  show  that  the  judges  turned  their  atten- 
tion to  the  question  whether  the  exclusive  possession  of  the  servant  had 
not  been  determined  before  conversion  ;  and  during  the  argument  of 

/'Rex  V.  Walsh  (4  Taunt.  276)  we  have  the  ratio  decideiidi  in  Spears' 
case  explicitly  stated  by  one  of  the  judges  who  concurred  in  the  n 
decision  :  "  Heath,  J.  —  That  case  went  upon  the  ground  that  the  corn  >v 
was  in  the  prosecutor's  barge,  which  was  the  same  thing  as  if  it  had 
been  in  his  granary."  Read  "  cart  "  for  "  barge,"  "  coals  "  for  "  corn," 
and  ''cellar"  for  "granary,"  and  the  two  cases  are  for  this  purpose 
precisely  the  same.  There  is  no  conflicting  authority  ;  for  in  all  the 
cases  relied  upon  by  Mr.  Ribton,  the  exclusive  personal  possession  op^ 
the  prisoner  had  continued  down  to  the  time  of  the  wrongful  conver- 
sion. It  is  said  there  is  great  subtlety  in  giving  such  an  effect  to  the 
deposit  of  the  coals  in  the  prosecutor's  cart ;  but  the  objection  rests  on 
a  subtlety  wholly  unconnected  with  the  moral  guilt  of  the  prisoner,  for 
as  to  that  it  must  be  quite  inunaterial  whether  the  property  in  the  coals 
had  or  had  not  vested  in  the  "prosecutor  prior  to  the  time  Avhen  they 
were  delivered  to  the  prisoner.  We  are  to  determine  whether  this 
would  have  been  a  case  of  larceny  at  common  law  before  there  was  any 
statute  against  embezzlement ;  and  I  do  not  think  that  there  would  have 
been  any  reproach  to  the  administration  of  justice  in  holding  that  the 
subtlety  arising  from  the  prosecutor  having  had  no  property  in  the  sub- 
ject of  the  larceny  before  its  delivery  to  the  prisoner,  who  stole  it,  was 
sufficiently  answered  by  the  subtlety  that  when  the  prisoner  had  once 
parted  with  the  personal  possession  of  it,  so  that  a  constructive  posses- 
sion by  the  prosecutor  began,  the  servant  who  subsequently  stole  it 
should  be  liable  to  be  punished,  as  if  there  had  been  a  prior  property 
and  possession  in  the  prosecutor,  and  that  the  servant  should  be  ad- 
judged liable  to  be  punished  for  a  crime,  instead  of  being  allowed  to 
say  that  he  had  only  committed  a  breach  of  trust,  for  which  he  might  be 
sued  in  a  civil  action.  In  approaching  the  confines  of  different  offences 
created  by  common  law  or  by  statute,  nice  distinctions  must  arise,  and 
must  be  dealt  with.  In  the  present  case  it  is  satisfactory  to  th-ink  that 
the  ends  of  justice  arc  effectually  gained  by  affirming  the  conviction  ; 
for  the  only  objection  to  it  is  founded  upon  an  argument  that  he  ought 
to  have  been  convicted  of  another  offence  of  the  same  character,  for 
which  he  would  have  been  liable  to  the  same  punishment. 


Yg2  COMMONWEALTH   V.   RYAN.  [cHAP.  XII. 

Jervis,  C.  J.  I  concur  in  the  judgment  of  the  Lord  Chief  Justice. 
I  had  originally  written  a  judgment  concurring  in  the  view  taken  by 
my  lord  ;"but  ultimately  I  have  not  found  it  necessary  to  read  it.  It  is 
admitted  that  the  cart  was  in  the  possession  of  the  servant  for  a  special 
purpose ;  if  he  had  taken  the  cart,  he  would  have  been  guilty  of  lar- 
ceny ;  and  if  the  cart  for  this  purpose  continued  the  cart  of  the  master, 
the  delivery  of  the  ooals  into  the  cart  was  a  delivery  to  the  master,  and  i 
makes  the  offence  a  larceny. 

Parke,  B.  I  certainly  had  differed  from  the  view  of  this  case  which 
has  been  taken  by  Lord  Campbell  at  a  time  when  it  was  uncertain 
what  the  case  of  Spears  actually  was,  and  treating  this  case  as  res 
nova.  The  book  in  which  the  opinions  of  the  judges  arc  written,  and 
which  is  always  in  the  custody  of  the  Lord  Chief  Justice,  was  mislaid ; 
and  the  case  of  John  Spears  was  differently  reported  in  the  two  editions 
of  Leach,  and  also  in  p:ast's  Crown  Law ;  and  that  case  could  not  for  a 
long  time  be  found.  However,  since  it  has  been  found,  I  have  satisfied 
myself;  and  I  entertain  no  doubt  upon  it.  I  should  have  delivered  my 
reasons  at  length  ;  but  it  is  unnecessary  now  lo  do  so.  The  cases  of 
Rex  V.  Abrahat  and  Rex  v.  Spears  having  been  discovered,  and  having 
read  that  case  with  the  explanation  of  Heath,  J.,  I  find  the  point  de- 
cided;  and  though,  therefore,  if  tiiis  were  res  nova,  I  should  have 
pronounced  an  opinion  that  tliis  was  not  larceny,  yet  as  that  case  is  a 
decided  authority,  by  the  authority  of  that  case  I  am  bound  ;  and  it  is 
unnecessary  for  me  to  deliver  my  reasons  at  any  greater  length. 

The  other  judges  concurred.  Co)ivictioii.  affirmed. 


COMMONWEALTH  v.   RYAN. 
Supreme  Judicial  Court  of  Massachusetts.     1892. 

[Reported  155  Massachusetts,  523.] 

Holmes,  J.^  This  is  a  complaint  for  embezzlement  of  monc}'. 
The  case  for  the  government  is  as  follows :  The  defendant  was  em- 
ployed by  one  Sullivan  to  sell  liquor  for  him  in  his  store.  Sullivan 
sent  two  detectives  to  the  store,  with  marked  money  of  Sullivan's,  to 
make  a  feigned  purchase  from  the  defendant.  One  detective  did  so. 
The  defendant  dropped  the  money  into  the  money  drawer  of  a  cash 
register,  which  happened  to  be  open  in  connection  with  another  sale 
made  and  registered  by  the  defendant,  but  he  did  not  register  this  sale, 
as  was  customar}',  and  afterward  —  it  would  seem  within  a  minute  or 
two  —  he  took  the  money  from  the  drawer.  The  question  presented  is 
whether  it  appears,  as  matter  of  law,  that  the  defendant  was  not  guilty 
of  embezzlement,  but  was  guilt}*  of  larceny,  if  of  anything.     The  de- 

1  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


SECT,  n.]  COMMONWEALTH   V.    RYAN.  763 

fendant  asked  rulings  to  that  effect  on  two  grounds  :  first,  that  after  the 
money  was  put  into  the  drawer  it  was  in  Sullivan's  possession,  and  there- 
fore the  removal  of  it  was  a  trespass  and  larceny  ;  and  secondly,  that 
Sullivan's  ownership  of  the  money,  in  some  way  not  fully  explained, 
prevented  the  offence  from  being  embezzlement.  We  will  consider 
these  positions  successively. 

We  must  take  it  as  settled  that  it  is  not  larceny  for  a  servant  to  con- 
vert property  delivered  to  him  by  a  third  person  for  his  master,  provided 
he  does  so  before  the  goods  have  reached  their  destination,  or  some- 
thing more  has  happened  to  reduce  him  to  a  mere  custodian  (Com- 
monwealth V.  King,  9  Cush.  284)  :  while,  on  the  other  hand,  if  the 
property  is  delivered  to  the  servant  by  his  master,  the  conversion  is 
larceny.  Commonwealth  v.  Berry,  99  Mass.  428 ;  Commonwealth  v, 
Davis,  104  Mass.  548. 

This  distinction  is  not  very  satisfactory,  but  it  is  due  to  historical 
accidents  in  the  development  of  the  criminal  law,  coupled,  perhaps, 
with  an  unwillingness  on  the  part  of  the  judges  to  enlarge  the  limits  of 
a  capital  offence.  2  Leach  (4th  ed.),  843,  848,  note  ;  1  Leach  (4th  ed.), 
35,  note ;  2  East  P.  C.  568,  571. 

The  history  of  it  is  this.  There  was  no  felony  when  a  man  received 
possession  of  goods  from  the  owner  without  violence.  Glanv.,  bk. 
10,  c.  13  ;  Y.  B.  13  Edw.  IV.  9,  pi.  5 ;  3  Co.  Inst.  107.  The  early- 
judges  did  not  always  distinguish  clearly  in  their  language  between 
the  delivery  of  possession  to  a  bailee  and  the  giving  of  custody  to  a 
servant,  which  indeed  later  judges  sometimes  have  failed  to  do.  E.  g. 
Littleton  in  Y.  B.  2  Edw.  IV.  15,  pi.  7 ;  3  Hen.  VII.  12,  pi.  9; 
Ward  V.  Macauley,  4  T.  R.  489,  490.  When  the  peculiar  law  of  mas- 
ter and  servant  was  applied  either  to  the  master's  responsibility  or  to 
his  possession,  the  test  seems  to  have  been  whether  or  not  the  servant 
was  under  the  master's  eye,  rather  than  based  on  the  notion  of  status 
and  identity  of  person,  as  it  was  at  a  later  day.  See  Byington  v. 
Simpson,  134  Mass.  169,  170.  Within  his  house  a  master  might  be 
answerable  for  the  torts  of  his  servant,  and  might  have  possession  of 
goods  in  his  servant's  custody,  although  he  himself  had  put  the  goods 
into  the  servant's  hands  ;  outside  the  house  there  was  more  doubt ;  as 
when  a  master  intrusted  his  horse  to  his  servant  to  go  to  market.  Y.  B. 
21  Hen.  VII.  14,  pi.  21  ;  T.  24  Edw.  III. ;  Bristol  in  Molloy,  De  Jure 
Maritimo,  bk.  2,  c.  3,  §  16 ;  Y.  B.  2  Hen.  IV.  18,  pi.  6  ;  13  Edw.  IV. 
10,  pi.  5  ;  s.  c.  Bro.  Abr.  Corone,  pi.  160  ;  Staundforde,  I.,  c.  15,  fol. 
25  ;  c.  18,  fol.  26 ;  1  Hale,  P.  C.  505,  note.  See  Heydon  &  Smith's 
case,  13  Co.  Rep.  67,  69  ;  Drope  v.  Theyar,  Popham,  178,  179  ;  Combs 
V.  Bradley,  2  Salk.  613  ;  and,  further,  42  Ass.  pi.  17,  fol.  260  ;  42  Edw. 
IIL  11,  pi.  18;  Ass.  Jerus.  (ed.  1690),  cc.  205,  217.  It  was  settled 
by  St.  21  Hen.  VIII.  c.  7,  that  the  conversion  of  goods  delivered  to  a 
servant  by  his  master  was  felony,  and  this  statute  has  been  thought  to 
be  only  declaratory  of  the  common  law  in  later  times,  since  the  distinc- 
tion between  the  possession  of  a  bailee  and  the  custody  of  a  servant 


764 


COMMONWEALTH   V.   EYAN,  [cHAP.  XII. 


has  been  developed  more  full}-,  on  the  ground  that  the  custod}'  of  the 
servant  is  the  possession  of  the  master.  2  East  P.  C.  564,  565  ;  The 
King  V.  Wilkins,  1  Leach  (4th  ed.),  520,  523.  See  Kelyng,  35  ;  Fitzh. 
Nat.  Brev.  91  E;  Blosse's  ease,  Moore,  248;  s.  c.  Owen,  52,  and 
Gouldsb.  72.  But  probably  when  the  act  was  passed  it  confirmed  the 
above  mentioned  doubt  as  to  the  master's  possession  where  the  servant 
was  intrusted  with  property  at  a  distance  from  his  master's  house  in 
cases  outside  the  statute,  that  is,  when  the  chattels  were  delivered  by  a 
third  person.  In  Dyer,  5a,  5b,  it  was  said  that  it  was  not  within  the 
statute  if  an  apprentice  ran  off  vvitli  the  money  received  from  a  third 
person  for  his  master's  goods  at  a  fair,  because  he  had  it  not  by  the 
delivery  of  his  master.  This,  very  likely,  was  correct,  because  the 
statute  only  dealt  with  delivery  by  the  master  ;  but  the  case  was  taken 
before  long  as  authority  for  the  broader  proposition  that  the  act  is  not 
a  felon}',  and  the  reason  was  invented  to  account  for  it  that  the  servant 
has  possession,  because  the  money  is  delivered  to  him.  1  Hale  P.  C. 
667,  668.  Tliis  phrase  about  delivery  seems  to  have  been  used  first  in 
an  attempt  to  distinguish  between  servants  and  bailees.  Y.  B.  13 
Edw.  IV.  10,  pi.  5  ;  Moore,  248  ;  but  as  used  here  it  is  a  perverted 
remnant  of  the  old  and  now  exploded  notion  that  a  servant  away  from  _ 
his  master's  house  always  has  possession.  The  old  case  of  the  servant 
converting  a  horse  witli  wliich  his  master  had  intrusted  liim  to  go  to 
market  was  stated  and  exi)lained  in  tlie  same  wa}-,  on  the  ground  that 
the  horse  was  delivered  to  the  servant.  Crompton,  Just,  'dbb,  pi.  7. 
See  Tlie  King  v.  Bass,  1  Leacli  (4th  ed.),  251.  Yet  the  emptiness  of 
the  explanation  was  shown  by  the  fact  that  it  still  was  held  felony  when 
the  master  delivered  property  for  service  in  his  own  house.  Kelyng, 
35.  The  last  step  was  for  the  i)rinciple  thus  qualified  and  explained 
to  be  applied  to  a  delivery  by  a  third  person  to  a  servant  in  his  master's 
shop,  although  it  is  possible  at  least  that  the  case  would  have  been 
decided  differently  in  the  time  of  the  Year  Books  (Y.  B.  2  Edw.  IV. 
15  pi.  7;  Fitzh.  Nat.  Brev.  91  E)  ;  and  although  it  is  questionable 
whether  on  sound  tbeor}-  the  possession  is  not  as  much  in  the  master  as 
if  he  had  delivered  the  property  himself.  Rex  v.  Dingley  (1687),  stated 
in  The  King  v.  Bazeley,  2  Leach  (4th  ed.),  835,  841,  and  in  The  King 
V.  Meeres,  1  Show.  50,  53  ;  Waite's  case  (1743),  2  East  P.  C.  570  ;  s.  c. 
1  Leach  (4th  ed.),  28,  35,  note;  Bull's  case,  stated  in  The  King  v. 
Bazeley,  2  Leach  (4th  ed.),  835,  841  ;  s.  c.  2  East  P.  C.  571,  572  ;  The 
King  V.  Bazeley,  ubi  supra;  Regina  v.  Masters,  1  Den.  C.  C.  332; 
Regina  v.  Reed,  Dears.  C.  C.  257,  261,  262. 

The  last  mentioned  decisions  made  it  necessary  to  consider  with  care 
what  more  was  necessary,  and  what  was  sufficient,  to  reduce  the  servant 
to  the  position  of  a  mere  custodian.  An  obvious  case  was  when  the 
property  was  finally  deposited  in  the  place  of  deposit  provided  by  the 
master,  and  subject  to  his  control,  although  there  was  some  nice  discus- 
sion as  to  what  constituted  such  a  place.  Regina  v.  Reed,  Dears.  C.  C. 
257.     No  doubt  a  final  deposit  of  money  in  the  till  of  a  shop  would 


SECT.  IL]  commonwealth    V.   RYAN.  765 

have  the  effect.  Waite's  case,  2  East  P.  C.  570,  571  ;  s.  c.  1  Leach 
(4th  ed.),  28,  35,  note  ;  Bull's  case,  2  East  P.  C  572  ;  s.  c.  2  Leach  (4th 
ed.),  841,  842;  The  King  v.  Bazeley,  2  East  P.  C.  571,  574  ;  s.  c.  2 
Leach  (4th  ed.),  835,  843,  note ;  Regina  v.  Wright,  Dears.  &  Bell,  431, 
44 L  But  it  is  plain  that  the  mere  physical  presence  of  the  money  there 
for  a  moment  is  not  conclusive  while  the  servant  is  on  the  spot  and  has 
not  lost  his  power  over  it ;  as,  for  instance,  if  the  servant  drops  it,  and 
instantly  picks  it  up  again.  Such  cases  are  among  the  few  in  which 
the  actual  intent  of  the  party  is  legally  important ;  for,  apart  from 
other  considerations,  the  character  in  which  he  exercises  his  control 
depends  entirely  upon  himself.  Sloan  v.  Merrill,  135  Mass.  17,  19  ; 
Jefferds  v.  Alvard,  151  Mass.  94,  95  ;  Commonwealth  v.  Drew,  153 
Mass.  588,  594. 

It  follows  from  what  we  have  said  that  the  defendant's  first  position 
cannot  be  maintained,  and  that  the  judge  was  right  in  charging  the 
jury  that,  if  the  defendant  before  he  placed  the  money  in  the  drawer 
intended  to  appropriate  it,  and  with  that  intent  simply  put  it  in  the 
drawer  for  his  own  convenience  in  keeping  it  for  himself,  that  would 
not  make  his  appropriation  of  it  just  afterwards  larceny.  The  distinc- 
tion may  be  arbitrary,  but,  as  it  does  not  affect  the  defendant  otherwise 
than  by  giving  him  an  opportunity,  whichever  offence  he  was  convicted 
of,  to  contend  that  he  should  have  been  convicted  of  the  other,  we  have 
the  less  uneasiness  in  applying  it. 

With  regard  lo  the  defendant's  second  position,  we  see  no  ground  for 
contending  that  the  detective  in  his  doings  was  a  servant  of  Sullivan, 
or  that  he  had  not  a  true  possession  of  the  money,  if  that  question  were 
open,  which  it  is  not.  The  only  question  reserved  by  the  exceptions  is 
whether  Sullivan's  ownership  of  the  money  prevented  the  defendant's 
act  from  being  embezzlement.  It  has  been  supi>osed  to  make  a  differ- 
ence if  the  right  of  possession  in  the  chattel  converted  by  the  servant 
has  vested  in  the  master  previous  to  the  delivery  to  the  servant  by  the 
third  person.  1  Eng.  Crim.  Law  Com'rs  Rep.  (1834),  31,  pi.  4.  But 
this  notion,  if  anything  more  than  a  defective  statement  of  the  decisions 
as  to  delivery  into  the  master's  barge  or  cart  (Rex  v.  Walsh,  4  Taunt. 
258,  266,  and  Regina  v.  Reed,  ubi  supra),  does  not  apply  to  a  case 
like  the  present,  which  has  been  regarded  as  embezzlement  in  England 
for  the  last  hundred  years.  Bull's  case,  stated  in  The  King  v.  Bazelej', 
2  Leach  (4th  ed.),  835,  841  :  s.  c.  2  East  P.  C.  571,  572  ;  The  King 
V.  Whittingham,  2  Leach  (4th  ed.),  912  ;  The  King  v.  Headge,  2  Leach 
(4th  ed.),  1033  ;  s.  c.  Russ.  &  Ry.  160  ;  Regina  v.  Gill,  Dears.  C.  C. 
289.  If  we  were  to  depart  from  the  English  decisions,  it  would  not  be 
in  the  way  of  introducing  further  distinctions.  See  Commonwealth  v. 
Bennett,  118  Mass.  443,  454. 

Exceptions  overruled. 


766  REX   V.   MUCKLOW.  [chap.  XII. 

SECTION   II.  (contmuecl). 
(c)  Possession  in  case  of  Finding. 

REX  V.   MUCKLOW. 
Crown  Case  Reserved.     1827. 

[Reported  1  Moody  C.  C.  160.] 

The  prisoner  was  tried  before  Mr.  Justice  Holroyd,  at  the  Spring 
assizes  for  the  county  of  Warwick,  in  the  year  1827,  upon  an  indict- 
ment which  charged  him  with  stealing  a  bill  of  exchange  for  ten 
pounds  eleven  shillings  and  sixpence,  the  first  count  stating  it  to 
be  the  property  of  John  Lea  and  others,  and  the  second  count  as  the 
property  of  one  other  James  Mucklow.  There  were  two  other  counts 
stating  it  to  be  a  warrant  for  the  payment  of  ten  pounds  eleven  shil- 
lings and  sixpence,  instead  of  a  bill  of  exchange. 

The  instrument  in  question  was  a  draft  drawn  b}-  John  Lea  and 
Sons,  on  the  day  it  bears  date,  at  Kidderminster  (where  the}'  carried 
on  business),  on  their  bankers  at  the  same  place,  and  was  as  follows  :  — 

Kidderminster,  Dec.  1.  1826. 
Messrs.  Wakeman  and  Turner,  Bankers,  Kidderminster : 

Pay  Mr.  James  Mucklow,  or  bearer,  ten  pounds  eleven  shillings  and 
sixpence. 

£10.  lis.  6cZ.  John  Lea  and  Sons. 

This  draft  was  unstamped,  and  was  written  on  the  same  sheet  of 
paper  with  a  letter,  directed  "James  Mucklow,  Saint  Martin's  Lane, 
Birmingham,"  and  was  sent  b}'  Lea  and  Sons  by  the  post  to  Birming- 
ham, which  is  eighteen  miles  from  Kidderminster. 

No  person  of  that  name  being  found  or  heard  of  to  be  living  in 
Saint  Martin's  Lane,  Birmingham,  and  the  prisoner  living  in  a  house 
about  a  dozen  yards  from  Saint  Martin's  Laini,  with  his  father,  Joseph 
Mucklow  (who  was  also  included  in  the  same  indictment,  but  ac- 
quitted), the  postman,  on  the  second  of  the  same  December,  called 
with  the  letter  at  their  house  when  they  were  out,  and  left  a  message 
that  there  was  a  letter  for  them  which  they  were  to  send  for ;  and  it 
was  in  consequence  thereof,  on  the  same  day,  delivered  to  the  father, 
and  afterwards  came  to  the  hands  of  the  prisoner  his  son,  who  appro- 
priated the  draft  to  his  own  use,  and  received  payment  of  it,  under  cir- 
cumstances proved  b}'  evidence  arising  from  the  contents  of  the  letter, 
and  otherwise,  that  satisfied  the  jury  he  knew  the  letter  and  draft  were 
not  intended  for  him,  but  for  another  person,  and  upon  which  they 
found  him  guilt}'  of  the  larceny. 

The  letter  and  draft  were  intended  for  another  Mr.  James  Mucklow, 
then  of  New  Hall  Street,  Birmingham,  to  whom  Messrs.  Lea  and  Sons 


SECT.  11.]  MERRY   V.    GREEN.  767 

were  then  indebted,  to  the  amount  of  the  sum  contained  in  the  draft, 
for  goods  sold  and  delivered  ;  but  it  was  misdirected  to  Saint  Martin's 
Lane  by  mistake,  and  sent  by  the  post,  in  consequence  of  an  appli- 
cation by  letter  by  that  James  Mucklow  to  them  for  payment,  as  the 
goods  were  sold  for  cash. 

It  was  objected  that  this  could  not  in  law  amount  to  larcen}',  as  the 
possession  of  the  letter  and  draft  had  been  voluntarily  parted  with  by 
Lea  and  Sons,  and  also  by  the  postman,  and  without  any  fraud  on  the 
part  of  the  prisoner;  and  Story's  case,  Russ.  &  Ry.  C.  C.  R.  81,  and 
Walsh's  case,  ibid.  215,  were  cited. ^ 

The  learned  judge  respited  the  judgment,  to  take  the  opinion  of  the 
judges  on  these  points. 

At  a  meeting  of  the  judges  in  Easter  Term,  1827,  this  conviction 
was  held  wrong,  on  the  ground  that  it  did  not  appear  that  the  prisoner 
had  any  animus  furandi  when  he  first  received  the  letter ;  and  a 
pardon  was  recommended.  (J^5-l-<>vl-oM_A^v^.   A'  ' 

""W-^A^    QvJo^  . 


^ 


MERRY  V.   GREEN. 
Exchequer.     1841. 

[Reported  7  Meeson  ^-  Welshy,  623.] 

Trespass  for  assault  and  false  imprisonment.  Pleas  :  first,  not  guilt}', 
whereupon  issue  was  joined  ;  second)}^,  that  the  plaintiff  had  feloniously 
stolen,  taken,  and  carried  away  a  certain  purse  filled  with  coin,  etc.,  of 
the  goods  and  chattels  of  one  Francis  Tunnicliffe,  wherefor  the 
defendants  had  given  the  plaintiff  in  charge  to  a  peace-officer,  and  the 
plaintiff  was  therefore  arrested  and  detained  a  reasonable  time,  which 
are  the  alleged  trespasses  in  the  declaration  mentioned.^  To  this  plea 
the  plaintiff"  replied  de  injuria,  whereupon  issue  was  joined. 

At  the  trial  before  Tiudal,  C.  J.,  at  the  last  Warwickshire  Assizes, 
the  following  appeared  to  be  the  facts  of  the  case  :  Messrs  Mammatt 
and  Tunnicliffe,  who  had  for  some  time  resided  together  at  Ashb^'-de- 
la-Zouch,  in  the  same  house,  and  keeping  the  same  table  and  servants, 
in  October,  1839,  broke  up  their  establishment  and  sold  their  furniture 
(which  was  parti}' joint  and  partly  separate  property)  by  public  auction. 
At  tl^at  sale  the  plaintiff,  who  was  a  shoemaker  also  residing  in  Ashby, 
became  the  purchaser,  at  the  sum  of  £1  6s.,  of  an  old  secretary  or 
bureau,  the  separate  property  of  Mr.  Tunnicliffe.  The  plaintiff  kept  the 
bureau  in  his  house,  and  on  the  18th  of  November  following,  he  sent 
for  a  boy  of  the  name  of  Garland,  a  carpenter's  apprentice,  to  do  some 
repairs  to  the  bureau.     While  Garland  was  so  engaged  he  remarked  to 

1  Two  other  objections  urged  by  the  defendant  are  omitted. 

2  The  substance  only  of  the  second  plea  is  stated. 


ygg  MERRY   V.   GREEIT.  [CHAP.  XII. 

the  plaintiff  that  he  thought  there  were  some  secret  drawers  in  the 
bureau,  and  touching  a  spring  he  pulled  out  a  drawer  which  contained 
a  quantity  of  writings.  The  plaintiff  then  discovered  another  drawer, 
in  which  was  a  purse  containing  several  sovereigns  and  other  coins,  and 
under  the  purse  a  quantity  of  bank-notes.  Of  this  property  the  plain- 
tiff took  possession,  and  telling  Garland  that  the  notes  were  bad,  he 
opened  the  purse  and  gave  him  one  of  the  sovereigns,  at  the  same 
time  charging  him  to  keep  the  matter  secret.  Garland  being  interro- 
gated bvliis  parents  how  he  came  by  the  possession  of  the  sovereign, 
the  transaction  transpired  ;  and  it  being  subsequently  discovered  that 
the  plaintiff  had  appropriated  the  property  to  his  own  use,  falsely 
alleging  that  he  had  never  had  possession  of  a  great  portion  of  it,  the 
defeiidants  (one  of  whom  was  the  solicitor  of  Mr.  Tunnicliffe)  went  with 
a  police  officer  to  the  plaintiff's  house,  took  him  into  custody,  and  con- 
veyed him  before  a  magistrate,  on  a  charge  of  felony.  The  plaintiff 
was  ultimately  discharged,  the  magistrate  doubting  whether  a  charge 
of  felony  could  be  supported.  At  the  trial,  a  witness  of  the  name  of 
Hannah  Jenkins  w^as  called  on  behalf  of  the  plaintiff,  who  deposed 
that  she  was  present  at  the  auction  and  remembered  the  piece  of  furni- 
ture in  question  being  put  up  for  sale  and  bought  by  the  plaintiff;  that 
after  it  was  sold  an  observation  was  made  by  some  of  the  bystanders 
to  the  effect  that  the  plaintiff  might  have  bought  something  more  than 
the  bureau,  as  one  of  the  drawers  would  not  open,  upon  which  the 
auctioneer  said,  "  vSo  much  the  better  for  the  buyer;"  adding,  "I 
have  sold  it  with  its  contents,  and  it  is  his."  This  statement  was  op- 
posed by  the  evidence  of  the  auctioneer,  who  stated,  on  cross-exami- 
nation by  the  defendant's  counsel,  that  there  was  one  drawer  which 
would  not  open,  and  that  what  he  had  said  was,  "That  is  of  no 
consequence  ;  I  have  sold  the  secretary  and  not  its  contents."  It  did 
not  appear  that  any  person  knew  that  the  bureau  contained  anything 
whatever. 

The  learned  chief  justice,  in  summing  up,  told  the  jury  that,  as  the 
property  had  been  delivered  to  the  plaintiff  as  the  purchaser,  he 
thought  there  had  been  no  felonious  taking ;  and  left  to  them  the  ques- 
tion of  damages  only,  reserving  leave  for  the  defendant  to  move  to 
enter  a  nonsuit\  The  jury  found  a  verdict  for  the  plaintiff  with  £50_ 
damages.  \ 

In  Michaelmas  Term,  Whitehurst  obtained  a  rule  to  show  cause  why 
the  verdict  should  not  be  set  aside  and  a  nonsuit  entered  or  a  new 
trial  had.^ 

Parke,  B.  In  this  case  there  was  clearly  no  bailment,  because  there 
was  no  intention  to  part  with  the  property  in  question.  It  amounts 
therefore,  only  to  a  finding,  and  comes  within  the  modern  decisions  on 

1  Arguments  of  counsel  are  omitted.     During  the  argument  for  the  plaintiff  Parke, 

B.,  said  :  "  Suppose  a  person  finds  a  cheque  in  the  street,  and  in  the  first  instance  takes 
it  up  merely  to  see  what  it  is  :  if  afterwards  he  cashes  it,  and  appropriates  the  monej 
to  his  own  use,  that  is  a  felony,  though  he  is  a  mere  finder  till  he  looks  at  it."  —  Ed. 


SECT.  II.]  MERKY   V.    GREEN.  769 

that  subject.  It  is  a  matter  fit  for  our  serious  consideration,  and  we 
will  speak  to  the  chief  justice  before  we  deliver  our  judgment.  No 
doubt  the  same  evidence  is  necessary  in  the  present  case  as  would  be 
required  to  support  an  indictment.  Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by  — 

Parke,  B.  My  Lord  Chief  Justice  thought  in  this  case  that,  even 
assuming  the  facts  of  which  evidence  was  given  by  the  defendant  to 
be  true,  the  taking  of  the  purse  and  abstracting  its  contents  was  not  a 
larceny ;  and  that  is  the  question  which  he  reserved  for  the  opinion  of 
the  court,  giving  leave  to  move  to  enter  a  nonsuit.  After  hearing  the 
argument,  we  have  come  to  the  conclusion  that,  if  the  defendant's  case 
was  true,  there  was  sufficient  evidence  of  a  larceny  by  the  plaintiff;  but 
we  cannot  direct  a  nonsuit,  because  a  fact  was  deposed  to  on  the  part 
of  the  plaintiff  which  ought  to  have  been  left  to  the  jury,  and  which,  if 
believed  by  them,  would  have  given  a  colorable  right  to  him  to  the  con- 
tents of  the  secretary  as  well  as  to  the  secretary  itself;  namely,  the 
declaration  of  the  auctioneer  that  he  sold  all  that  the  piece  of  furniture 
contained  with  the  article  itself;  and  then  the  abstraction  of  the  con- 
tents could  not  have  been  felonious.  There  must  therefore  be  a  new 
trial,  and  not  a  nonsuit. 

But  if  we  assume,  as  the  defendant's  case  was,  that  the  plaintiff  had 
express  notice  that  he  was  not  to  have  any  title  to  the  contents  of  the 
secretary  if  there  happened  to  be  anything  in  it,  and  indeed  without 
such  express  notice,  if  he  had  no  ground  to  believe  that  he  had  bought 
the  contents,  we  are  all  of  opinion  that  there  was  evidence  to  make 
out  a  case  of  larceny. 

It  was  contended  that  there  was  a  deliver}'  of  the  secretar}'  and  the 
money  in  it  to  the  plaintiff  as  his  own  property',  which  gave  him  a 
lawful  possession,  and  that  his  subsequent  misappropriation  did  not 
constitute  a  felony.  But  it  seems  to  us  that,  though  there  was  a  deliv- 
ery of  the  secretary,  and  a  lawful  propert}-  in  it  thereby  vested  in  the 
plaintiff,  there  was  no  delivery  so  as  to  give  a  lawful  possession  of  the 
purse  and  money.  The  vendor  had  no  intention  to  deliver  it,  nor 
vendee  to  receive  it ;  both  were  ignorant  of  its  existence  ;  and  when 
the  plaintiff  discovered  that  there  was  a  secret  drawer  containing  the 
purse  and  mone3%  it  was  a  simple  case  of  finding,  and  the  law  applica- 
ble to  all  cases  of  finding  applies  to  this. 

The  old  rule,  that  'Mf  one  lose  his  goods  and  another  find  them, 
though  he  convert  them  animo  ficrancli  to  his  own  use,  it  is  no  larceny-," 
has  undergone  in  more  recent  times  some  limitations  ;  one  is,  that  if  the 
finder  knows  who  the  owner  of  the  lost  chattel  is,  or  if,  from  an}^  mark 
upon  it  or  the  circumstances  under  which  it  is  found,  the  owner  could 
be  reasonably  ascertained,  then  the  fraudulent  conversion  animo 
furandi  constitutes  a  larceny.  Under  this  head  fall  the  cases  where 
the  finder  of  a  pocket-book  with  bank-notes  in  it  with  a  name  on  them 
converts  them  animo  furandi ;  or  a  hackne}'  coachman  who  abstracts 

49 


770 


EEGINA   V.    THUKBORN.  [CIIAP.  XII. 


the  contents  of  a  parcel  which  has  been  left  in  his  coach  by  a  pas- 
senger, whom  he  could  easily  ascertain  ;  or  a  tailor  who  finds  and  ap- 
plies to  his  own  use  a  pocket-book  in  a  coat  sent  to  hiui  to  repair  by  a 
customer,  whom  he  must  know  ;  all  these  have  been  held  to  be  cases  of 
larceny ;  and  the  present  is  an  instance  of  the  same  kind  and  not  dis- 
tinsuish'able  from  them.  It  is  said  that  the  offence  cannot  be  larceny 
unless  the  taking  would  be  a  trespass,  and  that  is  true  ;  but  if  the 
finder,  from  the  circumstances  of  the  case,  must  have  known  who  was 
the  owner,  and  instead  of  keeping  the  chattel  for  him,  means  from  the 
first  to  appropriate  it  to  his  own  use,  he  does  not  acquire  it  by  a  rightful 
title,  and  the  true  owner  might  maintain  trespass ;  and  it  seems  also 
from  Wynne's  case  that  if,  under  the  like  circumstances,  he  acquire 
possession  and  mean  to  act  honestly,  but  afterwards  alter  his  mind 
and  open  the  parcel  with  intent  to  embezzle  its  contents,  such  unlawful 
act  would  render  him  guilty  of  larceny. 

We  therefore  think  that  the  rule  must  be  absolute  for  a  new  trial,  in 
order  tliat  a  question  may  be  submitted  to  the  jury  whether  the  plain- 
tiff had  reason  to  believe  that  he  bought  the  contents  of  the  bureau, 
if  any,  and  consequently  had  a  color  of  right  to  the  property.^ 

Hide  absolute  for_a  new  trial. 

~   '      ~     •  Q 


REGINA   V.   THURBORN. 
Crown  Case  Reserved.     1849. 

[Reported  1  Denison  C.  C.  387.2] 

The  prisoner  was  tried  before  Parke,  B.,  at  the  summer  assizes  for 
Huntingdon,  1848,  for  stealing  a  bank-note. 

He  found  the  note,  which  had  been  accidentally  dropped  on  the  high 
road.  There  was  no  name  or  mark  on  it,  indicating  who  was  the 
owMier,  nor  were  there  any  circumstances  attending  the  finding  which 
would  enable  him  to  discover  to  whom  the  note  belonged  when  he 
picked  it  up ;  nor  had  he  anj*  reason  to  believe  that  the  owner  knew 
where  to  find  it  again.  The  prisoner  meant  to  appropriate  it  to  his 
own  use,  when  he  picked  it  up.  The  day  after,  and  before  he  had  dis- 
posed of  it,  he  was  informed  that  the  prosecutor  was  the  owner,  and 
had  dropped  it  accidentally  ;  he  then  changed  it.  and  appropriated  the 
money  taken  to  his  own  use.  The  jury  found  that  he  had  reason  to 
believe,  and  did  believe  it  to  be  the  prosecutor's  property,  before  he 
thus  changed  the  note. 

The  learned  Baron  directed  a  verdict  of  guilty,  intimating  that  he 

1  Ace.  Cartwright  v.  Green,  8  Ves.  40.5  ;  Robinson  r.  State,  11  Tex.  App  403  See 
Dnrfee  v.  Jones,  11  K.  I.  588  ;  s.  c.  1  Gray's  Cases  on  Prop  380.  —  Ed. 

2  This  case  was  reported  as  Reg.  v.  Wood,  3  Cox  C.  C.  453.  —  Ed. 


SECT.  II.]  .     REGINA    V.    THURBORN.  771 

should  reserve  the  case  for  further  consideration.  Upon  conferring 
with  Maule,  J.,  the  learned  Baron  was  of  opinion  that  the  original 
taking  was  not  felonious,  and  that  in  the  subsequent  disposal  of  it 
there  was  no  taking,  and  he  therefore  declined  to  pass  sentence,  and 
ordered  the  prisoner  to  be  discharged,  on  entering  into  his  own  recog- 
nizance to  appear  when  called  upon. 

On  the  30th  of  April,  a.  u.  18-19,  the  following  judgment  was  read 
by  Parke,  B  :  — 

A  case  was  reserved  by  Parke,  B.,  at  the  last  Huntingdon  Assizes. 
It  was  not  argued  bj-  counsel,  but  the  judges  who  attended  the  sitting 
of  the  court  after  Michaelmas  Term,  1848,  namelj-,  the  L.  C.  Baron, 
Patteson,  J.,  Rolfe,  B.,  Cress  well,  J.,  Williams,  J.,  Coltman,  J.,  and 
Parke,  B.,  gave  it  much  consideration  on  account  of  its  importance, 
and  the  frequency  of  the  occurrence  of  cases  in  some  degree  similar  in 
the  administration  of  the  criminal  law,  and  the  somewhat  obscure  state 
of  the  authorities  upon  it.     [The  learned  Baron  here  stated  the  case.] 

In  order  to  constitute  the  crime  of  larcen}-,  tliere  must  be  a  taking  of 
the  chattel  of  another  mrimo  furancU,  and  against  the  will  of  the 
owner.  This  is  not  the  full  definition  of  larceny,  but  so  much  only  of 
it  as  is  necessary-  to  be  referred  to  for  the  present  purpose  ;  hy  the  term 
animo  furandi  is  to  be  understood  the  intention  to  take,  not  a  partic- 
ular temi^orary,  but  an  entire  dominion  over  the  chattel,  without  a 
color  of  right.  As  the  rule  of  law  founded  on  justice  and  reason  is 
that  actus  non  facit  reiwi  nisi  me7is  sit  rea,  the  guilt  of  the,  accused 
must  depend  on  the  circumstances  as  the}-  appear  to  him,  and  the  crime 
of  larceny-  cannot  be  committed  unless  the%oods  taken  appear  to  have 
an  owner,  and  the  party  taking  must  know  or  believe  that  the  taking  is 
against  the  will  of  that  owner. 

In  the  earliest  times  it  was  held  that  chattels  which  were  apparently 
without  an  owner,  "  nullius  in  bonis,"  could  not  be  the  subject  of 
larcen}'.  Stamford,  one  of  the  oldest  authorities  on  criminal  law,  who 
was  a.judge  in  the  reign  of  Philip  and  Mar^',  says,  B.  1  ch.  16,  "  Treas- 
ure trove,  wreck  of  the  sea,  waif  or  stra}-,  taken  and  carried  away  is 
not  felon}'."  "Quia  dominus  rerum  non  apparet,  ideo  cujus  sunt 
incertum  est."  For  this  he  quotes  Fitz.  Abr.  Coron.  p.  187,  265  ;  these 
passages  are  taken  from  22  Ass.  99  ;  22  Ed.  III.,  and  mention  onl}- 
"  treasure  trove,"  "wreck,"  and  "waif,"  and  Fitz.  sajs  the  punish- 
ment for  taking  such  is  not  the  loss  of  life  or  limb.  The  passage  in  3 
Inst.  108,  goes  beyond  this;  Lord  Coke  mentions  three  circumstances 
as  material  in  larcenj- :  first,  the  taking  must  be  felonious,  which  he 
explains  ;  secondly,  it  must  be  an  actual  taking,  which  he  also  ex- 
plains ;  and  thirdly,  "  it  is  not  b}-  trover  or  finding  ;  "  he  then  proceeds 
as  follows:  "If  one  lose  his  goods  and  another  find  them,  though  he 
convert  them  'animo  furandi,'  to  his  own  use,  it  is  not  larceny,  for  the 
first  taking  is  lawful.  So  if  one  find  treasure  trove,  or  waif  or  stray 
(here  '  wreck '  is  omitted  and  '  stra}- '  introduced),  and  convert  them  7(t 
supra,  it  is  no  larceny-,  both  in  respect  of  the  finding,  and  that  '  dom- 


772  EEGINA   V.   THURBORN".  [cHAP.  XII. 

inns  rerum  non  apparet.'"  The  only  authority  given  is  that  before 
mentioned  :  22  Ass.  99  ;   22  Ed.  III. 

Now  treasure  trove  and  waif  seem  to  be  subject  to  a  different  con- 
struction from  goods  lost.  Treasure  trove  is  properly  money  supposed 
to  have  been  hidden  by  some  owner,  since  deceased,  the  secret  of  the 
deposit  having  perished,  and  therefore  belongs  to  the  Crown  ;  as  to 
waif,  the  original  owner  loses  his  right  to  the  property  by  neglecting  to 
pursue  the  thief.  The  very  circumstances  under  which  these  are 
assumed  to  have  been  taken  and  converted  shew  that  they  could  not 
be  taken  from  any  one,  there  being  no  owner.  Wreck  and  stray  are 
not  exactly  on  the  same  footing  as  treasure  trove  and  waif;  wreck  is 
not  properly  so  called  if  the  real  owner  is  known,  and  it  is  not  for- 
feited until  after  a  year  and  a  day. 

The  word  ''  estray  "  is  used  in  the  books  in  different  senses,  as  may 
be  seen  in  Com.  Dig.  Waife,  F.,  wliere  it  is  used  in  the  sense  of  cattle 
forfeited  after  being  in  a  manor  one  year  and  one  day  without  chal- 
lenge, after  being  proclaimed,  where  the  property  vests  in  the  Crown, 
or  its  grantee  of  estrays ;  and  also  of  cattle  straying  in  the  manor, 
before  they  are  so  forfeited.  Blackstone,  vol.  2,  5G1,  Stephens'  ed., 
defines  estrays  to  be  "  such  valuable  animals  as  are  found  wandering 
in  any  manor  or  lordship,  and  no  man  knoweth  the  owner  of  them,  iu 
which  case  the  law  gives  them  to  the  Sovereign." 

In  the  passage  in  Stamford  no  doubt  the  word  is  used,  not  exclu- 
sively in  the  former  sense,  but  generally  as  to  all  stray  cattle  not 
seized  by  the  lord.  Now  treasure  trove  and  waif,  properly  so  called, 
are  clearly  "  bona  vacantia,  nullius  in  bonis,"  and  but  for  the  preroga- 
tive would  belong  to  the  first  finder  absolutel}'. 

''  Cum  igitur  thesaurus  in  nullius  bonis  sit,  et  antiquitus  de  jure 
naturali  esset  inventoris,  nunc  de  jure  gentium  efficitur  ipsius  domini 
regis."  Bracton,  Coron.  L.  3,  c.  3,  p.  126.  Wreck  and  stray,  in  the 
sense  we  ascribe  to  those  words,  are  not  in  the  same  situation,  for  the 
right  of  the  owner  is  not  forfeited  until  the  end  of  a  year  and  a  day ; 
but  Lord  Coke,  in  Constable's  case,  5  Rep.  108  a,  treats  wreck  also  as 
"nullius  in  bonis;"  and  estrays,  "animalia  vagantia,"  he  terms 
"  vacantia,"  because  none  claims  the  property.  Wreck  and  cstra}', 
however,  before  seizure,  closely  resemble  goods  lost,  of  which  the 
owner  has  not  the  actual  possession,  and  afford  an  analogy  to  which 
Lord  Coke  refers  in  the  passage  above  cited. 

Whether  Lord  Coke  means,  wliat  the  language  at  first  siglit  imports, 
that  under  no  circumstances  could  the  taker  of  goods  really  lost  and 
found  be  guilty  of  larceny,  is  not  clear ;  but  the  passage  is  a  complete 
and  satisfactory  authority  that  a  person  who  finds  goods  which  are 
lost  may  convert  them  animo  furandi  under  some  circumstances  so  as 
not  to  be  guilty  of  larceny.  The  two  reasons  assigned  by  him  are,  thnt 
the  person  taking  has  a  right  in  respect  of  the  finding,  and  also  that 
they  are  apparently  without  an  owner,  "  dominus  rerum  non  apparet,'" 
an  owner,  "  or  "  the  owner  does  not  appear. 


SECT.  II.]  EEGINA   V.   THURBORN.  773 

The  first  of  these  reasons  has  led  to  the  opinion  that  the  real  mean- 
ing of  Lord  Coke  was  not  that  every  finder  of  lost  goods  who  takes 
animo  furandi  is  not  guilty  of  felony,  but  that  if  one  finds,  and  inno- 
cently takes  possession,  meaning  to  keep  for  the  real  owner,  and  after- 
wards changes  his  mind  and  converts  to  his  own  use,  he  is  not  a  felon, 
on  the  principle  that  Lord  Coke  had  previously  laid  down,  viz.,  that 
"  the  intent  to  steal  must  be  when  the  thing  stolen  cometh  to  his 
possession,  for  if  he  hath  the  possession  of  it  once  lawfully,  though  he 
hath  aninmm  furandi  afterwards,  and  carryeth  it  awa}-  afterwards,  it 
is  no  larceny  ;  "  and  Lord  Coke  also  cites  Glanville,  "  Furtum  non  est 
ubi  initium  habet  detentionis  per  dominium  rei." 

It  is  said  therefore  that  the  case  of  finding  is  an  instance  of  this,  — 
beginning  with  lawful  title,  which  consequently  cannot  become  a  felony 
b}-  subsequent  conversion  ;  but  if  it  be  originally  taken,  not  for  the  true 
owner,  but  with  intent  to  appropriate  it  to  his  own  use,  it  is  a  felony  ; 
and  of  this  opinion  the  commissioners  for  the  amendment  of  the  crimi- 
nal law  appear  to  have  been,  as  stated  in  their  first  report. 

This  opinion  appears  to  us  not  to  be  well  founded  ;  for  Lord  Coke 
puts  the  case  of  lost  goods  on  the  same  footing  as  waif  and  treasure 
trove,  which  are  really  bona  vacantia,  goods  without  an  owner,  and 
with  respect  to  which  we  apprehend  that  a  person  would  not  be  guilty 
of  larceny,  though  he  took  originally  animo  furandi,  that  is,  with  the 
intent,  not  to  take  a  partial  or  temporary  possession,  but  to  usurp  the 
entire  dominion  over  them  ;  and  the  previous  observations  have  refer- 
ence to  cases  in  which  the  original  possession  of  the  chattel  stolen  is 
with  the  consent  of  or  by  contract  with  the  owner.  But  any  doubt  on 
this  question  is  removed  by  what  is  said  by  Lord  Hale,  1  P.  C.  506  : 
"  If  A.  find  the  purse  of  B.  in  the  highway  and  take  and  carry  it  away, 
and  hath  all  the  circumstances  that  may  prove  it  to  be  done  animo 
furandi,  as  denying  or  secreting  it,  yet  it  is  not  felony.  The  like  in 
case  of  taking  of  a  wreck  or  treasure  trove,"  (citing  22  Ass.  99),  "  or  a 
waif  or  stray."  Lord  Hale  clearly  considers  that  if  lost  goods  are 
taken  originally  animo  furandi,  in  the  sense  above  mentioned,  the 
taker  is  not  a  felon  ;  and  when  it  is  considered  that  by  the  common 
law,  larceny  to  the  value  of  above  twelve  pence  was  punishable  by 
death,  and  that  the  quality  of  the  act  in  taking  animo  furandi  goods 
from  the  possession  of  the  owner,  differs  greatly  from  that  of  taking 
them  when  no  longer  in  his  possession,  and  quasi  derelict,  in  its 
injurious  effect  on  the  interests  of  society  (the  ti'ue  ground  for  the 
punisliment  of  crimes),  it  is  not  surprising  that  such  a  rule  should  be 
established,  and  it  is  founded  in  strict  justice  ;  for  the  cases  of  abstrac- 
tion of  lost  property  being  of  rare  occurrence,  when  compared  witli 
the  frequent  violations  of  property  in  the  possession  of  an  owner,  there 
was  no  need  of  so  severe  a  sanative,  and  the  civil  remedy  might  be 
deemed  amply  sufficient.  Hawkins,  B.  1,  ch.  19,  s.  3,  Curwood's  ed., 
says  :  "  Our  law,  which  punishes  all  theft  with  death,  if  the  thing  stolen 
be"^  above  the  value  of  twelve  pence,  and  with  corporal  punishment  if 


r— I  IIEGINA   V.   THURBORN.  [CHAP.  XII. 

under,  rather  chooses  to  deal  with  them  (e.g.,  cases  of  finding,  and 
of  appropriating  by  bailees)  as  civil  than  criminal  offences,  perhaps 
for  this  reason,  in  the  case  of  goods  lost,  because  the  party  is  not  much 
ao-crrieved  where  nothing  is  taken  but  what  he  had  lost  before."  It 
cannot  indeed  be  doubted  that  if  at  this  day  the  punishment  of  death 
was  assigned  to  larceny  and  usually  carried  into  effect,  the  appropria- 
tion of  lost  goods  would  never  have  been  held  to  constitute  that  offence  ; 
and  it  is  ce'i'tain  that  the  alteration  of  punishment  cannot  alter  the 
definition  of  the  offence.  To  prevent,  however,  the  taking  of  goods 
from  being  larceny,  it  is  essential  that  they  should  be  presumably  lost; 
tliat  is,  that  they  should  be  taken  in  such  a  place  and  under  such  cir- 
cumstances as  that  the  owner  would  be  reasonably  presumed  by  the 
taker  to  have  abandoned  them,  or  at  least  not  to  know  where  to  find 
them.  Therefore  if  a  horse  is  found  feeding  on  an  open  common  or  on 
the  side  of  a  public  road,  or  a  watch  found  apparently  hidden  in  a  hay- 
stack, the  taking  of  these  would  be  larceny,  because  the  taker  had  no 
rio-ht  to  presume  that  the  owner  did  not  know  where  to  find  them  ;  and 
consequently  had  no  right  to  treat  them  as  lost  goods.  In  the  present 
case  there  is  no  doubt  that  the  bank-note  was  lost,  the  owner  did  not 
know  where  to  find  it,  the  prisoner  reasonably  believed  it  to  be  lost,  he 
had  no  reason  to  know  to  whom  it  belonged  ;  and  therefore,  though  he 
took  it  with  the  intent  not  of  taking  a  partial  or  temporary,  but  the 
entire  dominion  over  it,  the  act  of  taking  did  not,  in  our  opinion,  con- 
stitute the  crime  of  larceny.  Whether  the  subsequent  appropriation  of 
it  to  his  own  use  by  changing  it,  with  the  knowledge  at  that  time  that 
it  belonged  to  the  prosecutor,  does  amount  to  that  crime,  will  be  after- 
wards considered.  ^ 

It  appears,  however,  that  goods  wliich  do  fall  witliin  tlie  category  of 
lost  goods,  and  which  the  taker  justly  believes  to  have  been  lost,  may 
be  taken  and  converted  so  as  to  constitute  the  crime  of  larceny,  when 
the  party  finding  may  be  presumed  to  know  the  owner  of  them,  or 
there  is  any  mark  upon  them,  presumably  known  by  him,  by  which  the 
owner  can  be  ascertained.  Whetlier  this  is  a  qualification  introduced 
in  modern  times  or  which  always  existed,  we  need  not  determine.  It 
may  have  proceeded  on  the  construction  of  the  reason  of  the  old  rule, 
"quia  dorainus  rerum  non  apparet,  ideo  cujus  sunt  incertum  est,"  and 
the  rule  is  held  not  to  apply  when  it  is  certain  who  is  the  owner ;  but 
the  authorities  are  many,  and  we  believe  this  qualification  has  been 
generally  adopted  in  practice,  and  we  must  therefore  consider  it  to  be 
the  established  law.  There  are  many  reported  cases  on  this  subject, 
some  where  the  owner  of  the  goods  may  be  presumed  to  be  known, 
from  the  circumstances  under  which  they  are  found ;  amongst  these  are 
mentioned  the  cases  of  articles  left  in  hackney  coaches  by  passengers, 
which  the  coachman  appropriates  to  his  own  use,  or  a  pocket-book, 
found  in  a  coat  sent  to  a  tailor  to  be  repaired,  and  abstracted  and 
opened  by  him.  In  these  cases  the  appropriation  has  been  held  to  be 
larceny.     Perhaps   these   cases   might   be    classed    amongst   those  in 


SECT.  II.]  .     REGIXA   V.    THURBORN.  775 

wliicli  the  taker  is  not  justified  in  concluding  that  the  goods  were  lost, 
because  there  is  little  doubt  he  must  have  believed  that  the  owner 
would  know  where  to  find  them  again,  and  he  had  no  pretence  to  con- 
sider them  abandoned  or  derelict.  Some  cases  appear  to  have  been 
decided  on  the  ground  of  bailment  determined  by  breaking  bulk, 
which  would  constitute  a  trespass,  as  Wynne's  case.  Leach  C.  C. 
4G0,  but  it  sterns  difficult  to  apply  that  doctrine  which  belongs  to  bail- 
ment, where  a  special  property  is  acquired  by  contract,  to  any  case  of 
goods  merely  lost  and  found,  where  a  special  property  is  acquired  by 
finding. 

The  appropriation  of  goods  by  the  finder  has  also  been  held  to  be 
larceny  where  the  owner  could  be  found  out  by  some  mark  on  them,  as 
in  the  case  of  lost  notes,  checks,  or  bills,  with  the  owner's  name  upon 
them. 

This  subject  was  considered  in  the  case  of  Merr}'  v.  Green,  7  M.  & 
W.  623,  in  which  the  Court  of  Exchequer  acted  upon  the  authority  of 
these  decisions  ;  and  in  the  argument  in  that  case  difficulties  were  sug- 
gested, whether  the  crime  of  larceny  could  be  connnitted  in  the  case  of 
a  marked  article,  a  check  for  instance,  with  the  name  of  the  owner 
on  it,  where  a  person  originally  took  it  up,  intending  to  look  at  it  and 
see  who  was  the  owner,  and  then,  as  soon  as  he  knew  whose  it  was, 
took  It  animo  ftirandi  ;  as,  in  order  to  constitute  a  larceny,  the  taking- 
must  be  a  trespass  ;  and  it  was  asked  when  in  such  a  case  the  trespass 
was  committed.  In  answer  to  that  inquiry  the  dictum  attributed  to 
me  in  the  Report  was  used  :  that  in  such  a  case  the  trespass  must  be 
taken  to  have  been  committed,  not  when  he  took  it  up  to  look  at  it 
and  see  whose  it  was,  but  afterwards,  when  he  appropriated  it  to  his 
own  use  animo  furancU. 

It  is  quite  a  mistake  to  suppose,  as  Mr.  Greaves  has  done  (vol.  2, 
c.  14),  that  I  meant  to  lay  down  the  proposition  in  the  general  terms 
contained  in  the  extract  from  the  Report  of  the  case  in  7  M.  &  W., 
which,  taken  alone,  seems  to  be  applicable  to  every  case  of  finding 
unmarked,  as  well  as  marked  property.  It  was  meant  to  apply  to  the 
latter  only. 

The  result  of  these  authorities  is,  that  the  rule  of  law  on  this  sub- 
ject seems  to  be,  that  if  a  man  find  goods  that  have  been  actually  lost, 
or  are  reasonably  supposed  by  him  to  have  been  lost,  and  appropriates 
them  with  intent  to  take  the  entire  dominion  over  them,  really  believ- 
ing when  he  takes  them  that  the  owner  cannot  be  found,  it  is  not 
larceny.  But  if  he  takes  them  with  the  like  intent,  though  lost,  or 
reasonably  supposed  to  be  lost,  but  reasonably  believing  that  the  owner 
can  be  found,  it  is  larceny. 

In  applying  this  rule,  as  indeed  in  the  application  of  all  fixed  rules, 
questions  of  some  nicety  may  arise,  but  it  will  generally  be  ascertained 
whether  the  person  accused  had  reasonable  belief  that  the  owner  could 
be  found,  by  evidence  of  his  previous  acquaintance  with  the  ownei'ship 
of  the  particular  chattel,  the  place  where  it  is  found,  or  the  nature  of 


776 


KEGINA   V.    PRESTON.  [CIIAP.  XII. 


the  marks  upon  it.  In  some  cases  it  would  be  apparent,  in  others 
appear  only  after  examiualiou. 

It  would  probably  be  presumed  that  the  taker  would  examine  the 
chattel  as  an  honest  man  ought  to  do,  at  the  time  of  taking  it,  and  if 
he  did  not  restore  it  to  the  owner,  the  jury  might  conclude  that  he  took 
it,  when  he  took  complete  possession  of  it,  animo  furandi.  The  mere 
taking  it  up  to  look  at  it  would  not  be  a  taking  possession  of  the 
chattel. 

To  apply  these  rules  to  the  present  case:  the  first  taking  did  not 
amount  to  larceny,  because  the  note  was  really  lost,  and  there  was  no 
mark  on  it  or  other  circumstance  to  indicate  then  who  was  the  owner, 
or  that  he  might  be  found,  nor  any  evidence  to  rebut  the  presumption 
that  would  arise  from  the  finding  of  the  note  as  proved,  that  he 
believed  the  owner  could  not  be  found,  and  therefore  the  original 
taking  Avas  not  felonious  ;  and  if  the  prisoner  had  changed  the  note  or 
otherwise  disposed  of  it  before  notice  of  the  title  of  the  real  owner,  he 
clearly  would  not  have  been  punishable ;  but  after  the  prisoner  was  in 
possession  of  the  note,  the  owner  became  known  to  him,  and  he  then 
appropriated  it  animo  furandi,  and  the  point  to  be  decided  is  whether 
that  was  a  felony. 

Upon  this  question  we  have  felt  considerable  doubt. 

If  he  had  taken  the  chattel  innocently,  and  afterwards  appropriated 
it  without  knowledge  of  the  ownership,  it  would  not  have  been  larceny  ; 
nor  would  it,  we  think,  if  he  had  done  so,  knowing  who  was  the  owner, 
for  he  had  the  lawful  possession  in  both  cases,  and  the  conversion 
would  not  have  been  a  trespass  in  either.  But  here  the  original  taking 
was  not  innocent  in  one  sense,  and  the  question  is  does  that  make  a 
difference?  "We  think  not;  it  was  dispunishable  as  we  have  already 
decided,  and  though  the  possession  was  accompanied  by  a  dishonest 
intent,  it  was  still  a  lawful  possession  and  good  against  all  but  the  real 
owner,  and  the  subsequent  conversion  was  not  therefore  a  trespass  in 
this  case  more  than  the  others,  and  consequentl}-  no  larcen}'. 

We  therefore  think  that  the  conviction  was  wrong.  ^ 


REGINA  V.   PRP:ST0N. 
Crown  Case  Reserved.     1851. 

[Reported  5   Cox  C.  C.  390.] 

The  following  case  was  reserved  by  the  Recorder  of  Birmingham  :  — 
Michael  Preston  was  tried  before  me,  at  the  last  Michaelmas  Ses- 

1  Ace.  Reg.  V.  Scully,  1  Cox  C.  C.  189;  Eeg.  v.  Dixon,  7  Cox  C.  C  35;  Reg. 
V.  Shea,  7  Cox  C.  C.  147;  Reg.  v.  Christopher,  8  Cox  C.  C.  91  ;  Reg.  v.  Clyde,  11 
Cox  C.  C.  103;  Reg.  v.  Deaves,  11  Cox  C.  C.  227;  Bailey  v.  State,  52  Ind.  462; 
Wolfington  1-.  State,  53  Ind.  343  ;  State  v.  Dean,  49  la.  73.  —  Ed. 


SECT.  IL]  REGINA   V.    PKESTON.  777 

sions  for  the  borough  of  Birmingham,  upon  an  indictment  which 
charged  him  in  the  1st  count  with  stealing,  and  in  the  2d  count 
with  feloniously  receiving,  a  £50  note  of  the  Bank  of  England.  It 
was  proved  that  the  prosecutor,  Mr.  Collis,  of  Birmingham,  received 
the  note  in  question,  with  others,  on  Saturday,  the  18th  of  October, 
from  a  Mr.  Ledsam,  who,  before  he  handed  it  to  the  prosecutor,  wrote 
on  the  back  of  it  the  words,  "  Mrs.  Collis,"  It  was  further  proved  that 
Collis  was  a  very,  unusual  surname  in  Birmingham,  and  almost,  if  not 
quite  confined  to  the  family  of  the  prosecutor,  a  well  known  master 
manufacturer.  About  four  or  five  o'clock  the  same  afternoon  the  prose- 
cutor accidental!}'  dropped  the  notes  in  one  of  the  public  streets  of 
Birmingham,  and  immediately  gave  information  of  his  loss  to  the 
police,  and  also  caused  handbills,  offering  a  reward  for  their  recovery, 
to  be  printed  and  circulated  about  the  town.  On  Monday-  the  20th, 
about  three  o'clock  in  the  afternoon,  the  prisoner,  who  had  been 
living  in  Birmingham  fourteen  jears,  and  keeping  a  shop  there,  went 
to  one  of  the  police  stations,  and  inquired  of  a  policeman  if  there  was 
not  a  reward  publicly  offered  for  some  notes  that  had  been  lost,  and 
whether  their  numbers  were  known,  stating  that  he  was  as  likely  as 
any  person  to  have  them  offered  to  him,  and  if  he  heard  anything  of 
them  he  would  let  the  police  know.  He  also  inquired  if  the  policeman 
could  give  him  a  description  of  the  person  who  was  supposed  to  have 
found  them,  and  the  policeman  gave  him  a  written  description  of  such 
person,  who  w'as  described  therein  as  a  tall  man.  Afterwards,  between 
three  and  four  o'clock  on  the  same  afternoon,  the  prisoner  went  to  the 
shop  of  Mr.  Nickley,  in  Birmingham,  and,  after  inquiring  if  he 
(Nickley)  had  heard  of  the  loss  of  a  £50  note,  stated  that  he  (the 
prisoner)  thought  he  knew  parties  who  had  found  one  ;  and  he  asked 
Nickley  whether  the  finders  would  be  justified  in  appropriating  it  to 
their  own  use,  to  which  Nickley  replied  that  they  would  not.  At 
four  o'clock  the  same  afternoon  the  prisoner  changed  the  note,  and 
was,  later  in  the  same  evening,  found  in  possession  of  a  consider- 
able quantity  of  gold,  with  regard  to  which  he  gave  several  false 
and  inconsistent  accounts.  He  was  then  taken  into  custod}',  and 
on  the  following  da^-,  October  21,  stated  to  a  constable  that  when 
he  was  alone  in  his  own  house  on  Sunda}',  a  tall  man,  whom  he  did 
not  know,  came  in  and  offered  him  a  £50  note,  for  which  he  (the 
prisoner)  gave  him  fifty  sovereigns.  The  police  officers  previous!}' 
told  the  prisoner  that  thej'  were  in  possession  of  information  that  one 
Tay,  who  was  known  to  the  prisoner,  had  found  the  note,  but  Tay  was 
not  called,  nor  was  an}'  evidence  given  as  to  the  part  (if  any)  which 
he  took  in  the  transaction.  Upon  these  facts  I  directed  the  jury  that 
the  important  question  for  them  to  consider  was,  at  what  time  the 
prisoner  first  resolved  to  appropriate  the  note  to  his  own  use.  If  they 
arrived  at  the  conclusion  that  the  prisoner  either  knew  the  owner,  or 
reasonably  believed  that  the  owner  could  be  found  at  the  time  when  he 
first  resolved  to  appropriate  it  to  his  own  use,  that  is,  to  exercise  com- 


778  EEGINA   V.   PRESTON.  [CHAP.  XII. 

plete  dominion  over  it,  then  he  was  guilty  of  larceny.  If,  on  the  other 
hand,  he  bad  formed  the  resolution  of  appropriating  it  to  bis  own  use 
before  he  knew  the  owner,  or  had  a  reasonable  belief  that  the  owner 
could  be  found,  then  he  was  not  guilty  of  larceny.  I  also  told  the  jury 
that  there  was  no  evidence  of  any  other  person  having  possession  of  the 
note  after  it  was  lost,  except  the  prisoner,  bnt  that  even  though  the 
prisoner  might  not  be  the  original  finder,  still,  if  he  were  the  first 
person  who°acted  dishonestly  with  regard  to  it,  and  if  he  began  to  act 
dishonestly  by  forming  the  resolution  to  keep  it  for  his  own  use  after 
he  knew  the  owner,  or  reasonably  believed  that  the  owner  could  be  found, 
he  would  be  guilty  of  larceny.  The  jury  found  the  prisoner  guilty 
upon  the  1st  count,  and  I  request  the  opinion  of  the  judges  as  to 
the  validity  of  the  conviction.  The  prisoner  was  discharged  on  the 
recognizances  of  himself  and  two  sureties,  to  appear  and  receive 
judgment  at  the  next  sessions. 

Bittleston,^  for  the  Crown.  The  case  of  R.  v.  Thurborn  was  brought 
under  the  consideration  of  the  Recorder ;  and  construing  his  direction 
with  reference  to  the  facts  stated,  it  does  in  substance  follow  the  rule 
there  laid  down.  It  only  means  that  the  prisoner  would  be  guilty  of 
larceny  if,  when  he  first  took  complete  possession  of  the  note  animo 
furandi,  he  then  knew  or  had  the  means  of  knowing  the  owner. 
[AldersON,  B.  —  The  direction  does  not  exclude  the  supposition  that 
the  prisoner  in  the  first  instance  received  the  note  with  an  honest 
intention,  but  afterwards  altered  his  mind,  and  in  a  day  or  two  resolved 
to  appropriate  it  to  his  own  use.  But  my  brother  Parke,  in  Thurborn's 
case,  decided  that  the  dishonest  intention  must  exist  as  soon  as  the 
finder  has  taken  the  chattel  into  his  possession  so  as  to  know  what 
it  is.]  It  is  conceded  that  the  very  first  moment  of  taking  is  not 
that  at  which  the  animus  furandi  and  knowledge  of  the  owner  must 
exist  to  constitute  larceny  ;  because  the  chattel  must  be  taken  into  the 
hand  to  ascertain  what  it  is.  The  original  possession,  therefore,  must 
necessarily  be  lawful  in  every  case  ;  and  if  the  dishonest  intention 
arising  at  the  next  minute  may  make  the  finder  guilty  of  larcenj',  why 
may  not  the  same  dishonest  intention  arising  afterwards  have  the  same 
effect?  What  is  a  proper  time  for  examining  the  thing  may  vary  in 
different  cases ;  and,  if  a  man  takes  time  to  make  inquiries,  for  the 
purpose  of  satisfiying  himself  whether  he  can  keep  the  chattel  without 
risk  of  discover}',  and  ultimately  resolves  to  appropriate  it,  is  he  to  be 
held  not  guilt}'  of  larcen}'  because  he  did  not  immediately  make  up  his 
mind  to  deprive  the  owner  of  it?  It  is  stated  generally  in  the  text- 
books (1  Bl.  Com.  295,  5th  ed.)  that  the  finder  of  lost  goods  has  a 
special  property  in  them  ;  and  so,  according  to  Armory  r.  Dclamirie 
(1  Stra.  505),  he  has  against  all  but  the  true  owner ;  but  as  against  the 
true  owner  he  has  no  property  whatever;  and  it  is  submitted,  at  all 
events  with  regard  to  marked  property',  that  as  between  the  finder  and 

^  The  argument  of  O'Brien  for  the  prosecution  is  omitted. 


SECT.  II.]  REGINA   V.   PRESTON.  779 

the  loser,. the  possession  of  the  former  is,  iu  law,  that  of  the  latter,  so 
long  as  the  latter  intends  to  act  honestly.     He  holds  merely  for  the 
true  owner ;  he  had  a  bare  custody  :    but  as  soon  as  he  resolves  to 
appropriate  the  goods  to  his  own  use   he  then    converts  that  lawful 
custody   into   an    unlawful  possession ;  he  commits  a  trespass ;    and 
IS  guilty  of  larceny,  according  to  that  class  of  cases  where  the  owner, 
by  delivering  goods  to  the  prisoner,  does  not  part  with  the  possession, 
but  gives  him  the  charge  or  custody  of  them  only.     [Aldersox,  B.  — 
What  do  you  say  to  that  part  of  the  direction  which  supposes  that  the 
prisoner  was  not  the  original  finder?]     It  makes  no  ditference  whether 
the  prisoner  himself  picked  up  the  lost  note,  or  whether  the  person 
who  did,  brought  it  to  him  and  informed  him  of  all  the  circumstances. 
Tliat   intermediate  person  might  act  with  perfect  honesty ;    and  the 
prisoner   receiving   it   under   those   circumstances    would    be    in    the 
situation  of  a  finder.     [Martin,  B.  —  Suppose  a  man  takes  an  umbrella 
by  mistake,  and,  after  keeping  it  for  a  few  days,  finds  the  owner,  but 
does  not  return  it;    is  there  a  felonious  taking?     Lord  Campbell, 
C.  J.  —  You  must  contend  that  there  is.]    Yes,  there  would  be  no  change 
in  the  possession  until  the  dishonest  intention  arose.    [Lord  Campbell, 
C.  J.  —  Can  there  be  a  mental  larceny?     Alderson,  B.  —  There  must  be 
a  taking,  and  it  must  be  a  taking  animo  furandi ;  but  the  taking  and 
the  intent  are  distinct  things.]     In  the  cases  of  carriers,  where  the 
bailment  is  determined  by  breaking  bulk,  there  is  in  truth    no  fresh 
taking.     The  carrier  has  possession  of  all  the  goods  delivered  to  him 
for  the  purpose  of  carriage  ;  but  when  he  begins  to  deal  dishonestly 
with  them  there  is  a  constructive  taking;    and  Parke,  B.,  from  the 
observation  which  he    makes   on    Wynne's  case,  in  Meny  v.  Green, 
seems  to  have  thought  so. 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  this  conviction  can- 
not be  supported.  Larceny  supposes  a  taking  animo  furandi.  There 
must  always  be  a  taking  ;  but  in  the  present  case  it  is  quite  consistent 
with  the  direction  of  the  learned  Recorder  that  the  prisoner  might  be 
guilty  of  larceny  though,  when  he  took  possession  of  it,  with  a  full 
knowledge  of  the  nature  of  the  chattel,  he  honestly  intended  to  return 
it  to  the  owner  whensoever  he  should  be  found;  because  he  puts 
it  that  the  important  question  is,  at  what  time  the  prisoner  first 
resolved  to  appropriate  it  to  his  own  use.  But  when  was  the  taking? 
It  is  said  that  whenever  he  changed  his  mind,  and  formed  the  dishonest 
purpose  of  appropriating  the  note  to  his  own  use,  that  then  he  took  it 
constructively  from  the  possession  of  the  owner;  but  that  dishonest 
purpose  may  have  first  come  into  his  mind  when  he  was  lying  in  bed 
at  a  distance  of  many  miles  from  the  place  where  the  note  was.  It 
seems  to  me  that  that  operation  of  the  mind  cannot  be  considered  a 
taking,  and  that,  as  there  was  no  taking  except  the  original  taking, 
which  might  have  been  lawful,  the  conviction  must  be  reversed.  It  is 
unnecessary  to  go  into  authorities  upon  this  subject,  after  the  elaborate 
judgment  of  my  brother  Parke  in  Thurborn's  case. 


780  EEGINA   V.   WEST.  [CHAP,  XII. 

Aldekson,  B.  In  order  to  constitute  larceny,  there  must  be  a  taking, 
as  well  as  an  intention  to  steal.  The  difficulty  I  feel  in  this  case  is  to 
know  how  a  taking,  honest  at  first,  can  be  converted  into  a  dishonest 
taking  by  the  subsequent  alteration  of  intention.  It  is  clear,  in  this 
case,  that  the  learned  Recorder  left  it  open  to  the  jury  to  convict  the 
iprisoner,  even  if  they  thought  that  at  first  he  took  tlie  note  hon- 
estly, but  that  he  afterwards  changed  his  mind,  then  knowing  the 
owner ;  and  it  is  argued  that  the  formation  of  the  dishonest  intention 
alters  the  character  of  the  possession,  thougli  the  taking  may  have 
been  a  Week  before ;  but  I  think  that  that  is  a  degree  of  refinement 
which  would  destroy  the  simplicity  of  the  criminal  law. 

The  other  judges  concurred. 

Conviction  quashed.^ 


REGINA  V.  WEST. 
Crown  Case  Reserved.     1854. 

[Reported  Dearsley  C.  C.  402] 

Jervis,  C.  J.^  The  question  is  whether,  under  the  circumstances 
stated  in  this  case,  the  prisoner  was  properly-  convicted  of  larceny, 
and  we  are  all  of  opinion  that  she  was  properl}-  convicted.  The 
prisoner  keeps  a  stall  in  the  Leicester  market.  The  prosecutor  went 
to  that  stall,  left  his  purse  there,  and  went  away.  The  purse  was 
pointed  out  to  the  prisoner  by  another  person,  and  she  then  put  it  in 
her  pocket,  and  treated  it  as  her  own,  and  on  the  prosecutor  returning 
to  the  stall  and  asking  for  the  purse,  she  denied  all  knowledge  of  it. 
Two  questions  w^ere  left  to  the  jury;  first,  did  the  prisoner  take  the 
purse  knowing  that  it  was  not  her  own,  and  intending  to  appropriate 
it  to  her  own  use?  This  the  jury  said  she  did.  Second!}-,  did  the 
prisoner  then  know  who  was  the  owner  of  the  purse?  This  the  jury 
said  she  did  not.  If  there  had  been  any  evidence  that  tlie  purse 
and  its  contents  were  lost  propert}',  propcrl}'  so  speaking,  and  the 
jur}-  had  so  found,  the  iuvy  ought  further  to  have  been  asked  whether 
the  prisoner  had  reasonable  means  of  finding  the  owner,  or  reasonabl}^ 
believed  that  the  owner  could  not  be  found  ;  but  there  is  in  this  case 
no  reason  for  supposing  that  the  propert}'  was  lost  at  all,  or  that  the 
prisoner  thought  it  was  lost.  On  the  contrary',  the  owner,  having  left 
it  at  the  stall,  would  naturall}'  return  there  for  it  when  he  missed  it. 

There  is  a  clear  distinction  between  property  lost  and  property 
merely  mislaid,  put  down,  and  left  b}-  mistake,  as  in  this  case,  under 
circumstances  which  would  enable  the  owner  to  know  the  place  where 

1  Ace.  Reg  V.  Matthews,  12  Cox  C.  C.  489.  But  see  Beatty  v.  State,  61  Miss. 
18  — Ed. 

2  The  opiniou  only  is  given ;  it  sufficiently  states  the  case. 


SECT.   II.]  REGINA   V.    ROAVE.  781 

he  had  left  it,  and  to  which  he  would  naturally  return   for  it.     The 
question  as  to  possession  by  finding,  therefore,  does  not  arise. 

The  other  learned  judges  concurred.^  Conviction  affirmed. 


REGINA  V.  ROWE. 

Crown  Case  Reserved.     1859. 

[Reported  Bell  C.  C.  93.2] 

The  following  ease  was  reserved  by  the  Chairman  of  the  Glamorgan- 
shire Quarter  Sessions  :  — 

At  the  Glamorganshire  Midsummer  Quarter  Sessions,  1858,  "William 
Rowe  was  indicted  for  stealing  16  cwt.  of  iron  of  the  goods  and  chat- 
tels of  The  Company  of  Proprietors  of  the  Glamorganshire  Canal 
Navigation. 

It  appeared  by  the  evidence  that  the  iron  had  been  taken  from  the 
canal  by  the  prisoner,  who  was  not  in  the  employ  of  the  Canal  Com- 
pany, while  it  was  in  process  of  being  cleaned.  The  manager  of 
the  canal  stated  that,  if  the  property  found  on  such  occasions  in  the 
canal  can  be  identified,  it  is  returned  to  the  owner.  If  it  cannot,  it  is 
kept  by  the  compaii}-. 

It  was  objected  that,  as  the  Canal  Company  are  not  carriers,  but  only 
find  a  road  for  the  conveyance  of  goods  by  private  owners,  the  property 
was  not  properly  laid  as  that  of  the  Canal  Company.  The  prisoner 
was  convicted,  and  sentenced  to  two  calendar  months'  imprisonment  in 
the  House  of  Correction  at  Cardiff,  but  was  released  on  bail. 

This  case  was  considered,  on  22d  November,  1858,  by  Pollock, 
C.  B.,  Wightman,  J.,  Williams,  J.,  Channell,  B.,  Byles,  J.,  and 
Hill,  J. 

No  counsel  appeared.  Cur.  adv.  vult. 

On  5  th  February,  1859,  the  judgment  of  the  court  was  given  by  — 
Pollock,  C.  B.  The  judges  who  have  considered  this  case  are  unan- 
imously of  opinion  that  the  conviction  should  be  affirmed.  The  case 
finds  that  some  iron  had  been  stolen  by  the  prisoner  from  the  canal 
while  the  canal  was  in  process  of  cleaning,  and  while  the  water  was 
out.  The  prisoner  was  not  in  the  employ  of  the  Canal  Company,  but 
a  stranger ;  and  the  property  of  the  company  in  the  iron  before  it  was 
taken  away  by  the  prisoner  was  of  the  same  nature  as  that  which  a 

1  Ace.  Re^.  V.  Coffin,  2  Cox  C.  C  44  ;  Reg.  v.  Pierce,  6  Cox  C.  C.  117  ;  Reg.  v. 
Moore,  8  Cox  C.  C.  416;  State  v.  McCann,  19  Mo.  249;  People  v.  McGarren,  17 
Wend.  460;  Lawrence  v.  State,  1  Humph.  228.  See  McAvoy  v.  Medina,  11  All.  548; 
B.  c.  1  Gray's  Cases  on  Prop.  378.  —  Ed. 

*  s.  c.  1  Gray's  Cases  on  Prop.  375. 


732  COMMOxNWEALTH   V.    TITUS.  [CHAP.  XII. 

landlord  has  in  goods  left  behind  by  a  guest.  Property  so  left  is  in 
the  possession  of  the  landlord  for  the  purpose  of  delivering  it  up  to 
the  true  owner;  and  he  has  sufficient  possession  to  maintain  an  indict- 
ment for  larceny.i  ConvicUon  affirmed. 


COMMONWEALTH  v.   TITUS. 
Supreme  Judicial  Court  of  Massachusetts.     1874. 

[Reported  116  Massachusetts,  42.] 
Indictment  against  Lucian  M.  Titus  and  Elbridge  F.  Horr,  charging 
them  jointly  Avith  the  larceny  of  certain  articles  of  personal  property 
alleged  to  be  the  property  of  Nancy  Meacham. 

Trial  in  the  Superior  Court,  before  Aldrich,  J.,  who  allowed  the 
followincT  bill  of  exceptions:  "The  defendant  Horr  pleaded  guilty. 
Titus  pleaded  not  guilty.  Upon  his  trial  the  government  introduced 
evidence  tending  to  prove  the  ownership  of  the  property  as  alleged  in 
the  indictment ;  and  that  the  owner,  while  riding  on  one  of  the  public 
hi^^hways  in  Athol,  lost  the  wallet  or  travelling  bag  containing  the 
articles  mentioned  in  the  indictment;  that  the  defendants,  passing 
along  the  same  highway  not  long  after  the  loss  of  the  bag,  discovered 
it,  pFcked  it  up,  and  afterwards  appropriated  the  contents  of  the  bag  to 
their  own  use,  and  destroyed  the  bag  by  cutting  it  in  pieces  and  con- 
cealing the  same  in  a  wood-lot  remote  from  the  place  of  finding. 

"  As  bearing  upon  the  question  of  the  intent  with  which  the  defend- 
ant Titus  originally  took  the  bag  and  its  contents,  the  government, 
against  his  objection,  was  permitted  to  introduce  evidence  to  show 
wliat  Titus  said  and  did  about  the  property  and  his  possession  of  it, 
subsequently  to  the  original  finding  and  taking.  This  evidence  was 
offered  by  the  government  and  admitted  by  the  court  for  the  single 
purpose  of  proving,  so  far  as  it  tended  to  do  that,  the  intent  with 
which  Titus  originally  took  the  property  into  his  possession  nt  the  time 
of  finding  it.  And  the  jury  were  instructed  that  they  could  properly 
make  no  other  use  of  this  evidence  as  against  the  defendant. 

''  The  defendant's  counsel  asked  the  court  to  rule  that  lost  property 
cannot  be  the  subject  of  larceny.  This  ruling  the  court  declined  to 
give  ;  but  did  instruct  the  jury  that  to  authorize  a  conviction  of  the 
defendant  Titus,  they  must  be  convinced  by  the  evidence  in  the  case 
beyond  all  reasonable  doubt :  first,  that  at  the  time  of  the  finding  of 
the  property  by  the  defendant  and  the  taking  of  it  into  his  possession 
he  had  a  felonious  intent  of  appropriating  the  property  to  his  own  use 
and  depriving  the  owner  of  it ;  secon(^ly,  that  he  then  knew  who  the 

1  See  Elwes  v.  Brigg  Gas  Co.,  33  Ch.  D.  562;  Goodard  v.  Winchell  (la.),  52  N.  W. 
1124.  —Ed. 


SECT.  II.]  COMMONWEALTH    V.   TITUS.  lo'o 

owner  was,  or  then  had  reasonable  means  of  knowing  or  ascertaining 
who  the  owner  was. 

"  The  court  further  instructed  the  jury  tliat  if  the  evidence  failed  to 
satisfy  them  beyond  every  reasonable  doubt  that,  at  the  time  of  finding 
the  property,  Titus  knew  or  had  reasonable  means  of  knowing  who  the 
owner  was  ;  or  if  tliey  sliould  find  that  he  did  not  originally  take  the 
property  with  the  felonious  intent  of  converting  it  to  his  own  use,  but 
formed  such  purpose  afterwards,  it  would  be  their  duty  to  acquit  him. 

"  To  the  admission  of  the  evidence  objected  to,  the  refusal  to  rule 
as  requested,  and  the  foregoing  instructions,  the  defendant  objected. 
Other  and  appropriate  instructions,  not  objected  to,  in  relation  to  the 
nature  of  the  oflence  charged,  and  in  relation  to  the  evidence,  the 
burden  of  proof,  &c.,  were  given. 

"The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged 
exceptions." 

F.  T.  Blackmer,  for  the  defendant,  cited  2  East  P.  C.  663  ;  Regina 
V.  Wood,  3  Cox  C.  C.  453  ;  Regina  v.  Preston,  2  Den.  C.  C.  353  ;  s.  c. 
5  Cox  C.  C.  390  ;  Regina  v.  Dixon,  7  ib.  35  ;  Regina  v.  Christopher, 
8  ib.  91  ;  Regina  v.  Moore,  ib.  416;  Regina  v.  Glyde,  11  ib.  103; 
People  V.  Anderson,  14  Johns.  294  ;  People  v.  Cogdell,  1  Hill,  94  ; 
Porter  v.  State,  Mart.  &  Yerg.  226  ;  Tyler  v.  People,  Breese,  227 ; 
State  V.  Weston,  9  Conn.  527. 

C.  R.  Tram,  Attorney  General,  for  the  Commonwealth,  cited,  in 
addition  to  some  of  the  above  cases,  Regina  v.  Thurborn,  1  Den.  C.  C. 
387;  2  Bennett  &  Heard's  Lead.  Crim.  Cas.  (2d  ed.)  409,  417; 
Regina  v.  Shea,  7  Cox  C.  C.  147 ;  Commonwealth  v.  Mason,  105 
Mass.  163. 

Gray,  C.  J.  The  rulings  and  instructions  at  the  trial  were  quite  as 
favorable  to  the  defendant  as  the  great  weight,  if  not  the  unanimous 
concurrence,  of  the  cases  cited  on  either  side  at  the  argument  would 
warrant. 

The  finder  of  lost  goods  may  lawfully  take  them  into  his  possession, 
and  if  he  does  so  without  any  felonious  intent  at  that  time,  a  subse- 
quent conversion  of  them  to  his  own  use,  by  whatever  intent  that 
conversion  is  accompanied,  will  not  constitute  larceny.  But  if,  at  the 
time  of  first  taking  them  into  his  possession,  he  has  a  felonious  intent 
to  appropriate  them  to  his  own  use  and  to  deprive  the  owner  of  them, 
and  then  knows  or  has  the  reasonable  means  of  knowing  or  ascertain- 
ing, by  marks  on  the  goods  or  otherwise,  who  the  owner  is,  he  may  be 
found  guilty  of  larceny. 

It  was  argued  for  the  defendant  that  it  would  not  be  sufficient  that 
he  might  reasonably  have  ascertained  who  the  owner  was  ;  that  he 
must  at  least  have  known  at  the  time  of  taking  the  goods  that  he  had 
reasonable  means  of  ascertaining  that  fact.  But  the  inslruction  given 
did  not  require  the  jury  to  be  satisfied  merely  that  the  defendant  might 
have  reasonably  ascertained  it,  but  that  at  tlie  time  of  the  original 
taking  he  either  knew  or  had  reasonable  means  of  knowing  or  ascer- 


784  KEGINA    V.   FINLAYSON.  [cHAP.  XII. 

taining  who  the  owner  was.  Such  a  finding  would  clearl}'  imply  that 
he  had  such  meaps  within  his  own  knowledge,  as  well  as  within  his 
own  possession  or  reach,  at  that  time. 

It  was  further  argued  that  evidence  of  acts  of  the  defendant,  subse- 
quent to  the  original  finding  and  taking,  was  wrongly  admitted,  because 
such  acts  might  have  been  the  result  of  a  purpose  subsequently  formed. 
But  the  evidence  of  the  subsequent  acts  and  declarations  of  the 
defendant  was  offered  and  admitted,  as  the  bill  of  exceptions  distinctly 
states,  for  the  single  purpose  of  proving,  so  far  as  it  tended  to  do  so, 
the  intent  with  which  the  defendant  originally  took  the  property  into 
his  possession  at  the  time  of  finding  it.  And  the  bill  of  exceptions 
does  not  state  what  the  acts  and  declarations  admitted  in  evidence 
were,  and  consequently  does  not  show  that  any  of  them  had  no  tendency 
to  prove  that  intent,  nor  indeed  that  any  acts  were  proved  except  such 
as  accompanied  and  gave  significance  to  distinct  admissions  of  the 
intent  with  which  the  defendant  originally  took  the  goods. ^ 

Exceptions  overruled. 


REGINA   V.   FINLAYSON. 

Supreme  Court  of  New  South  Wales.     1864. 

[Reported  3  New  South  Wales  S.  C.  Reports,  301.] 

Stephen,  C.  J.^  It  appears  that  the  prisoner  was  driving  a  mob  of 
horses,  when  the  horse  in  question  (a  branded  animal,  the  ownership, 
therefore,  of  which  was  ascertainable  in  the  neigliborhood)  joined  the 
others  —  it  being  near  the  owner's  run.  Whether  the  prisoner  (who 
was  two  or  three  hundred  yards  behind,  having  assistants  ahead  or  at' 
the  side)  saw  at  the  time  that  this  horse  had  joined  his  own  horses,  did 
not  appear.  But  it  was  proved  that  the  next  morning,  as  the  custom 
was,  the  prisoner  counted  over  the  entire  mob,  and  then  drove  the 
whole  on  together  to  their  destination.  The  learned  judge,  in  sub- 
stance, told  the  jury  that  assuming  this  to  be  a  case  of  finding,  yet  the 
prisoner  need  not  have  formed  the  intent  to  appropriate  the  animal  at 
the  moment  of  its  junction  with  the  others,  or  of  the  then  continued 
driving  onward  of  the  horses,  but  that  it  was  necessary  to  show  that 
such  intent  existed  at  the  moment  of  taking.  He  left  the  question  to 
them,  therefore,  whether  the  intent  existed  when  the  prisoner  first  did 
some  act,  or  gave  some  direction  by  which  he  treated  the  horse  as  part 
of  his  own  mob  of  horses,  or  incorporated  it  therewith.  I  am  of 
opinion  that  this  direction  was  right ;    and  it  seems  to  be  doubtful 

1  Ace.  Rountree  v.  State,  58  Ala.  381  ;  Gricrgs  r.  State,  58  Ala.  425 ;  State  i'.  Levy, 
23  Minn.  10-t ;  State  v.  Clifford,  14  Nev.  72  ;  Baker  v.  State,  29  Oh.  St.  184 ;  Brooks  o 
State,  35  Oh.  St.  46.  —Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


SECT,  II.]  ■     BEGIN  A.  V.   ASHWELL.  785 

whether  the  prisoner's  case  was  one  of  finding  at  all.  If  it  merely 
strayed,  it  was  not  lost,  and  could  not  therefore  be  found.  But  it 
appears  that  the  next  morning  the  prisoner  counted  the  horses,  and  he 
therefore  then  saw  this  one  among  them,  and  determined  to  take  pos- 
session of  it.  By  the  same  act,  he  took  possession,  and  determined 
to  appropriate  it. 

Wise,  J.,  concurred.  Conviction  sustained} 


REGINA  V.   ASHWELL. 
Crown  Case  Reserved.     1885. 

[Reported  16  Cox  C.  C.  1.] 

Case  reserved  for  the  opinion  of  the  court  b}' Denman,  J.,  at  the 
January-  Assizes,  1885,  for  the  count}'  of  Leicester,  which  stated  the 
following  facts  :  — 

On  the  *23d  of  January,  1885,  Thomas  Ashwell  was  tried  for  the 
larcen}'  of  a  sovereign,  the  mone}'  of  Edward  Keogh. 

Keogh  and  Ashwell  met  at  a  public  house  on  the  9th  of  January. 

At  about  eight  p.  m.  Ashwell  asked  Keogh  to  go  into  the  yard,  and 
when  there  requested  Keogh  to  lend  him  a  shilling,  sa3'ing  that  he  had 
raone}'  to  draw  on  the  morrow,  and  that  then  he  would  repay  him. 
Keogh  consented,  and  putting  his  hand  into  his  pocket,  pulled  out 
what  he  believed  to  be  a  shilling,  but  what  was  in  fact  a  sovereign,  and 
handed  it  to  Ashwell,  and  went  home,  leaving  Ashwell  in  the  yard. 
About  nine  the  same  evening  Ashwell  obtained  change  for  the  sovereign 
at  another  public  house. 

At  5.20  the  next  morning  (the  10th)  Keogh  went  to  Ash  well's  house 
and  told  him  that  he  had  discovered  the  mistake,  whereupon  Ashwell 
denied  having  received  the  soA^ereign,  and  on  the  same  evening  he  gave 
false  and  contradictory  accounts  as  to  where  he  had  become  possessed 
of  the  sovereign  he  had  changed  at  the  second  public  house  on  the 
night  before.  But  he  afterwards  said,  "  I  had  the  sovereign  and  spent 
half  of  it,  and  I  sha'n't  give  it  him  back,  because  I  only  asked  him  to 
lend  me  a  shilUng." 

Mr.  Sills,  for  the  prisoner,  submitted  that  there  was  no  evidence  of 
larceny,  no  taking,  no  obtaining  by  trick  or  false  pretence,  no  evidence 
that  the  prisoner  at  the  time  he  received  the  sovereign  knew  it  was 
not  a  shilling.  He  referred  to  Regina  v.  Middleton,  L.  Rep.  2  C.  C.  R. 
43,  45. 

Mr.  A.  K.  Loyd.,  for  the  prosecution,  called  my  attention  to 
Stephen's  Criminal  Law  Digest,  art.  299,  and  to  the  cases  relating  to 
larceny  of  property  found. 

I  declined  to  withdraw  the  case  from  the  jury,  thinking  it  desirable 

1  Ace.  Reg.  V.  Riley,  6  Cox  C.  C.  88 ;  Dears.  149,  infra.  — ^o. 
50 


786 


KEGINA    V.    ASHWELL.  [cHAP.  XII. 


that  the  point  raised  should  be  decided  by  the  Court  of  Criminal  Appeal. 
The  passage  in  Stephen's  Digest  referred  to  is  as  follows  :  "  Theft  may 
be  committed  by  converting  property  which  the  owner  has  given  to  the 
offender  under  a  mistake  which  the  offender  has  not  caused,  but  which 
he  knows  at  the  time  when  it  is  made,  and  of  which  he  fraudulently 
takes  advantage.  But  it  is  doubtful  whether  it  is  theft  fraudulently  to 
convert  property  given  to  the  person  converting  it  under  a  mistake  of 
which  that  person  was  not  aware  when  he  received  it." 

The  jury  found  tliat  the  prisoner  did  not  know  that  it  was  a  sovereign 
at  the  time  he  received  it,  but  said  they  were  unanimously  of  opinion 
that  the  prosecutor  parted  with  it  under  the  mistaken  belief  that  it  was 
a  shilling,  and  that  the  prisoner,  having  soon  after  he  received  it  dis- 
covered that  it  was  a  sovereign,  could  have  easily  restored  it  to  the 
prosecutor,  but  fraudulently  appropriated  it  to  his  own  use  and  denied 
the  receipt  of  it,  knowing  that  the  prosecutor  had  not  intended  to  part 
with  the  possession  of  a  sovereign,  but  only  of  a  shilling.  They  added 
that,  if  it  were  competent  to  them,  consistently  with  these  findings  and 
with  the  evidence,  to  find  the  prisoner  guilty,  they  meant  to  do  so. 

I  entered  a  verdict  of  guilty,  but  admitted  the  prisoner  to  bail,  to 
come  up  for  judgment  at  the  next  assizes  if  this  court  should  think  that 
upon  the  above  facts  and  findings  the  prisoner  could  properly  be  found 
guilty  of  larceny. 

JIarch  21.  Before  Lord  Coleridge,  C.  J.,  Grove,  Lopes,  Stephen, 
and  Cave,  JJ.^ 

June  13.  This  case  was  reargued  before  the  following  learned 
judges:  Lord  Coleridge,  C.  J.,  Grove  and  Denman,  JJ.,  Pollock,  B., 
P'ield,  J.,  Iluddleston,  B.,  Manisty,  Hawkins,  Stephen,  Mathew,  Cave, 
Day,  Smith,  and  Wills,  JJ. 

Smith,  J.,  read  the  following  judgment:  The  prisoner  in  this  case 
was  indicted  for  the  larceny  of  a  sovereign,  the  moneys  of  P^dward 
Keogh.  The  material  facts  are  as  follows :  Keogh  handed  to  the 
prisoner  the  sovereign  in  question,  believing  it  was  a  shilling  and  not 
a  sovereign,  upon  the  terms  that  the  prisoner  should  hand  back  a  shil- 
ling to  him  when  he  (the  prisoner)  was  paid  his  wages.  At  the  time 
the  sovereign  was  so  handed  to  the  prisoner  he  honestly  believed  it  to 
be  a  shilling.  Some  time  afterwards  the  prisoner  discovered  that  the 
coin  he  had  received  was  a  sovereign  and  not  a  shilling,  and  then  and 
there  fraudulently  appropriated  it  to  his  own  use.  Is  this  larceny  at 
common  law  or  by  statute?  To  constitute  the  crime  of  larcen}-  at 
common  law,  in  my  judgment,  there  must  be  a  taking  and  carrying 
away  of  a  chattel  against  the  will  of  the  owner,  and  at  the  time  of  such 
taking  there  must  exist  a  felonious  intent  in  the  mind  of  the  taker. 
If  one  or  both  of  the  above  elements  be  absent,  there  cannot  lie  larceny 
at  common  law.  The  taking  must  be  under  such  circumstances  as 
would  sustain  an  action  of  trespass.     If  there  be  a  bailment  or  delivery 

1  Arguments  of  counsel  are  omitted. 


SECT.  II.]  re:!INA  v.  ashwell,  787 

of  the  chattel  by  the  owner,  inasmuch  as,  among  other  reasons,  trespass 
will  not  lie,  it  is  not  larceny  at  common  law.  In  c.  19,  §  1,  at  p. 
142  of  vol.  i.  of  Hawkins'  Pleas  of  the  Crown,  it  is  stated:  "It  is 
to  be  observed  that  all  felony  includes  trespass,  and  that  every  indict- 
ment of  larceny  must  have  the  wovds  felonice  cepit  as  well  as  asportarit. 
Whence  it  follows  that  if  the  party  be  guilty  of  no  trespass  in  taking 
the  goods  he  cannot  be  guilty  of  felony  in  carrying  them  away."  As  1 
understand,  the  counsel  for  the  Crown  did  not  really  dispute  the  above 
definition,  and  indeed,  if  he  had,  upon  further  referring  to  the  3d  In- 
stitutes, chap,  xlvii.,  p.  107,  and  the  1st  Hale's  Pleas  of  the  Crown, 
p.  61,  it  would  be  found  to  be  fully  borne  out  by  those  writers.  Tlie 
two  cases  cited  in  argument,  Rex  v.  Mucklow,  1  Moody's  Crown  Cases, 
161,  and  Regina  v.  Davies,  Dears.  640,  are  good  illustrations  of  what  I 
have  enunciated  ;  and  if  other  cases  were  wanted  there  are  plenty  in 
the  books  to  the  same  effect.  In  the  present  case  it  seems  to  me,  in  the 
first  place,  that  the  coin  was  not  taken  against  the  will  of  the  owner, 
and  if  this  be  so,  in  my  judgment  it  is  sufficient  to  show  that  there  was 
no  larceny  at  common  law ;  and  secondly,  it  being  conceded  that  there 
■was  no  felonious  intent  in  the  prisoner  when  he  received  the  coin,  this, 
in  my  judgment,  is  also  fatal  to  the  act  being  larceny  at  common  law. 
As  to  this  last  point,  the  law  laid  down  by  Cockburn,  C.  J.,  Blackburn, 
Mellor,  Lush,  Grove,  Denman,  and  Archibald,  JJ.,  in  the  case  of 
Regina  v.  Middleton,  L.  Rep.  2  C.  C.  45,  is  very  pertinent;  it  is  as 
follows:  "  We  admit  that  the  case  is  undistinguishable  from  the  one 
supposed  in  argument  of  a  person  handing  to  a  cabman  a  sovereign  ])y 
mistake  for  a  shilling  ;  but  after  a  careful  weighing  of  the  opinions  to 
the  contrary,  we  are  decidedly  of  opinion  that  the  property  in  the 
sovereign  would  not  vest  in  the  cabman,  and  the  question  whether  the 
cabman  was  guilty  of  larceny  or  not  would  depend  upon  this,  —  whether 
at  the  time  he  took  the  sovereign  he  was  aware  of  the  mistake  and  had 
then  the  guilty  intent,  the  animus  furancli"  I  believe  the  above  to 
be  good  law.  The  contention,  however,  of  the  Crown  was  that,  although 
the  above  might  be  correct,  yet  the  present  case  was  to  be  likened  to 
those  cases  in  which  finders  of  a  lost  chattel  have  been  held  guilty  of 
larceny.  The  principle  upon  which  a  finder  of  a  lost  chattel  has  been 
held  guilty  of  larceny  is  that  he  has  taken  and  carried  awa}'  a  chattel, 
not  believing  that  it  had  been  abandoned,  and  at  the  time  of  such  taking 
has  had  the  felonious  intent,  —  the  proper  direction  to  be  given  to  a 
jury  being,  as  I  understood,  "  Did  the  prisoner,  at  the  time  of  finding 
the  chattel  intend  to  appropriate  it  to  his  own  use,  then  believing  that 
the  true  owner  could  be  found,  and  that  the  chattel  had  not  been 
abandoned?"  See  Regina  v.  Thurborn,  1  Denison's  Crown  Cases,  388, 
and  Regina  v.  Clyde,  L.  Rep.  1  C.  C.  139.  If  he  did,  he  would  be 
guilty  of  larceny  ;  aliter  he  would  not.  Then  it  was  argued,  as  argued 
it  was  by  the  counsel  for  the  Crown,  that  the  prisoner  in  this  case  was 
on  the  same  footing  as  a  finder  of  a  chattel.  In  my  judgment  the  facts 
do  not  support  it.     Keogh,  in  the  present  case,  intended  to  deliver  the 


783  KEGIXA   V.   ASHWELL.  [CHAP.  XII. 

coin  to  the  prisoner  and  the  prisoner  to  receive  it.  The  chattel, 
namely,  the  coin,  was  delivered  over  to  the  prisoner  by  its  owner,  and 
the  prisoner  received  it  honestly.  He  always  knew  he  had  the  coin  in 
his  possession  after  it  had  been  delivered  to  him.  The  only  thing  which 
was  subsequently  found  was  that  the  coin  delivered  was  worth  210(7., 
instead  of  12f/.,  as  had  been  supposed.  This  argument,  as  it  seems  to 
me,  confounds  the  finding  out  of  a  mistake  with  the  finding  of  a  chattel. 
h\  some  cases,  as  above  pointed  out,  the  finder  of  a  chattel  may  be 
guilty  of  larceny  at  common  law  ;  but  how  does  that  show  that  the 
finder  out  of  a  mistake  may  also  be  guilty  of  such  a  crime?  A  mistake 
is  not  a  chattel.  The  chattel  (namely,  the  coin)  in  this  case  never  was 
lost ;  then  how  could  it  be  found  ?  In  my  judgment  the  argument  upon 
the  point  for  the  Crown  is  wholly  fallacious  and  fails.  It  was  further 
urged  for  the  Crown  that  the  present  case  was  covered  by  authority, 
and  the  cases  of  Cartwright  r.  Green.  8  Ves.  405,  and  Merry  v.  Green, 
7  M.  &  W.  623,  were  cited  in  this  behalf.  I  fail  to  see  that  either  case 
is  an  authority  for  the  point  insisted  upon  by  the  Crown.  In  the  first 
case,  Cartwright  c.  Green,  8  Ves.  405,  the  question  arose  upon  demurrer 
to  a  bill  in  Chancery  as  to  whether  a  felony  was  disclosed  upon  the  face 
of  the  bill.  Lord  Eldon,  as  he  states  in  his  judgment,  decided  the  case 
upon  the  ground  that,  inasmuch  as  the  bureau  in  question  had  been 
delivered  to  the  defendant  for  no  other  purpose  than  repair,  and  he  had 
broken  open  a  part  of  it  which  it  was  not  necessary  to  touch  for  the 
purpose  of  repair  with  the  intention  of  taking  and  appropriating  to  his 
own  use  whatever  he  should  find  therein,  it  was  larceny.  I  conceive 
this  to  be  distinctly  within  the  principle  I  have  above  stated,  —  there 
was  the  taking  against  the  will  of  the  owner  with  the  felonious  intent 
at  the  time  of  taking.  The  other  case,  namely,  ^Nlerrv  v.  Green,  7  M. 
&  "\V.,  623,  which  was  also  the  case  of  a  purse  in  a  secret  drawer  of  a 
bureau  which  had  been  purchased  at  a  sale,  was  clearly  decided  by 
Parke,  B.,  who  delivered  the  judgment  of  the  court,  upon  the  principles 
applicable  to  a  case  of  finding.  The  learned  Baron  says:  "  It  seems 
to  us  that  though  there  was  a  delivery  of  the  secretary  and  a  lawful 
property-  in  it  thereby  vested  in  the  plaintiff,  there  was  no  delivery  so 
as  to  give  a  lawful  possession  of  the  purse  and  mone}'.  The  vendor 
had  no  intention  to  deliver  it  nor  the  vendee  to  receive  it ;  both  were 
ignorant  of  its  existence  ;  and  when  the  plaintiflE"  discovered  that  there 
was  a  secret  drawer  containing  the  purse  and  money,  it  was  a  case  of 
simple  finding,  and  the  law  applicable  to  all  cases  of  finding  applies." 
I  understand  the  learned  Baron,  when  he  says  "the  law  applicable  to 
all  cases  of  finding  applies,"  to  mean  the  law  applicable  to  the  eases  of 
finding  a  chattel ;  for  there  are  no  cases  extant  as  to  finding  out  a 
mistake  to  which  his  remark  could  apply.  That,  too.  is  the  distinction 
between  the  present  case  and  that  before  Parke,  B.  In  Merry  v. 
Green,  7  M.  &  "W.  623,  no  intention  to  deliver  the  chattel  (namely, 
the  purse  and  money)  at  all  ever  existed,  whereas  in  the  present  case 
there  was  every  intention  to  deliver  the  chattel  (namely,  the  coin),  and 


SECT.  II.]  -      EEGINA   V.   ASHWELL.  789 

it  was  delivered  and  honestl}- received.  In  m}' judgment  a  man  who 
honestly  receives  a  chattel  by  deliver}-  thereof  to  him  bj'  its  true  owner 
cannot  be  found  guilty  of  larceny  at  common  law,  and  in  my  opinion 
the  prisoner  in  this  case  is  not  guilty  of  that  offence.  The  second 
point  has  now  to  be  considered,  namely,  was  he  guilt}'  of  larceny  as  a 
bailee  within  the  true  intent  of  §  3  of  24  &  25  Vict.  c.  96?  To  consti- 
tute a  person  bailee  of  a  chattel  there  must  be  a  bailment  and  not  a 
mere  delivery  of  the  chattel.  There  must  be  a  delivery  of  a  chattel 
upon  contract  express  or  implied  to  return  the  chattel  or  obey  the 
mandate  with  which  the  delivery  is  clogged,  or  in  other  words,  a  delivery 
upon  condition.  The  question  as  it  seems  to  me  is  this,  Is  the  law  in 
the  present  case  to  impl}'  a  condition  when  we  know  perfectl}-  well  that 
at  the  time  of  the  deliver}-  of  the  coin  no  condition  at  all  was  in  the 
contemplation  of  the  parties,  excepting  that  a  coin  of  like  value  should 
be  returned  to  Keogh  when  the  prisoner  had  drawn  his  wages?  No 
condition  to  return  the  coin  delivered  to  the  prisoner  was  ever  thought 
of,  and  in  my  judgment,  such  a  condition  cannot  be  implied.  Should, 
however,  any  condition  be  implied  as  to  what  was  to  be  done  if  or 
when  an}-  mistake  not  then  contemplated  should  be  discovered,  my 
opinion  is  that  the  only  condition,  if  any,  which  could  be  implied  would 
be  that  the  prisoner  would  not  spend  or  use  for  his  own  purposes  19s.  out 
of  the  205. ;  and  I  am  of  opinion  that  if  the  prisoner  had,  upon  finding 
out  the  mistake,  taken  to  Keogh  195.,  he  would  have  been  strictly 
within  his  rights.  The  case  of  Regina  v.  Hassall,  L.  &  C.  58,  is  an 
express  authority  to  the  effect  that  a  person  is  not  a  bailee  within  the 
statute  unless  he  is  under  obligation  to  return  the  identical  chattel 
deposited  with  him.  In  my  judgment  the  prisoner  was  not  a  bailee  of 
the  sovereign  for  the  reasons  above  given.  I  am  fully  alive  to  the 
remark  which  has  been  made,  that  if  the  present  case  is  not  one  of 
larceny,  it  should  be.  Whether  this  remark  is  well  founded  or  not  I 
do  not  pause  to  inquire  ;  but  it  seems  to  me  that  the  observations  of 
Bramwell,  B.,  in  Regina  v.  Middleton,  L.  Rep.  2  C.  C.  38,  on  this  head 
are  well  worthy  of  consideration.  Believing,  however,  as  I  do,  that 
according  to  the  law  of  England,  as  administered  from  the  earliest 
times,  the  present  case  is  not  a  case  of  larceny  at  common  law,  I  cannot 
hold  otherwise  than  I  do ;  and  as  for  the  reasons  given  above,  the 
prisoner  is  not,  in  my  opinion,  guilty  of  larceny  as  a  bailee,  my  judg- 
ment is  that  the  conviction  should  be  quashed.^ 

Cave,  J.  (As  the  learned  judge  was  unable  to  attend,  the  following 
judgment,  written  by  him,  was  read  by  Lord  Coleridge,  C.  J.)  The 
question  we  have  to  decide  is,  whether  under  the  circumstances  stated 
in  the  case  the  prisoner  was  rightly  convicted  of  larceny,  either  at 
common  law  or  as  a  bailee.  It  is  undoubtedly  a  correct  proposition 
that  there  can  be  no  larceny  at  common  law  unless  there  is  also  a  tres- 

1  Concurring  opinions  were  delivered  by  Mathew,  Field,  Manisty,  and  Stephen, 
JJ.     Day  and  Wills,  JJ.,  also  concurred. 


790 


KEGINA   V.    ASHWELL.  [CIIAP.  XII. 


pass,  and  that  there  can  be  no  trespass  where  the  prisoner  has  obtained 
lawful  possession  of  the  goods  alleged  to  be  stolen  ;  or  in  other  words, 
the  thief  must  take  the  goods  into  his  possession  with  the  intention  of 
depriving  the  owner  of  them.  If  he  has  got  the  goods  lawfully  into  his 
possession  before  the  intention  of  depriving  the  owner  of  them  is 
formed,  there  is  no  larceny.  Applying  that  principle  to  this  case,  if  the 
prisoner  acquired  lawful  possession  of  the  sovereign  when  the  coin  was 
actually  handed  to  him  by  the  prosecutor,  there  is  no  larceny,  for  at 
that  time  the  prisoner  did  not  steal  the  coin  ;  but  if  he  only  acquired 
possession  when  he  discovered  the  coin  to  be  a  sovereign,  then  he  is 
guilty  of  larceny,  for  at  that  time  he  knew  that  he  had  not  the  consent 
of  tiie  owner  to  his  taking  possession  of  the  sovereign  as  his  own,  and 
the  taking  under  those  circumstances  was  a  trespass.  It  is  contended 
that,  as  the  prosecutor  gave  and  the  prisoner  received  the  coin  under 
the  impression  that  it  was  a  shilling  and  not  a  sovereign,  the  prosecutor 
never  consented  to  part  with  the  possession  of  the  sovereign,  and  con- 
sequently there  was  a  taking  by  the  prisoner  without  his  consent ;  but 
to  my  mind,  it  is  impossible  to  come  to  the  conclusion  that  at  the  time 
when  the  sovereign  was  handed  to  him,  the  prisoner,  who  was  then 
under  a  bofia  fide  mistake  as  to  the  coin,  can  be  held  to  have  been 
guilty  of  a  trespass  in  taking  that  which  the  prosecutor  gave  him.  It 
seems  to  me  that  it  wouki  be  equally  logical  to  say  that  the  prisoner 
would  have  been  guilt}'  of  a  trespass  if  the  prosecutor,  intending  to  slip 
a  shilling  into  the  prisoner's  pocket  without  his  knowledge,  had  by 
mistake  slipped  a  sovereign  in  instead  of  a  sliilling.  The  only  point 
which  can  be  made  in  favor  of  the  prosecution,  so  far  as  I  can  see,  is 
that  the  prisoner  did  not  actually  take  possession  until  he  knew  what 
the  coin  was  of  w^hich  he  was  taking  possession,  in  which  case,  as  he 
then  determined  to  deprive  the  prosecutor  of  his  property,  there  was  a 
taking  possession  simultaneousl}"  with  the  formation  of  tliat  intention. 
Had  the  coin  been  a  shilling,  it  is  obvious  that  the  prisoner  would  have 
gained  the  property  in  and  the  possession  of  the  coin  when  it  was  handed 
to  him  by  the  prosecutor ;  as  there  was  a  mistake  as  to  the  identity  of 
the  coin  no  property  passed,  and  the  question  is  whether  tiie  possession 
passed  when  the  coin  was  handed  to  the  prisoner  or  when  the  prisoner 
first  knew  that  he  had  got  a  sovereign  and  not  a  shilling.  There  are 
four  cases  which  it  is  important  to  consider.  The  first  is  Cartwright  v. 
Green,  8  Ves.  405,  which,  however,  differs  slightly  from  the  present, 
because  in  that  case  there  was  no  intention  to  give  the  defendant 
Green  either  the  propert}-  in  or  the  possession  of  the  guineas,  but  onl}' 
the  possession  of  the  bureau,  the  bailor  being  unaware  of  the  existence 
of  the  guineas.  If  the  bailee  in  that  case  had,  before  discovering  the 
guineas  in  the  secret  drawer,  negligently  lost  the  bureau  with  its  con- 
tents, it  is  difficult  to  see  how  he  could  have  been  made  responsil>le  for 
the  loss  of  the  guineas.  In  Merry  v.  Green,  7  M.  &  W.  623.  the  facts 
were  similar  to  Cartwright  v.  Green,  8  Ves.  405.  except  that  the  bureau 
had  been  sold  to  the  defendant.    In  that  case  Parke,  B.,  says  that  though 


SECT.  II.]  IIEOINA   V.    ASHWELL.  791 

there  was  a  deliveiy  of  the  bureau  to  the  defendant,  there  was  no  de- 
livery so  as  to  give  a  lawful  possession  of  the  purse  and  money  in  the 
secret  drawer.     If  these  cases  are  rightly  decided,  as  1  believe  them 
to  be,  they  establish  the  principle  tliat  a  man  has  not  possession  of  that 
of  the  existence  of  which  he  is  unaware.     A  man  cannot  without  his 
consent  be  made  to  incur  the  responsibilities  toward  the  real  owner 
which  arise  even  from  the  simple  possession  of  a  chattel  without  further 
title,  and  if  a  chattel  has  without  his  knowledge  been  placed  in  his 
custody,  his  rights  and  liabilities  as  a  possessor  of  that  cliattel  do  not 
arise  until  he  is  aware  of  the  existence  of  the  chattel  and  has  assented 
to  the  possession  of  it.     A  case  much  urged  upon  us  on  behalf  of  the 
prisoner  was  Rex  v.  Mucklow,  1  Moody's  Crown  Cases,  160.     In  that 
case  a  letter  containing  a  draft  for  £10  lis.   6f?.  had  been  delivered  to 
the  prisoner,  althougli  really  meant  for  another  person  of  the  same  name, 
and  the  prisoner  appropriated  the  draft,  and  was  tried  and  convicted  of 
larceny.     The  conviction,  however,  was  held  wrong  on  the  ground  that 
he  had  no  animus  fiirandi  when  he  first  received  the  letter.     Here,  as 
in  the  two  previous  cases,  the  pi'isoner  was  not  at  first  aware  of  the 
existence  of  the  draft,  and  when  he  became  aware  of  it  he  must  have 
known  that  it  was  not  meant  for  him,  yet  the  judges  seem  to  have  held 
that  he  got  possession  of  the  draft  at  the  time  when  the  letter  was 
handed  to  him.     In  Regina  v.  Davies,  Dearsley's  Crown  Cases,  G40,  the 
facts  were  similar  to  those  in  IMucklow's  case,  1  Moody's  Crown  Cases, 
161  ;  and  Erie,  C.  J.,  then  Erie,  J.,  who  tried  the  case,  directed  the 
jury  that  if  at  the  time  the  prisoner  received  the  order  he  knew  it  was 
not  his  property  but  the  property  of  another  person  of  known  name  and 
address,  and  nevertheless  determined  to  appropriate  it  wrongfully  to 
his  own  use,  he  was   guilty  of  larceny,  and  that  in  his  opinion  the 
prisoner  had  not  received  it  nntil  he  had  discovered,  by  opening  and. 
reading  the  letter,  whether  it  belonged  to  him  or  not.     "  I  considered," 
says  the  judge,  "  that  the  law  of  larceny  laid  down  in  respect  of  articles 
found  was  applicable  to  the  article   here   in  question."      The   court, 
however,  quashed  the  conviction  on  the  authority  of  Mucklow's  case, 
1  Moody's  Crown  Cases,  160.      In  Regina  v.  Middleton,  L.  Rep.  2 
C.  C.  38,  in  which  it  was  held  by  eleven  judges  against  four  that,  where 
there  was  a  delivery  of  money  under  a  mistake  to  the  prisoner,  who 
received  it  animo  furandi,  he  was  guilty  of  larceny,  there  occurs  a 
passage  in  the  judgment  of  some  of  the  judges  who  formed  the  majorit}-, 
which  is  as  follows:    "We  admit  that  the  case  is  undistinguishable 
from  the  one  supposed  in  the  argument,  of  a   person    handing  to  a 
cabman  a   sovereign  by  mistake  for  a   shilling;    but   after   carefully 
weighing  the  opinions  to  the  contrary,  we  are  decidedly  of  opinion  that 
the  property  in  the  sovereign  would  not  vest  in  the  cabman,  and  that 
the  question  whether  the  cabman  was  gnilty  of  larceny  or  not  would 
depend  upon  this,  —  whether  he,  at  the  time  he  took  the  sovereign,  was 
aware  of  the  mistake,  and    had   then   the  guilty  intent,  the  animus 
furandi."     For  my  part,  I  am  quite  unable  to  reconcile  the  cases  of 


792  KEGINA   V.    ASHWELL.  [CHAP.  XII. 

Rex  V.  Mucklow,  1  Moody  C.  C.  161  and  Regina  v.  Davies,  Dears. 
C.  C.  G40,  and  the  passage  I  have  cited  from  Reguia  v.  Middletou, 
L.  Rep.  2  C.  C.  38,  with  those  of  Cartwi-ight  v.  Green,  8  Ves.  405  and 
Merry  v.  Green,  7  M.  &  W.  623  ;  and  being  compelled  to  choose  be- 
tween them,  I  am  of  opinion  that  the  law  is  correctly  laid  down  in 
Merry  v.  Green,  7  M.  &  W.  623,  for  the  following  reasons  :  The  accept- 
ance by  the  receiver  of  a  pure  benefit  unmixed  with  responsibility  may 
fairly  be,  and  is  in  fact,  presumed  in  law  until  the  contrary  is  shown  ; 
but  the  acceptance  of  something  which  is  of  doubtful  benefit  should  not 
be  and  is  not  presumed.  Possession  unaccompanied  by  ownership  is 
of  doubtful  benefit;  for  although  certain  rights  are  attached  to  the 
possession  of  a  chattel,  they  are  accompanied  also  by  liabilities  toward 
the  absolute  owner  which  may  make  the  possession  more  of  a  burden 
than  a  benefit.  In  my  judgment,  a  man  cannot  be  presumed  to  assent 
to  the  possession  of  a  chattel ;  actual  consent  must  be  shown.  Now  a 
man  does  not  consent  to  that  of  which  he  is  wholly  ignorant ;  and  I 
think,  therefore,  it  was  rightly  decided  that  the  defendant  in  Merry  v. 
Green,  7  M.  &  W.  623,  was  not  in  possession  of  the  purse  and  money 
until  he  knew  of  their  existence.  Moreover,  in  order  that  there  may  be 
a  consent,  a  man  must  be  under  no  mistake  as  to  that  to  which  he 
consents  ;  and  I  think,  therefore,  that  Ashwell  did  not  consent  to  the 
possession  of  the  sovereign  until  he  knew  that  it  was  a  sovereign. 
Suppose  that  while  still  ignorant  that  the  coin  was  a  sovereign  he  had 
given  it  away  to  a  third  pei'son,  who  had  misappropriated  it,  could  he 
have  been  made  responsible  to  the  prosecutor  for  the  return  of  20s.  ? 
In  ni}' judgment  he  could  not.  If  he  had  parted  with  it  innocently, 
while  still  under  the  impression  that  it  was  onl}'  a  shilling,  I  think  he 
could  have  been  made  responsible  for  tlie  return  of  a  shilling  and  a 
shilling  onl}',  since  he  had  consented  to  assume  the  responsibilit3'  of  a 
possessor  in  respect  of  a  shilling  onl^^  It  may  be  said  that  a  carrier  is 
responsible  for  the  safe  custody  of  the  contents  of  a  box  delivered  to 
him  to  be  carried,  although  he  may  be  ignorant  of  the  nature  of  its 
contents  ;  but  in  that  case  the  carrier  consents  to  be  responsible  for  the 
safe  custody  of  the  box  and  its  contents,  whatever  they  may  happen  to 
be ;  and,  moreovei*,  a  carrier  is  not  responsible  for  the  loss  of  valuable 
articles  if  he  has  given  notice  that  he  will  not  be  responsible  for  such 
articles  unless  certain  conditions  are  complied  witli,  and  is  led  b}'  the 
consignor  to  believe  that  the  parcel  given  to  him  to  carry  does  not 
contain  articles  of  the  character  specified  in  the  notice.  Batson  v. 
Donovan,  4  B.  &  A.  21.  In  this  case,  Ashwell  did  not  hold  himself 
out  as  being  willing  to  assume  the  responsibilities  of  a  possessor  of  the 
coin,  whatever  its  value  might  be  ;  nor  can  I  infer  that  at  the  time  of 
the  delivery  he  agreed  to  be  responsible  for  the  safe  eustod}'  and  return 
of  the  sovei-eign.  As,  therefore,  he  did  not  at  the  time  of  delivery 
subject  himself  to  the  liabilities  of  the  borrower  of  a  sovereign,  so  also 
I  think  that  he  is  not  entitled  to  the  privileges  attending  the  lawful 
possession  of  a   borrowed   sovereign.     When  he  discovered  that  the 


SECT.  II.]  -  .  REGINA    V.   FLOWERS.  793 

coin  was  a  sovereign,  he  was,  I  think,  bound  to  elect,  as  a  finder  would 
be,  whether  he  would  assume  the  responsibilities  of  a  possessor ;  but 
at  the  moment  when  he  was  in  a  position  to  elect,  he  also  determined 
fraudulently  to  convert  the  sovereign  to  his  own  use ;  and  I  am  there- 
fore of  opinion  that  he  falls  within  the  principle  of  Regina  v.  Middleton, 
L.  Rep.  2  C.  C.  45,  and  was  guilty  of  larcen}-  at  common  law.  For  these 
reasons,  I  am  of  opinion  that  the  conviction  was  right.^ 


REGINA  V.   FLOWERS. 

Crown  Case  Reserved.     1886. 

[Reported  16  Cox  C.  C.  33.] 

Case  reserved  bj-  the  learned  Recorder  for  the  borough  of  Leicester, 
at  the  last  P^piphan}'  Quarter  Sessions  for  that  borough,  upon  the  trial 
of  an  indictment  which  charged  one  Charles  Flowers  with  having,  on 
the  31st  day  of  October,  1885,  while  being  servant  to  one  Samuel  Len- 
nard  and  another,  feloniously  stolen,  taken,  and  carried  awa}-  certain 
money  to  the  amount  of  seven  shillings  and  one  penn}-  halfpenny,  the 
propert}^  of  the  said  Samuel  Lennard  and  another,  his  masters. 

It  appeared  from  the  case  that  the  prisoner  had  been  for  about  three 
months  next  preceding  the  31st  day  of  October,  1885,  a  chcker  in  the 
service  of  Messrs.  Lennard  Brothers,  a  firm  of  shoe  manufacturers  in 
Leicester,  in  whose  establishment  the  following  mode  of  payment  of 
the  wages  of  their  employees  was  adopted,  namely :  — 

The  amount  of  wages  due  to  each  workman  was  calculated  from  the 
time-book  and  entered  into  the  wages-book.  Each  amount  was  then 
made  up  and  put  into  a  small  paper  bag,  which  was  then  sealed ;  and 
the  bags  so  secured  were  sent  to  the  various  rooms  in  which  the  men 
worked.  The  foreman  of  each  of  such  rooms  then  distributed  the  bags 
containing  the  wages  among  the  men  under  his  charge.  "When  a  mis- 
take occurred  the  workman  affected  thereby  took  his  bag  to  one  Francis 
Cufflin  (the  clerk)  to  have  the  mistake  rectified. 

On  the  31st  day  of  October  there  was  due  to  the  prisoner  the  sum 
of  sixteen  shillings  and  eight  pence,  and  after  the  workmen  had  been 
paid  their  wages  the  prisoner  came  to  Cufflin  and  said  that  he  was 
three  pence  short,  and  gave  him  the  bag  into  which  his  money  had 
been  put.  The  top  of  the  bag  had  been  torn  off,  and  the  bag  was 
empt3\  Another  workman  named  Jinks  had  also  come  to  Cufflin  for 
a  correction  in  his  money,  stating  that  fivepence  or  sixpence  was  due 

1  Concurring  opinions  were  delivered  by  Lord  Coleridge,  C.  J.,  and  De\man,  J. 
Grove  and  Hawkins,  JJ.,  Pollock  and  Hcddleston,  BB.,  also  concurred. 

In  accordance  with  the  opinion  of  Smith,  J.,  see  Reg.  v.  Jacobs,  12  Cox  C.  C 
151  ;  Bailey  v.  State,  .58  Ala.  414. 

In  accordance  with  the  opinion  of  Cave,  J.,  see  State  v,  Ducker,  8  Or.  394.  —  Ed. 


794  REGINA   V.   FLOWERS.  [ClUr.  XII. 

to  him,  and  had  handed  to  Cufflin  his  bag  with  seven  shillings  and 
eleven  pence  halfpenny  in  it.  Cutflin  thereupon  gave  the  prisoner  by 
mistake  Jinks's  bag,  and  also  three  pence  in  copper,  into  his  hand,  and 
the  prisoner,  having  received  Jinks's  bag,  went  away  immediately, 
and  in  tlie  presence  of  one  of  his  fellow-workmen  emptied  the  contents 
of  Jinks's  bag  into  his  hand,  saying,  "The  biter  has  got  bit;  he  has 
paid  me  double  wages."  He  then  turned  to  another  man  and  said, 
"  Come  on,  we'll  go  and  have  a  drink  on  it." 

At  the  close  of  the  case  for  the  prosecution,  it  was  submitted  on 
behalf  of  the  prisoner  that  there  was  no  case  to  go  to  the  jury,  as  the 
evidence  failed  to  show  that  the  prisoner  at  the  time  he  received  the 
seven  shillings  and  eleven  pence  halfpenny  from  Cufflin  had  the  aiii- 
mus  furandi,  or  guilty  mind,  er,sential  to  constitute  the  offence  of  lar- 
ceny, and  that  any  subsequent  fraudulent  appropriation  of  the  money 
by  the  prisoner  was  immaterial  in  so  far  as  the  offence  of  larceny  was 
concerned. 

The  learned  Recorder,  however,  held  that  there  was  evidence  to  go 
to  the  jury  of  the  prisoner  having  the  animus  furandi  at  the  time  he 
received  from  Cufflin  the  money,  and  he  also  ruled,  in  deference  to  the 
opinion  of  certain  of  the  learned  judges  in  Regina  v.  Ashwell,  53 
L.  T.  Rep.  N.  S.  773  ;  16  Cox  C.  C.  1  ;  16  Q.  H.  Div.  190 ;  55  L.  J. 
65,  M.  C,  that  if  the  prisoner  received  the  money  innocently  but  after- 
wards fraudulently  appropriated  it  to  his  own  use,  he  was  guilty  of  larceny. 
Having  directed  the  jury  to  this  effect,  he  put  to  them  the  following 
questions,  namely  :  — 

1.  Did  the  prisoner,  from  the  time  he  received  from  Cufflin  the  bag 
containing  the  seven  shillings  and  eleven  pence  halfpenny,  know  that 
it  did  not  belong  to  him?     To  this  the  jury  answered,  No. 

2.  Did  the  prisoner,  having  received  the  bag  and  its  contents  inno- 
cently, afterwards  fraudulently  appropriate  them  to  his  own  use?  And 
to  this  the  jury  answered.  Yes. 

The  learned  Recorder  thereupon  directed  a  verdict  of  guilty  to  be 
entered  on  the  first  count  of  th^  indictment,  which  was  that  above  set 
out,  and  reserved  the  question  for  the  consideration  of  this  court 
whether,  the  jury  not  having  found  affirmatively  that  the  prisoner  had 
the  animus  furandi  at  the  time  he  received  the  seven  shillings  and 
eleven  pence  halfpenny  from  Cufflin,  he  could  be  rightly  convicted  of 
larceny  by  reason  of  tlie  subsequent  fraudulent  appropriation  by  him 
of  the  said  mone}'  to  his  own  use. 

No  one  appeared  on  behalf  of  the  prosecution  or  the  prisoner. 

Lord  Coleridge,  C.  J.  This  case  might  have  raised  a  very  subtle 
and  interesting  question.  The  manner  in  which  the  learned  Recorder 
has  stated  it,  however,  raises  a  question  which  is  distinguishable  from 
that  which  was  raised  in  the  case  of  Regina  v.  Ashwell.  Now,  in  that 
case,  the  judges  who  decided  in  favor  of  the  conviction  never  meant 
to  question  that  which  has  been  the  law  from  the  beginning,  and  to 
hold  that  the  appropriation  of  chattels  which  had  previously  been  inno- 


SECT.  II.]  .  RF.GINA   V.   FLOWERS.  795 

cently  received  should  amount  to  the  offence  of  larceny.  If  that  case 
is  referred  to,  it  will  be  seen  that  I  myself  assumed  it  to  be  settled  law 
that  where  there  has  been  the  delivery  of  a  chattel  from  one  person  to 
another,  subsequent  misappropriation  of  that  chattel  by  the  person 
to  whom  it  has  been  delivered  will  not  make  him  guilty  of  larceny 
except  by  statute.  In  the  present  case,  however,  the  learned  Recorder 
appears  to  have  directed  the  jury  that,  if  the  prisoner  received  the 
7.S.  U^d.  innocently,  but  afterwards  fraudulently  appropriated  the 
money  to  his  own  use,  he  was  guilty  of  larceny.  But  no  such  rule 
was  intended  to  be  laid  down  in  Regina  v.  Ashwell,  and  the  direction 
of  tlie  learned  Recorder  was  not,  in  my  opinion,  in  accordance  with 
that  decision.  It  is  quite  possible  for  the  jury  to  have  considered  con- 
sistently with  that  direction  that  a  fraudulent  appropriation,  six  months 
after  the  receipt  of  the  money,  would  justify  them  in  finding  the  pris- 
oner guilty  of  larceny.  The  question  we  are  asked  is,  whether  the  jury 
not  having  found  affirmatively  that  the  prisoner  had  the  animus  fur  andi 
at  the  time  he  received  the  money,  he  was  rightly  convicted  of  larceny 
by  reason  of  the  subsequent  fraudulent  appropriation.  In  my  opinion 
he  was  not.  The  judgment  of  those  judges  who  affirmed  the  convic- 
tion in  Regina  v.  Ashwell,  if  carefully  read,  shows  that  they  considered 
that  to  justify  a  conviction  for  larceny  there  must  be  a  taking  posses- 
sion simultaneously  with  the  formation  of  the  fraudulent  intention  to 
appropriate,  and  that  was  not  the  case  here. 

Manistt,  J.  I  am  of  the  same  opinion.  The  difference  of  opinion 
among  the  judges  who  decided  the  case  of  Regina  v.  Ashwell  was  in 
the  appplication  to  the  particular  facts  in  that  case  of  the  settled  prin- 
ciple of  law  that  the  innocent  receipt  of  a  chattel,  coupled  with  the 
subsequent  fraudulent  appropriation  of  that  chattel,  does  not  amount 
to  larceny.  And  while  certain  of  the  judges  were  of  opinion  that  there 
had  been  a  fraudulent  taking  and  not  an  innocent  receipt,  and  held  that 
Ashwell  had  been  guilty  of  larceny,  the  others,  on  the  contrary,  were 
of  opinion  that  there  had  been  an  innocent  receipt,  and  that  therefore 
there  had  been  no  larceny.  I  am  glad  to  think  that  the  old  rule  of  law 
rem.ains  unaffected. 

Hawkins,  J.  The  old  rule  of  law  was  not  questioned  by  any  of 
the  judges  in  Regina  v.  Ashwell.  This  case  is  distinguishable,  for 
here  th^  learned  Recorder  told  the  jury  that  if  the  prisoner  received 
the  7s.  lUd.  innocently  but  afterwards  fraudulently  appropriated  that 
money  to  his  own  use,  he  was  guilty  of  larceny.  It  appears  clear  to 
me  tliat  that  direction  could  not  be  right,  and  that  the  learned  Recorder 
misapprehended  the  rule  of  law. 

Day,  J.  I  was  one  of  those  who  dissented  from  affirming  the  con- 
viction in  Regina  v.  Ashwell,  and  have  only  to  add  that,  in  my  opinion, 
this  conviction  cannot  be  supported. 

Grantham,  J.     I  am  of  the  same  opinion. 

Conviction  quashed. 


796  REGINA  V.   HEHIR.  [CHAP.  XII. 

REGINA  V.  HEHIR. 

Court  of  Crown  Cases  Reserved,  Ireland.     1895. 
[Eeporled  18  Cox  C.  C.  267.1] 

Case  reserved  by  the  Eight  Hon.  the  Lord  Chief  Baron,  as  follows: 
At  the  Assizes  for  the  Munster  Winter  Assize  County,  1894,  held  at 
Coik  under  the  provisions  of  the  Munster  Winter  Assize  County  Order, 
1864,  Denis  Hehir  was  tried  before  rae  and  a  common  jury  for  the 
larceny  of  "nine  pounds  sterling,  of  the  goods  and  chattels  of  one 
John  Leech ; "  but  during  the  course  of  the  trial,  upon  the  application 
of  Mr.  Bourke,  Q.  C,  counsel  for  the  Crown,  I  allowed  the  indictment 
to  be  amended  by  striking  out  the  words  "  nine  pounds  sterling,"  and 
substituting  therefor  the  words  "a  ten  pound  note."  A  copy  of  the 
indictment  is  contained  in  the  Appendix. 

Evidence  was  given  that  John  Leech,  the  master  of  the  brigantine 
Vzziah,  which  was  then  in  Limerick,  engaged  the  prisoner,  Denis 
Hehir,  to  assist  in  the  discharge  of  the  cargo.  On  the  20th  day  of 
September  last  Leech  owed  Hehir  for  work  done  in  such  discharge  the 
sum  of  21.  8.9.  ^d.  For  the  purpose  of  paying  this  sum  Leech,  on  said 
20th  day  of  September,  handed  the  prisoner  nine  shillings  in  silver  and 
two  bank  notes,  each  of  which  both  Leech  and  the  prisoner  believed  to 
be  a  \l.  note.  One  of  these  notes  was  in  fact  a  \Ql.  note.  The  prisoner 
left  taking  away  the  two  notes  with  him.  Within  twenty  minutes  after- 
wards Leech  discovered  his  mistake  and  went  in  search  of  the  prisoner, 
whom  he  found  within  half  an  hour  after  he  had  given  him  the  notes. 
Leech  told  the  prisoner  that  he  had  given  him  a  10/.  note  instead 
of  a  1/.  The  prisoner  alleged  that  he  had  already  clianged  boLh  the 
notes.  There  was  evidence  that  at  the  time  when  the  prisoner  first 
became  aware  that  the  note  was  for  10^.  (which  was  a  substantial 
period  after  it  had  been  handed  to  him  by  Leech)  he  fraudulently  and 
without  colour  of  right  intended  to  convert  the  said  note  to  h'sown  use, 
and  to  permanently  deprive  the  said  John  Leech  thereof,  and  tliat  to 
effectuate  such  intention  the  said  prisoner  shortly  afterwards  changed 
the  said  note  and  disposed  of  the  proceeds  thereof. 
■  Mr.  Bourke  referred  me  to  Reg.  v.  Ashwell  (16  Cox,  C.  C.  1)  and 
Reg.  V.  Flowers  (16  Cox  C.  C.  33  ;  54  L.  T.  Rep.  547). 

In  order  to  have  an  authoritative  decision  upon  the  question,  upon 
which  the  Court  for  Crown  Cases  Reserved  in  England  was,  in  Reg.  v. 
Ashwell,  equally  divided,  I  left  the  case  to  the  jury,  who  found  the 
prisoner  guilty,  and  I  reserved  for  this  Court  the  question  hereinafter 
stated.  I  allowed  the  prisoner  to  remain  out  on  bail  to  come  up  for 
sentence  at  the  next  assizes  for  the  county  of  the  city  of  Limerick. 

1  The  official  report  (1895),  2  Ir.  709,  gives  the  opinions  at  length.  —  Ed. 


SECT.  II.]  ■     EEGINA   V.   HEIIIR.  797 

I  request  the  opinion  of  tliis  Court  upon  the  question,  "  Whether  I 
ought  to  have  directed  a  verdict  of  acquittal  by  reason  of  the  prisoner 
not  having  had  the  animus  favaiuU  when  Leech  handed  him  the  10/. 

note?" 

Madden,  J.,  said :  I  consider  the  conviction  in  the  present  case  was 
good  at  common  law.  The  law  being  the  same  in  both  countries,  the 
English  cases  are  applicable.  We  are  not,  however,  absolved  by  Reg. 
V.  Ashwell  from  the  duty  of  forming  an  independent  judgment.  Does 
the  evidence  show  the  taking  by  Hehir  to  have  been  invito  domini  ? 
If  the  handing  of  the  note  by  Leech  to  Hehir  amounted  to  delivery,  no 
fraudulent  intention  would  suffice  to  constitute  larceny.  There  was  a 
fiscal  transfer.  Men  are  presumed  to  know  the  consequences  of  their 
own  acts.  Does  the  transfer  of  physical  possession,  made  under  such 
a  mistake,  amount  to  a  delivery  of  legal  possession?  I  think  not,  if  it 
is  accepted  under  a  common  mistake.  If  the  owner  intends  the  specific 
property  to  pass,  it  is  not  larceny ;  but  where  there  is  a  mistake  as  to 
identity,  it  is  different.  There  must  be  intelligent  delivery,  and  not  the 
mere  pliysical  fact  from  which  intelligence  is  absent.  I  rest  my  judg- 
ment on  the  fact  that  the  mistake  was  not  one  of  value,  but  of  identity ; 
not  the  paper  2^^^  ^^i  but  the  money  it  represents.  The  case  would  be 
plainer  if  the  exchange  were  carried  on,  as  in  some  nations,  by  means 
of  shells  or  precious  stones.  A  mistake  between  a  10?.  note  and  a  \l. 
is  the  same.  Any  consent  given  or  act  done  in  consequence  of  such 
mistake  can  have  no  legal  value  whatever.  The  case  of  Merry  v. 
Green  presents  no  substantial  or  essential  difference  to  the  present 
case.  It  was  a  case  of  transfer  of  physical  possession.  Delivery  was 
there  made  in  ignorance  of  the  existence  of  the  chattel.  In  either  case 
the  dominus  remained  invitus,  for  the  element  of  intelligent  delivery 
was  wanting.  Cases  of  finding  do  not  throw  much  light  on  the  ques- 
tion. Assuming  the  domimis  to  be  invitus,  was  there  any  felonious 
taking  of  the  money  at  all?  In  Reg.  v.  Middleton  the  question  was  not 
as  to  the  effect  of  knowledge  coincident  with  the  taking.  The  rule 
•which  governs  this  case  is  simple :  it  is,  "  A  man  to  whom  a  chattel  is 
delivered  under  a  mistake  as  to  its  identity  does  not  thereby  obtain 
legal  possession  ;  and  if  he  subsequently  learns  the  mistake  and  retains 
its  possession,  he  is  guilty  of  larceny." 

Gibson,  J.,  said  :  On  the  question  of  consent  or  non-consent  there  is  | 
no  substantial  difference  between  a  bank-note  and  any  other  chatteL 
First,  as  to  acquisition.  Legal  possession  imports  knowledge.  Here 
there  was  a  physical  delivery  without  knowledge.  Until  knowledge 
the  law  should  not  attribute  to  the  taker  the  object  of  taking  without 
consent.  If  upon  discovery  he  elects  to  return  the  chattel,  then  it 
amounts  to  custody  rather  than  possession  ;  if  he  appropriates,  then 
either  the  possession  becomes  wrongful,  or  then  and  there,  for  the  first 
time,  there  is  a  taking  out  of  possession  of  the  owner  of  the  chattel, 
which  previously  was  lost ;  he  commits  a  tort.  Secondly,  as  to  the 
lawfulness  of  the  possession.     Consent  to  possession  obtained  by  fraud 


798 


EEGINA    V.    HEHIR.  [CIIAP.  XII. 


or 


force  ammo  furandi  is  unlawful.  Physical  delivery  is  evidence  of 
consent,  but  is  rebuttable.  Even  without  animus  furandi  a  taker  who 
at  dehvery  is  aware  of  a  mistake,  his  possession  is  not  innocent.  The 
taker  there  is  not  misled.  The  question  of  consent  is  one  of  substance, 
not  of  form.  Delivery  under  mistake  does  not  work  an  estoppel.  The 
taker  is  bound  to  give  up  the  chattel  on  demand.  The  protection 
given  to  mistake  does  not  extend  to  wilful  fraud.  I  express  no  opin- 
ion on  the  question  of  bailment ;  it  was  not  argued.  Of  seven  cases 
relating  to  this  princii)le  of  mistake,  only  two  are  against  the  view  I 
take.  The  cases  on  lost  property  are  distinguishable.  The  bureau 
cases  seem  in  direct  conflict  with  the  post-office  cases.  Hehir,  who  is 
morally  a  rogue,  is  legally  a  thief. 

Holmes,  J.,  said :  All  acts  to  carry  legal  con.sequences  must  be  acts 
of  the  mind.  The  prosecutor  did  not  intend  to  give,  or  know  that  he 
was  giving,  and  Hehir  did  not  intend  to  receive,  or  know  he  was  receiv- 
ing ;  therefore  possession  remained  in  the  owner.  When  the  taker 
discovers  that  he  has  a  chattel  which  the  owner  did  not  intend  to  give, 
he  then  takes  it  the  first  time,  and  if  he  retains  it  he  is  guilty  of 
larceny. 

Murphy,  J.,  said  :  As  to  the  moral  aspect  of  the  defendant's  conduct 
it  was  clearly  just  as  bad  as  if  he  had  picked  the  owner's  pocket.  But 
it  is  said  that  in  consequence  of  the  means  he  adopted  he  is  not  guilty 
of  larceny.  The  case  is  governed  by  Reg.  v.  Ashwell,  where  fourteen 
judges  were  equally  divided. 

Johnson,  J.,  said :  In  my  opinion  Hehir  is  not  guilty,  because  a  man 
who  honestly  receives  a  chattel  with  consent  of  tlie  true  owner  cannot 
be  found  guilty  of  larceny.  Larceny  by  common  law  is  felonious  taking 
and  carrying  away  from  a  person.  It  must  be  felonious,  and  this  intent 
to  steal  must  be  when  it  comes  to  his  hand.  There  must  be  an  actual 
taking.  Hawkins,  in  his  "  Pleas  of  the  Crown,"  adopts  Coke's  defini- 
tion of  larceny.  We  are  not  here  concerned  with  what  the  law  of 
dishonesty  is ;  the  severity  of  the  ancient  criminal  law  led  to  the  dis- 
tinction I  refer  to,  but  still  the  principle  of  law  remains  to-day  the 
same.  Where  no  trespass  is  there  is  no  larceny  at  common  law.  Here 
there  was  no  trespass.  Leigh  gave  Hehir  two  notes,  1/.  and  10?.  He 
intended  to  give  Hehir  the  property  in  one  of  the  notes;  what  dif- 
ference is  there  from  the  giving  of  the  otiier  note  at  tlie  same  time? 
Hehir  had  no  animus  furandi  when  he  took  the  notes  and  obtained 
possession  of  them. 

Andrews,  J.,  said:  I  think  the  conviction  ought  to  be  quashed. 
I  think  the  property  in  the  note  immaterial  in  this  case ;  no  doubt  it 
did  not  pass  to  the  prisoner.  When  Leech  handed  the  notes  to  Hehir 
he  intended  to  give  Hehir  possession  of  the  thing  he  handed.  His 
intention  arose  from  mistake ;  that  does  not  show  that  the  intention 
does  not  exist.  In  fact,  he  handed  the  note  to  Hehir,  knowing  that  he 
was  handing  it  to  him.     A  man  can  take  and  be  in  possession  of  a 


SECT.  II.]  REGINA   V.    HEHIR.  799 

chattel  of  which  he  does  not  know  the  value,  or  believes  it  to  be  of  a 
different  value  or  qualit}'  from  its  real  value  or  quality.  As  regards 
taliing,  it  is  an  absolute  fiction  to  say  that,  although  Hehir  actually 
took  the  note  when  handed  to  him,  he  did  not  then  take  it,  but  only  at 
a  subsequent  time  when  he  discovered  it  was  something  different,  and 
that  he  then  took  it,  when  he  really  did  not  take  it  at  all,  for  he  had  it 
for  some  time  in  his  possession.  This  is  to  ignore  the  actual  taking, 
and  make  a  mere  movement  of  the  mind  amount  to  an  actual  taking. 
At  the  time  Hehir  received  possession  of  tlie  note  he  got  lawful  posses- 
sion of  it,  and  committed  no  trespass  whatever.  He  took  the  10/.  note 
innocently  and  with  the  consent  of  the  owner,  not  fraudulently  ;  there- 
fore he  is  not  guilty  of  larceny.  In  Reg.  v.  Ashwell  the  conviction  was 
not  affirmed,  but  stood  merely  because  it  was  not  quashed.  It  is  for 
the  Legislature  to  make  tliis  transaction  larceny. 

O'Brien,  J.,  said  :  The  question  of  consent  did  not  exist  in  the  owner's 
mind  as  to  the  10/.  B}'  his  own  act  he  put  it  into  the  possession  of 
Hehir.  The  latter  was  not  guilty  of  larcenj".  In  order  to  make  him  out 
so,  we  must  hold  that  he  "  feloniously  took,"  wlien  in  fact  he  did  not 
take  at. all.  We  must  invent  a  new  criminal  category  ;  he  is  a  "finder- 
out,"  by  an  operation  of  mind.  The  asportaoit  disappears  altogether 
in  this  case.  The  corporeal  transfer  cannot  be  left  out  in  the  idea  of 
larceny.  What  was  the  position  of  Hehir  between  the  taking  of  the 
article  and  the  discovery  of  the  mistake  by  him  ?  Excusable  detention, 
I  suppose.  He  is  then  a  party  innocent  at  first,  and  afterwards  guilt}'. 
I  do  not  consider  that  Reg.  v.  Ashwell  levels  all  the  previous  cases.  It 
was  a  divided  judgment.  No  crime  has  been  committed  in  this  case, 
only  a  moral  transgression,  as  to  which  the  law  has  not  hitherto  given 
effect  to  the  views  of  those  who  think  to  compass  the  sea  by  undertak- 
ing to  push  the  confines  of  crime  into  the  boundless  regions  of  dis- 
honest}'.     The  conviction  should  be  reversed. 

Pallks,  C.  B.,  said  :  I  admit  that  tlie  prisoner  in  this  case  was  a  dis- 
honest one,  but  it  is  punishable  not  hy  the  judges  but  by  the  Legislature. 
Reg.  V.  Mucklow,  Reg.  v.  Davies,  and  Reg.  v.  Middleton  are  all  against 
the  conviction.  Reg.  v.  Ashwell  said  the  two  first  were  overruled.  In 
it  the  opinion  of  seven  judges  was  adverse  to  a  conviction  in  a  case  like 
the  present.  For  fifty-eight  years  there  was  an  unbroken  series  of  de- 
cisions that  acts  similar  to  that  of  tlie  prisoner  were  not  larceny.  In 
Reg.  V.  Ashwell  a  technical  rule  maintained  the  conviction.  Cartwright 
V.  Green  and  Merr}'  v.  Green,  cited  for  tlie  Crown,  are  civil  cases. 
I  doubt  the  right  of  the  Court  for  Crown  Cases  Reserved  in  England 
to  reverse  a  previous  decision  of  their  own  Court  in  a  previous  case. 
There  is  no  inconsistency  between  these  two  civil  cases  (neither  of 
which  was  decided  by  a  court  of  equal  authority  with  that  of  the  Court 
for  Crown  Cases  Reserved)  and  the  criminal  cases.  In  both  the  bailor 
and  bailee  were  ignorant  of  the  existence  of  the  chattel.  There  was  no 
intentional  manual  delivery  of  the  chattel.     There  was  that  knowledge 


800  EEGINA   V.    HEHIR.  [CHAP.  XII. 

in  the  present  case.  Reg.  v.  Ashwell  has  not  a  single  prior  case  to 
support  it.  It  was  a  case  of  first  impression.  The  ground  npon  which 
it  was  arrived  at  is  given  in  the  judgment  of  Coleridge,  C.  J.,  in  whose 
mind  there  must  have  been  some  serious  misapprehension.  I  hold  that 
it  would  not  be  competent  to  the  court  in  England  to  uphold  the  con- 
viction in  Reg.  v.  Ashwell,  and  it  is  only  b}-  following  that  case  that  it 
can  be  upheld  in  the  present  case.  As  regards  written  contracts,  see 
Scott  V.  Littledale  (8  E.  &  B.  815).  In  written  instruments  the  inten- 
tion must  be  gathered  from  the  writing.  Wh}'  should  a  man  not  be 
held  to  intend  that  which  is  the  consequence  of  his  act?  So  long  as 
Hehir  believed  the  note  to  be  for  11.,  the  prosecutor  cannot  be  heard 
to  say  that  he  had  not  the  intention  of  parting  with  it,  and  till  the  dis- 
coverj-  of  the  mistake  Hehir  had  lawful  possession  of  it.  There  is  no 
difference  between  the  case  here  and  that  of  a  person  counting  notes 
and  giving  nine  notes  instead  of  ten.  Hehir  migljt  lawfully  detain  the 
101.  note  till  he  had  an  opportunity  of  changing  it  and  giving  back  9/. 
to  Leech.  Hehir  must  have  had  lawful  possession  antecedent  to  the 
discovery  of  the  mistake,  and  that  discovery  cannot  by  relation  back 
change  the  character  of  the  antecedent  possession,  which  was  Hehir's 
possession,  into  that  of  Leech.  Hehir  was  not  guilty  of  larceny  at 
common  law. 

Sir  Peter  O'Er/en,  Bart,  C.  J.,  in  agreeing  with  the  Chief  Baron, 
referred  to  Reg.  v.  Flower,  and  said :  "  The  innocent  receipt  of  a 
chattel  and  its  subsequent  appropriation  does  not  constitute  larcen}-. 
Leech  gave  unreservedly,  Hehir  honestly  received.  The  fact  of  his 
mistaken  belief  made  Leech  give  the  note  without  any  reservation 
whatever.  Reg.  v.  Mucklow  was  recognized  in  Reg,  v.  Davies,  although 
not  argued  at  the  Bar.  It  was  a  moot  point  among  the  judges.  It  is 
not  consistent  with  Cartwright  v.  Green.  There  was  here  no  felonious 
taking.     However  we  dLslike  the  law  we  must  follow  it. 

27ie  conviction  was  accordingly  quashed. 


SECT.  11.]  EEGINA    V.   TOWNLEY.  801 


SECTION   II.  (continued). 

(d)  Tortious  Possession. 

REGINA  V.   TOWNLEY. 
Crown  Case  Reserved.     1871. 

[Reported  12  Cox  C.  C.  59.] 

Case  reserved  for  the  opinion  of  this  court  b}-  Mr.  Justice  Black- 
burn. 

The  prisoner  and  one  George  Dunkle}'  were  indicted  before  me  at  the 
Northampton  Spring  Assizes  for  stealing  126  dead  rabbits. 

In  one  count  they  were  laid  as  the  property  of  William  HoUis  ;  in 
another  as  being  the  property  of  the  Queen. 

There  were  also  counts  for  receiving. 

It  was  proved  that  Selsey  Forest  is  the  propertj-  of  her  Majesty. 

An  agreement  between  Mr.  HoUis  and  the  Commissioners  of  the 
Woods  and  Forests  on  behalf  of  her  Majesty  was  given  in  evidence, 
which  I  thought  amounted  in  legal  effect  merely  to  a  license  to  Mr. 
HoUis  to  kill  and  take  awa^'  the  game,  and  that  the  occupation  of  the 
soil  and  all  rights  incident  thereto  remained  in  the  Queen.  No  point, 
however,  was  reserved  as  to  the  proof  of  the  property  as  laid  in  the 
indictment. 

The  evidence  showed  that  Mr.  Hollis's  keepers,  about  eight  in  the 
morning  on  the  23d  of  September,  discovered  126  dead  and  newly  killed 
rabbits  and  about  400  yards  of  net  concealed  in  a  ditch  in  the  forest 
behind  a  hedge  close  to  a  road  passing  through  the  forest. 

The  rabbits  were  some  in  bags  and  some  in  bundles,  strapped  to- 
gether by  the  legs,  and  had  evidently  been  placed  there  as  a  place  of 
deposit  by  those  who  had  netted  the  rabbits. 

The  keepers  lay  in  wait,  and  about  a  quarter  to  eleven  on  the  same 
day  Townley  and  a  man,  who  escaped,  came  in  a  cab  driven  by  Dunk- 
ley  along  the  road.  Townley  and  the  man  who  escaped  left  the  cab  in 
charge  of  Dunkley  and  came  into  the  forest  and  went  straight  to  the 
ditch  where  the  rabbits  were  concealed  and  began  to  remove  them. 

The  prisoners  were  not  defended  by  counsel- 
It  was  contended  by  the  counsel  for  the  prosecution  that  the  rabbits 
on  being  killed  and  reduced  into  possession  b}-  a  wrong-doer  became 
the  property  of  the  owner  of  the  soil,  in  this  case  the  Queen  (Blades  r. 
Higgs,  7  L.  T.  N.  S.  798,  834)  ;  and  that  even  if  it  was  not  larceny  to 
kill  and  carr}'  away  the  game  at  once,  it  was  so  here,  because  the  kill- 
ing and  carrj'ing  awa}*  was  not  one  continued  act. 

1  Hale,  P.  C.  510,  and  Lee  v.  Risdon,  7  Taunt.  191,  were  cited. 

The  jurv,  in  answer  to  questions  from  me,  found  that  the  rabbits 

51 


802 


KEGINA   V.    TOWNLEY.  [CHAP.  XII, 


had  been  killed  by  poachers  in  Selsey  Forest,  on  land  in  the  same  occu- 
pation and  owncrsliip  as  the  spot  where  tliey  were  found  hidden. 

Tliat  Townley  removed  them,  knowing  that  they  had  been  so  killed, 
but  that  it  was  not  proved  that  Dunkley  had  any  such  knowledge. 

I  thereupon  directed  a  verdict  of  not  guilty  to  be  entered  as  regarded 
Dunkley,  and  a  verdict  of  guilty  as  to  Townley,  subject  to  a  case  for 
the  Court  of  Criminal  Appeal. 

It  is  to  be  taken  as  a  fact  that  the  poachers  had  no  intention  to 
abandon  the  wrongful  possession  of  the  rabbits  which  they  had  acquired 
by  taking  them,  but  i^laced  them  in  the  ditch  as  a  place  of  deposit  till 
they  could  conveniently  remove  them. 

The  question  for  the  court  is,  whether  on  these  facts  the  prisoner 
was  properly  convicted  of  larceny. 

The  prisoner  was  admitted  to  bail. 

Colin  Blackburn. 

No  counsel  appeared  to  argue  on  either  side. 

BoviLL,   C.  J.   {after  stating   the  facts).      The  first  question  that 
arises  is  as  to  the  nature  of  the  property.     Live  rabbits  are  animals 
ferm  naturce,  and  are  not  the  subject  of  absolute  property ;  though  at 
the  same  time  they  are  a  particular  species  of  property  ratione  soli,  — 
or  rather  the  owner  of  the  soil  has  the  right  of  taking  and  killing  them, 
and  as  soon  as  he  has  exercised  that  right  they  become  the  absolute 
property  of  the  owner  of  the  soil.     That  point  was  decided  in  Blades  v. 
Higgs.  supra,  as  to  rabbits,  and  in  Lonsdale  v.  Rigg,  26  L.  J.  196, 
Ex.,  as  to  grouse.     In  this  case  the  rabbits  having  been  killed  on  land 
the  property  of  the  Crown,  and  left  dead  on  the  same  ground,  would 
therefore  in  the  ordinary  course  of  things  have  become  the  property  of 
the  Crown.     But  before  a  person  can  be  convicted  of  larceny  of  a  thing 
not  the  subject  of  larceny  in  its  original  state,  as,  e.  5'.,  of  a  thing  at- 
tached to  the  soil,  there  must  not  only  be  a  severance  of  the  thing  from 
the  soil,  but  a  felonious  taking  of  it  also  after  such  severance.     Such 
is  the  doctrine  as  applied  to  stealing  trees  and  fruit  therefrom,  lead  from 
buildings,  fixtures,  and  minerals.     But  if  the  act  of  taking  is  continu- 
ous with  the  act  of  severance,  it  is  not  larceny.     The  case  of  larceny  of 
animals  ferae  nature^  stands  on  the  same  principle.     Where  game  is 
killed  and  falls  on  another's  land,  it  becomes  the  property  of  the  owner 
of  the  land  ;  but  the  mere  fact  that  it  has  fallen  on  tiie  land  of  another 
does  not  render  a  person  taking  it  up  guilty  of  larceny,  for  there  must 
be  a  severance  between  the  act  of  killing  and  the  act  of  taking  the  game 
away.     In  the  present  case  we  must  take  it  that  the  prisoner  was  one 
of  the  poachers  or  connected  with  them.     Under  these  circumstances 
we  might  come  to  the  conclusion  that  it  was  a  continuous  act,  and  that 
the  poachers  netted,  killed,  packed  up,  and  attempted  to  carry  away 
the  rabbits  in  one  continuous  act,  and  therefore  that  the  prisoner  ought 
not  to  have  been  convicted  of  larceny. 

Martin,  B.     I  am  of  the  same  opinion.     It  is  clear  that  if  a  person 


SECT.  II.]  REGINA   V.    TOWNLEY.  803 

kills  rabbits  and  at  the  same  time  carries  them  away,  he  is  not  guilty 
of  larcen}'.  Then,  when  he  kills  rabbits  and  goes  and  hides  them  and 
comes  back  to  carry  them  away,  can  it  be  said  that  is  larceny?  A 
passage  from  Hale's  P.  C.  510,  "  If  a  man  comes  to  steal  trees,  or  the 
lead  otf  a  church  or  house,  and  sever  it,  and  after  about  an  hour's  time 
or  so  come  and  fetch  it  away,  it  is  felony,  because  the  act  is  not  con- 
tinuated,  but  interpolated,  and  in  that  interval  the  property  lodgeth  in 
the  right  owner  as  a  chattel,  and  so  it  was  argued  by  the  Court  of  King's 
Bench,  9  Car.  1,  upon  an  indictment  for  stealing  the  lead  off  West- 
minster Abbe}',"  was  relied  on  by  the  prosecution.  There  is  also  a 
dictum  of  Gibbs,  C.  J.,  to  the  same  effect  in  Lee  v.  Risdon,  7  Taunt. 
191.  I  am  not  insensible  to  the  effect  of  those  dicta;  but  here  we 
must  take  it  as  a  fact  that  the  poachers  had  no  intention  to  abandon 
possession  of  the  rabbits,  but  put  them  in  the  ditch  for  convenience 
sake  ;  and  I  concur  in  thinking  that  the  true  law  is  that,  when  the 
poachers  go  back  for  the  purpose  of  taking  them  away,  in  continuation 
of  the  original  intention,  it  does  not  amount  to  larcen}'. 

Bramwell,  B.  Our  decision  does  not  appear  to  me  to  be  contrary 
to  what  Lord  Hale  and  Gibbs,  C.  J.,  have  said  in  the  passages  referred 
to.  If  a  man  having  killed  rabbits  on  the  land  of  another,  gets  rid  of 
them  because  he  is  interrupted  and  then  goes  away  and  afterwards 
comes  back  to  remove  the  rabbits,  that  is  a  larceny  ;  and  so,  if  on  being 
pursued,  he  throws  them  away  ;  and  it  is  difficult  to  perceive  any  dis- 
tinction where  the  owner  of  a  chattel  attached  to  the  freehold  finds  it  on 
his  land  severed,  and  the  person  who  severed  it  having  abandoned  it 
afterwards  comes  and  takes  it  away.  It  is  in  those  cases  so  left  as  to 
be  in  the  possession  of  the  true  owner,  and  the  act  is  not,  as  Lord  Hale 
expresses  it,  continuated.  In  this  case,  however,  the  rabbits  were  left 
by  the  poachers  as  trespassers  in  a  place  of  deposit,  though  it  hap- 
pened to  be  on  the  land  of  the  owner ;  and  it  is  just  the  same  as  if  the}' 
had  been  taken  and  left  at  a  public  house  or  upon  the  land  of  a  neigh- 
bor. If  they  had  been  left  on  the  land  of  a  neighbor  or  at  a  public 
house,  could  it  have  been  said  to  be  larceny?  Clearly  not ;  and  if  not 
wh}'  is  it  larceny  because  the  poachers  left  them  in  a  place  of  deposit 
on  the  owner's  own  land  ?  It  seems  to  me  that  the  case  is  not  within 
the  dicta  of  Lord  Hale  and  Gibbs,  C.  J.,  but  that  here  the  act  was  con- 
tinuous, and  that  there  was  an  asportation  by  the  poachers  to  a  place 
of  deposit,  where  they  remained  not  in  the  owner's  possession. 

Bylks,  J.  I  cannot  say  that  I  have  not  entertained  a  doubt  in  this 
case ;  but  upon  the  whole  I  think  that  this  was  not  larcen}'.  The 
wrongful  taking  of  the  rabbits  was  never  abandoned  by  the  poach- 
ers, for  some  of  the  rabbits  were  in  their  bags.  It  could  hardly  be  said 
that  if  a  poacher  dropped  a  rabbit  and  afterwards  picked  it  up  that 
could  be  converted  into  larceny,  yet  that  would  follow  if  the  conviction 
were  upheld. 

Blackburn,  J.  I  am  of  the  same  opinion.  Larcen}'  has  alwaj's  been 
defined  as  the  taking  and  carrying  away  of  the  goods  and  chattels  of 


804  EEGINA   V.    TOTVyiET.  [C'TAP.  Xn. 

another  person  ;  and  it  was  very  early  settled  where  the  thing  taken  was 
not  a  chattel,  as  where  a  tree  wtis  cut  down  and  carried  away,  that  was 
not  larceny,  because  the  tree  was  not  taken  as  a  chattel  out  of  the  owner's 
possession  and  because  the  severance  of  the  tree  was  accompanied  by 
the  taking  of  it  away.  The  same  law  apphed  to  fruit,  fixtures,  min- 
erals, and  the  like  things,  and  statutes  have  been  passed  to  make  steal- 
ing in  such  cases  larceny.  Though  in  the  House  of  Lords,  in  Blades  i'. 
Higgs,  it  was  decided  tliat  rabbits  killed  upon  land  became  the  prop- 
erty of  the  owner  of  the  land,  it  was  expressly  said  that  it  did  not  fol- 
low that  every  poacher  is  guilt v  of  larceny,  because,  as  Lord  Cran worth 
said,  "Wild  animals  whilst  living,  though  they  are,  according  to  Lord 
Holt,  the  property  of  the  owner  of  the  soil  on  which  they  are  living,  are 
not  his  personal  chattels  so  as  to  be  the  subject  of  larceny.  They  par- 
take while  living  of  the  quality  of  the  soil,  and  are.  like  growing  fruit, 
considered  as  part  of  the  realty.  If  a  man  enters  my  orchard  and  fills 
a  wheelbarrow  with  apples,  which  he  has  gathered  from  my  trees,  lie  is 
not  guilty  of  larceny,  though  he  has  ceitainly  possessed  himself  of  my 
property  ;  and  the  same  principle  is  applicable  to  wild  animals."  Tbe 
principle  is  as  old  as  11  Year  Book  (par.  33),  where  it  is  reported  that 
a  forester  who  had  cut  down  and  carried  away  trees  could  not  be  ar- 
raigned for  larceny  though  it  was  a  breach  of  trust :  but  it  was  said  it 
would  have  been  a  different  thing  if  the  lord  of  the  forest  had  cut  down 
the  trees  and  the  forester  had  carried  them  away,  then  that  would  have 
been  larceny.  So  that  in  the  case  of  wild  animals  if  the  act  of  killing 
and  reducing  the  animals  into  possession  is  all  one  and  continuous, 
the  offence  is  not  larceny.  The  jury  have  found  in  this  case  that  the 
prisoner  knew  all  about  the  killing  of  the  rabbits,  and  that  they  were 
lying  in  the  ditch.  It  is  clear  that  during  the  three  hours  they  were 
lying  there,  no  one  had  any  physical  iX)S5ession  of  them  and  that  they 
were  still  left  on  the  owners  soil ;  but  I  do  not  see  that  that  makes  any 
difference.  Then  there  is  the  statement  from  Hale's  P.  C.  .510,  where 
it  is  said  that  larceny  cannot  be  committed  of  things  that  adhere  to  the 
freehold,  as  trees,  or  lead  of  a  house,  or  the  like,  yet  that  the  Court  of 
King's  Bench  decided  that  where  a  man  severed  lead  from  Westminster 
Abbey  and  after  about  an  hour's  time  came  and  fetched  it  away,  it  was 
felony,  because  the  act  is  not  continuous  but  interpolated;  and  Lord 
Hale  refers  to  Dalton.  c.  103,  p.  166;  and  Gibbs,  C.  J.,  expressed 
the  same  view  very  clearly  in  Lee  v.  Risdon.  Xow  if  that  is  to  be  un- 
derstood as  my  brother  Bramwell  explained.  I  have  no  fault  to  find  with 
it;  but  if  it  is  to  be  said  that  the  mere  fact  that  the  chattel  ha\-ing  been 
left  for  a  time  on  the  land  of  the  owner  has  thereby  remained  the 
owner's  property,  and  that  the  person  coming  to  take  it  away  can  be 
convicted  of  larceny,  I  cannot  agree  with  it  as  at  present  advised.  If 
we  are  to  follow  the  view  taken  by  my  brother  Bramwell  of  these  authori- 
ties, they  do  not  apply  here,  for  no  one  could  suppose  that  the  poachers 
ever  parted  with  the  possession  of  the  rabbits.  I  agree  that  in  point 
of  principle  it  cannot  make  any  difference  that  the  rabbits  were  left  an 


SECT.  II.] 


EEGIXA    V.    FOLEY. 


805 


hour  or  so  in  a  place  of  depo.sit  ou  the  owner's  land.  The  passage  from 
Lord  Hale  may  be  understood  in  the  way  my  brother  Bramwell  has 
interpreted  it,  and  if  so  the  facts  do  not  bring  this  case  within  it. 

Conviction  ij^uashed.^ 


REGINA  V.  FOLEY. 

Crown  Case  Reserved.   LiELAXD.     1889. 

[Reported  26  Law  Reports  [Ireland),  299.] 

Case  reser\'ed  by  Mr.  Justice  Gibson  as  folluws  for  the  opinion  of 
this  court :  — 

The  accused,  Edward  Foley,  was  tried  l)efore  me  at  Maryborough 
Summer  Assizes,  188'J,  for  tlie  Queen's  County,  for  larceny  of  hay. 
The  indictment  was  at  common  law. 

Foley  had  been  tenant  to  a  Mr.  Kemmis  of  part  of  the  lands  of 
Ballyadams  in  said  county,  but  his  tenancy  had  been  determined  by  a 
civil-bill  decree  in  ejectment,  dated  the  1st  .January,  1888,  which  was 
duly  executed,  and  possession  taken  ou  the  27th  April,  1888,  when  the 
house  on  the  premises  was  levelled. 

Ou  August  the  10th,  1888,  the  accused  was  seen  by  the  police  cutting 
meadow  on  the  said  lands  with  a  scythe.  On  the  11th  he  was  again 
seen  cutting  meadow  there.  A  police  constable  went  to  him  there  and 
said,  "He  was  glad  some  one  would  be  responsible  for  the  cutting," 
when  Foley  replied,  '•  He  might  as  well  have  it  as  the  landlord." 

Ou  the  13th  August  Foley  proceeded  to  rake  up  the  hay,  which  was 
then  lying  scattered  in  the  field,  and  put  it  into  a  cart.  He  took 
altogether  ten  or  twelve  cwt.,  and  brought  it  away  in  the  direction  of 
Athy. 

Mr.  Leamy,  counsel  for  the  prisoner,  contended  that  there  was  no 
larceny,  as  the  indictment  was  at  common  law,  and  the  taking  was  one 
continuous  act:  relying  on  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315. 

Mr.  MoUoy,  Q.  C,  for  the  Crown,  contra,  contended  that  the  hay 
was  to  be  deemed  in  the  possession  of  Mr.  Kemmis  at  the  time  when 
the  prisoner  removed  it. 

In  reply  to  a  question  put  by  me  the  jury  said  that  the  prisoner  did 
not  abandon  possession  of  the  grass  cut  between  the  time  of  cutting 
and  time  of  removing  the  same. 

It  must  be  taken  tliat  Mr.  Kemmis  was  in  possession  of  the  evicted 
farm  at  the  time  when  the  grass  was  cut  and  removed.  There  was  no 
evidence  of  any  act  done  by  Mr.  Kemmis,  or  any  person  on  his  behalf, 
on  the  evicted  farm  from  the  date  of  eviction  until  the  removal  of  the 
hay ;  nor  was  there  any  evidence  of  any  act  done  by  the  prisoner  in 
reference  to  the  farm  or  the  grass  cut.  save  as  above  stated. 


'=^ 


n. 


^' 


1  Ace.  Reg.  v.  Fetch,  U  Cox  C.  C.  116.  —  Ed. 


806  EEGINA   V.   FOLEY.  [CHAP.  XII. 

Mr.  Mollo}',  Q.  C,  further  contended  that  there  was  no  evidence  to 
support  the  special  finding. 

I  advised  the  jury  to  convict  the  prisoner,  which  they  did,  but  I  did 
not  sentence  him,  and  he  stands  out  on  his  own  recognizance,  pending 
the  decision  of  this  case. 

The  question  for  the  court  is,  whether,  on  these  facts,  the  prisoner 
was  properly  convicted  of  larceny. 

J.  G.  Gibson.^ 

M  .Leamy,  for  the  prisoner. 

Jlolloy,  Q.  C,  with  him  T.  P.  Law,  Q.  C,  for  the  Crown. 

Gibson,  J.^  I  reserved  this  case  for  the  purpose  of  settling  a  ques- 
tion arising,  or  supposed  to  arise,  on  the  decision  in  Reg.  v.  Townle}-, 
L.  R.  1  C.  C.  R.  315.  The  evidence  is  meagre.  Assuming  that  the 
cutting  of  the  meadow  hy  the  accused  was  some  evidence  of  an  assump- 
tion of  possession  of  the  grass  cut,  there  was  no  evidence,  in  ray  opinion, 
of  an}'  effective  possession  by  him  of  the  grass  so  cut  and  left  lying  on 
the  owner's  ground  from  that  time  until  it  was  carried  away,  —  though 
it  must  be  taken  that  Foley  did  not  intend  to  abandon  such  grass.  On 
these  facts  prisoner's  counsel,  relying  on  Reg  v.  Townley,  L.  R.  1  C.  C. 
R.  315,  contended  that  the  prisoner  could  not  be  convicted  of  larcen}'. 
The  authorities  cited  by  Mr.  Molloy,  Q.  C.  (to  which  may  be  added 
East,  PI.  Cr.,  vol.  2,  p.  587,  and  Gabbett,  Crim.  Law,  p.  557),  estabhsh 
that  where  a  thief,  after  severing  things  parcel  of  the  realty,  left  the 
chattels  so  severed  on  the  proprietor's  soil,  and  after  an  interval  came 
again  and  took  them  away  he  would  be  guilty  of  larceny  at  common  law, 
the  chattels  being  at  the  time  of  removal  in  the  constructive  possession 
of  the  rightful  owner.  The  principle  of  common  law  would  seem  to  be 
that,  when  the  wrong-doer's  actual  and  effective  possession  ceases  he 
cannot  be  deemed  to  be  in  constructive  possession,  and  that  such  con- 
structive possession  of  the  severed  chattels,  crops,  fixtures,  or  other- 
wise, becomes  vested  in  the  rightful  owner,  on  whose  land  they  are 
left,  b}-  virtue  of  his  right  to  possession. 

For  the  prisoner  it  was  argued  that  Townley's  case,  L.  R.  1  C.  C.  R. 
315,  is  an  authority  against  this  view,  and  that  if  wrongful  possession  is 
once  acquired  by  the  thief,  the  fact  that  he  may  afterwards  before  re- 
moval cease  to  be  in  eflfective  occupation  and  control  is  immaterial,  if  he 
does  not  intend  to  relinquish  the  wrongful  possession,  and  in  pursuance 
of  his  original  intent  comes  and  takes  away  the  propeit}-. 

That  this  contention  may  not  be  entirely  without  color  is  shown  by 
the  way  Townley's  case,  L.  R.  1  C.  C.  R.  315,  is  treated  by  well-known 
writers.  Thus,  Mr.  R.  S.  Wright,  in  his  Essay  on  Possession,  at  p.  231, 
says  :  "  It  was  formerly  supposed  that  the  mere  leaving  of  the  thing  by 
the  taker  on  the  owner's  premises  for  a  time  of  itself  vested  a  posses- 
sion in  the  owner,  so  as  to  make  a  re-occupation  by  the  taker  a  trespass 

1  Argnments  are  omitted. 

2  Johnson,  J.,  and  Morris,  C.  J.,  delivered  opinions  in  favor  of  conviction,  and 
Harrison,  O'Brien,  and  Andrews,  JJ,  concurred  with  the  majority  of  the  court. 


SECT.  II.}  REGINA  V.   FOLEY. 


80' 


and  {animus  furandi  being  present)  a  theft.  But  it  seems  clear  that 
such  a  relinquishment  is  merely  evidence  of  an  abandonment,  general  or 
to  the  owner,  more  or  less  conclusive  according  to  the  circumstances." 
So  in  the  last  edition  of  Archbold  Criminal  Law,  at  p.  363,  it  is 
stated  there  is  no  larceny  unless  the  "  wrong-doer  had  between  the 
severance  and  the  taking  away  intended  to  abandon  his  wrongful  pos- 
session of  the  article  severed."  In  my  opinion  Townley's  case,  L.  K. 
1  C.  C.  R.  315,  does  not  decide  what  is  supposed.  The  continuity  of 
transaction  contemplated  by  the  common  law  as  excluding  larceny  may 
be  considered  from  the  point  of  view  of  time,  act,  and  possession.  The 
principal  elerment  being  possession,  if  the  thief  is  in  continuous  posses- 
sion, the  occurrence  of  an  interval  of  time  between  the  taking  and  the 
carrying  away  can  of  itself  make  no  difterence.  Townley's  case,  L.  K. 
1  C.  C.  R.  315,  only  decides  :  (1)  that  where  there  is  evidence  of  actual 
possession  continuing,  the  fact  that  there  is  an  interval  of  time  between 
the  taking  and  carrying  away  does  not  constitute  larceny  wliere  the 
wrong-doer's  intention  is  not  abandoned  and  the  transaction  is  in  sub- 
stance continuous ;  (2)  that  chattels  may  be  in  the  thiefs  possession, 
though  left  on  the  owner's  land  (the  chattels  there  being  rabbits  which 
were  not  subject  of  property  until  killed).  The  expressions  "abandon  " 
and  "  intention  to  abandon,"  found  in  the  report  of  Townley's  case,  L. 
R.  1  C.  C.  R.  315,  though  not  inappropriate  when  read  with  reference  to 
the  special  facts  of  that  case,  are  liable  to  misconstruction  if  euii)loyed 
in  reference  to  such  a  case  as  that  before  us.  Where  chattels  after 
severance  are  left  <Si\  the  property  of  the  true  owner,  no  matter  what 
the  wrong-doer's  intention  may  be,  he  cannot  escape  the  common-law 
doctrine,  if  his  possession  is  not  in  fact  continuous.  Continuity  of 
intention  is  not  the  equivalent  of  continuity  of  possession.  The 
transaction  here  was  not  continuous,  and  the  conviction  is  right. 

Holmes,  J.  I  think  that  the  solution  of  the  question  reserved  in 
this  case  depend^  upon  whether  there  is  any  evidence  that  the  grass  or 
hay  was  not  in  the  possession  of  the  true  owner  in  the  interval  Itetween 
the  severance  and  removal.  When  the  grass  was  growing  it  belonged 
to  the  owner  of  the  land  ;  but  although  he  was  in  possession  of  it  as 
part  of  the  land,  he  was  not  in  possession  of  it  as  a  personal  chattel. 
It  first  became  capable  of  being  the  subject  of  larceny  when  it  was 
severed.  It  is,  I  think,  clear  that  where  it  is  severed  by  a  wrong-doer, 
and,  as  part  of  one  continuous  transaction,  it  is  carried  away  by  him, 
there  is  no  larceny.  In  such  a  case  it  has  never,  as  a  personal  chattel, 
been  in  the  possession,  actual  or  constructive,  of  the  true  owner.  It 
has  been  continuously  in  the  actual,  though  perliaps  not  always  in 
the  physical,  possession  of  the  wrong-doer.  In  the  case  before  us  the 
defendant,  having  cut  the  grass,  left  it  on  the  lands.  Beyond  the 
severance  he  did  no  act  of  any  kind  evidencing  actual  possession  on 
his  part,  and  for  two  days  the  owner  of  the  land  had,  it  seems  to  me, 
precisely  the  same  kind  of  possession  of  it  as  he  would  have  had  if  it 
bad  been  cut  and  left  there  by  his  own  servant. 


SOS  REGINA   V.   FOLEY.  [CHAP.  XII. 

There  cannot,  I  conceive,  be  constructive  as  distinguidied  from 
actual  possession  by  a  wrong-doer ;  and  when  he  returned  at  the  end 
of  the  period  I  have  mentioned  he  would  be  guilty  of  larceny,  unless 
he  was  in  actual  possession  in  the  interval.  There  is  not,  however,  a 
particle  of  evidence  of  such  actual  possession,  and  therefore  I  hold  the 
conviction  right.  This  conclusion  is  in  strict  accordance  with  the 
authorities  previous  to  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315, 
referred  to  by  Mr.  MoUoy,  and  does  not,  I  think,  in  any  way  con- 
flict with  that  decision.  In  that  case  there  was  abundant  evidence 
that  the  whole  transaction  was  a  continuous  act,  or  in  other  words, 
that  the  wrong-doer  had  never  been  out  of  actual  possession  ;  and 
under  the  circumstances  the  fact,  upon  the  assumption  of  which  the 
case  was  stated,  that  the  poachers  had  no  intention  to  abandon  the 
wrongful  possession  of  the  rabbits  which  they  acquired,  but  placed 
them  in  the  ditch  as  a  place  of  deposit  till  they  could  conveniently 
remove  them,  was  decisive  in  the  prisoner's  favor.  I  consider,  how- 
ever, that  that  decision  has  no  application  to  the  present  case. 

Palles,  C.  B.  I  am  unable  to  concur  with  the  other  members  of  the 
court.  In  m}-  opinion  the  conviction  was  wrong,  and  ought  to  be 
quashed.  We  all  appear  to  agree  that  if  the  thing  taken  and  carried 
away  is  for  the  first  time  I'endered  capable  of  being  stolen  by  the  act 
of  taking,  and  if  the  taking  and  carrying  awa}'  constitute  one  continu- 
ous act,  such  taking  and  carrying  away  is  not  theft  at  common  law. 
We  also  appear  to  agree  that  the  rule  applies  as  well  to  the  grass  in 
question  here  as  to  the  rabbits  in  The  Queen  v.  To\Vnle3',  L.  R.  1  C.  C. 
R.  315,  and  that  the  reason  of  the  rule  is  not  that  the  thing  taken  was 
not  at  the  time  of  the  taking  the  property  of  the  prosecutor,  but  be- 
cause, at  the  moment  at  which  it  became  that  class  of  propert}'  which 
can  be  the  subject  of  larcen}'  —  i.  e.  a  personal  chattel  —  it  was  in 
the  possession,  not  of  the  true  owner,  but  of  the  trespasser.  On  the 
other  hand,  I  admit  that  although  the  possession  of  tlte  chattel  was  in 
the  trespasser  by  the  act  of  taking,  yet,  if  such  possession  ceased  in 
fact,  by  its  abandonment  by  the  trespasser,  the  possession  upon  such 
cesser  became  constructive!}-  that  of  the  true  -owner ;  and  that  if, 
during  the  continuance  of  such  constructive  possession,  the  trespasser 
again  took  possession,  animo  farandi,  such  last-mentioned  taking 
would  be  larceny. 

The  question,  then,  for  decision  is,  whether  on  the  facts  of  the  present 
case,  and  notwithstanding  the  finding  of  tiie  jury  on  the  question  left 
to  them,  we  can  say,  as  a  matter  of  law,  tliat  the  cutting  and  carrying 
away  did  not  constitute  one  continuous  act ;  or,  in  other  words,  that 
the  possession  of  the  prisoner  of  the  severed  grass  had  ceased  prior  to 
its  removal  on  the  13th  August.  As  to  what  constitutes  a  cesser  of 
possession,  it  seems  clear  that  it  cannot  be  said  that  it  necessaril}-  takes 
place  the  moment  the  trespasser  abandons  physical  control  over  the 
chattel.  In  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315,  the  rabbits 
were  lying  in  a  ditch  for  three  hours  during  the  absence  of  the  poachers, 


SECT.  II,-]  EEGINA   V.   FOLEY.  809 

and  were  consequent!}'  for  that  period  out  of  their  physical  power  and 
control ;  yet  it  was  held  that  the  question  of  the  cesser  or  abandon- 
ment of  the  trespasser's  possession  was  one  not  of  law,  but  of  fact ; 
and  that  a  verdict  negativing — as  the  jury  have  here  negatived  — 
intention  to  abandon  amounted  to  not  guilt}'.  The  decision  there, 
therefore,  involved  the  determination  that  during  the  entire  period 
whilst  the  rabbits  lay  in  the  ditcli,  the}-  were  in  law  in  the  possession, 
not  of  the  true  owner,  but  of  the  absent  poachers,  and  were  so  by 
reason  of  the  absence  in  the  minds  of  the  poachers  of  intention  to 
abandon. 

The  same  conclusion  was  arrived  at  in  Reg.  v.  Fetch,  14  Cox  C.  C. 
IIG,  in  which  the  period  during  which  the  dead  rabbits  were  hidden  in 
a  hole  in  the  earth  must  have  been  nearly  an  entire  da}',  viz.  from  half- 
past  eleven  on  one  morning  to  early  on  the  following  morning.  I  am 
not  quite  sure  that  I  understand  the  exact  meaning  which  Mr.  Justice 
Gibson  attaches  to  the  word  "effective"  when  he  conceives  it  to  be 
a  principle  of  the  common  law  that  when  the  wrong-doer's  actual  and 
effective  possession  ceases,  he  cannot  be  deemed  to  be  in  constructive 
possession.  If  by  "effective"  he  means  something  different  from 
"actual"  and  for  this  reason  distinguishes  the  present  case  from  The 
Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315,  and  The  Queen  v.  Fetch,  14 
Cox  C.  C.  116,  I  am  unable  to  follow  his  reasoning.  If  it  can  be  said, 
as  a  matter  of  law,  that  the  possession  of  the  severed  grass  by  the 
prisoner  in  the  present  case,  although  actual,  was  not  "  effective"  so, 
too,  should  have  been  held  the  possession  for  a  day  of  the  trapper  in 
The  Queen  v  Fetch,  14  Cox  C.  C.  116,  and  that  for  three  hours  of  the 
poachers  in  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315.  On  the 
other  hand,  if  by  "effective"  he  means  no  more  than  is  involved  in 
"  actual,"  then,  although  I  agree  in  his  view,  I  cannot  distinguish  the 
present  case  from  Townley's  case,  L.  R.  1  C.  C.  R.  315,  and  Fetch's 
case,  14  Cox  C.  C.  116.  On  that  supposition  it  would  not  be  sufficient 
that  the  facts  should  be  such  that  tlie  jury  might  have  found  that  the 
actual  possession  of  the  prisoner  had  ceased.  No  doubt  they  might, 
but  they  have  not  done  so.  They  have  found  the  contrary.  Fetch's 
case,  14  Cox  C.  C.  116  is  a  clear  authority  that  if  the  period  which 
elapsed  between  the  cutting  the  grass  and  its  ultimate  carrying  away 
did  not  amount  to  more  than  a  day,  the  prisoner,  in  the  present  case 
(having  regard  to  the  finding)  would  not  have  been  guilty.  But  if  the 
exact  length  of  the  interval  be  material,  we,  as  distinct  from  the  jurors, 
cannot  determine  the  exact  time,  measured  in  hours  or  in  days,  the 
existence  of  which  will  make  that  larceny,  which  would  not  have  been 
so  had  the  interval  been  something  less.  We  cannot  say  that  if  the 
interval  be  twenty-three  hours  it  may  not  be,  but  that  if  it  be  in- 
creased to  twenty-five  hours,  or  three  days,  it  necessarily  must  be 
larceny. 

The  question  involved  is,  as  decided  in  Townley's  case,  L.  R.  1  C. 
C.  R.  315,  one  of  intention.     Such  a  question  is  usually  exclusively  for 


810  EEGINA   V.   FOLEY.  [CHAP.  XII. 

a  jurv.     If  time  be,  as  admittedly  it  is,  material  in  determining  this 
intention,  the  only  periods  between  which  the  common  law  can  recog- 
nize a   distinction   are   between   those    which  are  and  wliich  are  not 
reasonable.      This  is  the  view  taken  by  Mr.  Justice  Stephen   in    his 
Digest  (4th  ed.  Art.  296).     "  It  seems,"  he  says,  "  tliat  the  taking  and 
cari-ying  away  are  to  be  deemed  to  be  continuous  if  the  intention  to 
carry  away  after  a  reasonable  time  exists  at  the  time  of  the  taking." 
If  this  be,  as  I  think  it  is,  the  true  rule,  the  jurors  alone  can,  in  a 
case  such  as  the  present,  determine  within  which  class  the  period  of 
time  in  question  here   must   range ;  and   the   question  of  reasonable 
time  not  having  been  left  to  the  jury  or  found,  considerations  arising 
from  the  length  of  the  interval  cannot,  as  it  seems  to  me,  be   relied 
upon.     If,  therefore,  the  conviction,  under  the  circumstances  proved, 
be  right,  so  must  it  have  been  had  the  interval  been  three  hours,  or 
one  day,  instead  of  three  days ;  and  unless  there  be  some  other  dis- 
tinction between  this  and  Townley's  case,  L.  R.  1  C.  C.  R.  315,  and 
Fetch's  case,  14  Cox  C.  C.   UG,  the  present  case  would  appear  to  be 
ruled  by  them.     Is  there,  then,  any  distinction?     I  tliink  not.    It  is 
said  that  here  there  is  an  absence   of  intention,  by  which  I  suppose 
is  meant  absence  of  affirmative  evidence  of  intention  in  the  prisoner 
to  remain  in  possession.     Even  were  this  so  it  would  not  justify  the 
judge  in  withdrawing  from  the  jury  the  prisoner's   intention  ;  for  the 
material  thing  is,  not  the  absence  of  intention   to  retain  possession, 
but  the  presence  of  affirmative  intention  to  abandon.     The  mere  act 
of  cutting  was  some  evidence  that  the  prisoner  cut  the  grass  for  him- 
self, and  intended  to  use  it.     He  told  the  police  constable  that  he  (the 
prisoner)  might  as  well  have  it  as  the    landlord.     This   declaration, 
thougli  made  on  the   11th,  is  some  evidence  of  his    intention    at   the 
time  of  the  original  cutting,  on  the  10th.     It  was  competent,  too,  to 
the  jury  to  have  regard  to  the  character  of  the  act  done,  and  to  find 
that  the  reason  the  prisoner  refrained  for  three  days  from  carrying  it 
away  was  that  it  might  become  dry,  and  that  he  might  carry  it  away  as 
hay. 

Mr.  Molloy,  as  I  understand,  contests  the  proposition  laid  down  by 
Mr.  Justice  Stephen,  to  which  I  have  already  referred,  and  for  that 
purpose  relies  mainly  upon  1  Hale  P.  C,  p.  510,  and  Lee  v.  Risdon,  7 
Taunt.  191.  In  the  first  it  is  said  :  "  If  a  man  come  to  steal  trees,  or 
the  lead  of  a  church  or  house,  and  sever  it,  and  after  about  an  hour's 
time  or  so  come  and  fetch  it  away,  this  hath  been  held  felony,  because 
the  act  is  not  continuated  but  interpolated,  and  so  it  was  agreed  by  the 
Court  of  King's  Bench,  9th  Car.  II.,  upon  an  indictment  for  stealing  the 
lead  of  Westminster  Abbey."  This  passage  may  mean  no  more  than 
that  such  an  act  is  capable  of  being  a  felony,  if  so  found  by  the  jury  ; 
and  that  the  jury  should  so  find,  if  they  were  of  opinion  that  the  act 
was  not  continuated  but  interpolated.  In  Lee  v.  Risdon,  7  Taunt.  191, 
the  distinction  drawn  by  Gibbs,  C.  J.,  is  as  to  that  of  which  felony  can, 
and  that  of  which  it  cannot,  be  committed.     "Felony,"  he  says,  "  can- 


SECT.  II.]  REGINA  V.   FOLEY.  '         811 

•not  be  committed  of  those  things  "  (i.  e.  things  attached  to  the  freehold), 
"  but  if  the  tliief  severs  the  propert}',  and  instantly  carries  it  off,  it  is 
no  felony  at  common  law.  If,  indeed,  he  lets  it  remain  after  it  is 
severed,  any  time,  then  the  removal  of  it  becomes  a  felony."  The  true 
meaning,  however,  of  these  passages  was  determined  by  The  Queen  v. 
Townley,  L.  R.  1  C.  C.  R.  315.  Martin,  B.,  explains  them  in  these 
words:  "Those  statements  may  be  perfectly  correct,  and  ought,  per- 
haps, to  be  followed,  in  cases  exactly  similar  in  their  facts,  where  there 
has  been  an  actual  abandonment  of  possession  of  the  things  taken  ; 
but  here  it  is  expressly  found  that  there  was  no  abandonment ;  and 
where  the  act  is  merely  interrupted,  I  think  it  is  more  reasonable  to 
hold  that  there  is  no  larceny."  This  judgment  is  valuable  as  showing 
two  things:  (1)  That  the  authorities  relied  upon  by  Mr.  Molloy  are 
applicable  only  where  an  actual  abandonment  of  the  thing  taken  has 
been  found  or  admitted ;  (2)  That  the  question  of  abandonment,  in 
fact,  depends  upon  intention  to  abandon.  There,  the  fact  admitted 
was  that  the  poachers  had  no  intention  to  abandon  ;  and  that  is  treated 
by  Martin,  B.,  as  an  express  finding  that  there  was  no  abandonment 
in  fact.  Bramwell,  B.,  also  treats  the  case  as  depending  upon  inten- 
tion. "  I  think  our  decision,"  he  says,  *'  is  consistent  with  the  pas- 
sage cited  from  Hale,  and  the  dictum  of  Gibbs,  C.  J.,  referred  to,  which 
appear  to  me  to  be  quite  correct.  If  a  man  were  unlawfully  to  dig 
his  neighbor's  potatoes,  and  from  being  disturbed  in  his  work,  or  any 
other  cause,  were  to  abandon  them  in  the  place  where  he  had  dug  them, 
and  were  afterwards,  with  a  fresh  intention,  to  come  back  and  take 
them  away,  I  think  the  case  would  be  the  same  as  if,  during  this  interval 
of  time,  the  potatoes  had  been  locked  in  a  cupboard  by  the  true  owner." 
Byles,  J.,  in  the  same  way  treats  the  fact  that  the  poachers  had  no 
intention  to  abandon  as  involving  that  their  possession  never  had  been 
abandoned  in  fact.  Blackburn,  J.,  saj's :  "There  is  the  fact  that  the 
rabbits,  after  being  killed,  were  left  hidden  in  a  ditch  upon  the  land  for 
nearly  three  hours.  I  should  myself  have  thought  that  that  made  no 
difference  in  the  case."  As  to  the  passages  cited  from  Lord  Hale,  and 
the  dictum  of  Cliief  Justice  Gibbs,  he  adds:  "If  we  are  to  under- 
stand those  passages  in  the  sense  put  upon  them  by  my  brother  Bram- 
well, as  applying  only  to  a  case  in  which  the  wrong-doer  has  abandoned 
and  lost  all  property  and  possession  in  the  things  in  question,  I  have  no 
quarrel  with  them,  and  they  do  not  apply  to  the  present  case.  But  if 
those  passages  mean  that  the  mere  cessation  of  physical  possession  is 
sufficient  to  make  the  subsequent  act  of  removal  larcen}',  then  they  do 
apply  to  the  present  case,  and  in  that  case,  great  as  is  my  respect  for 
Lord  Hale,  I  cannot  follow  him." 

The  clear  answer,  then,  to  the  argument  of  Mr.  Molloy,  appears  to 
me  to  be  that  if  the  passages  he  has  relied  upon  are  to  be  read  in  the 
sense  for  which  he  contends,  they  are  inconsistent  with,  and  have  been 
overruled  by  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315. 

Upon  the  whole,  I  am  of  opinion  that  the  decision  in  The   Queen 


812 


COMMONWEALTH   V.    STEIMLING. 


[chap.  XII. 


V.  Townley,  L.  R.  1  C.  C.  R.  315,  as  applied  to  the  present  case,  in- 
volves the  following  propositions  :  — 

1.  That  the  mere  leaving  by  the  prisoner  of  the  field  in  which  he  cut 
the  grass  was  not,  per  se,  and  irrespective  of  every  other  consideration, 
sufficient  to  make  his  subsequent  act  of  removal  larceny. 

2.  That  the  prisoner's  omission  for  three  days  to  take  away  the  hay 
was  evidence  from  which  a  jury  might,  if  they  thought  fit,  have  found  an 
abandonment  by  the  prisoner  of  that  possession  which  he  had  acquired 
by  the  unlawful  act  of  severance. 

3.  That  such  question  of  abandonment  involved  the  intention  of  the 
prisoner  and  his  object  in  leaving  the  grass  lying  upon  the  field  for 
three  days. 

4.  That  such  abandonment  was  essential  to  a  valid  conviction  ;  and 
that,  m  the  present  case,  in  which  instead  of  being  found  it  has  been 
negatived,  the  conviction  cannot  be  sustained.  See  Reg.  v.  Barry,  2 
Cox  C.  C.  294. 


^C^ 


COMMONWEALTH  v.   STEIMLING. 
Supreme  Court  of  Pennsylvania.     1893. 

[Reported  27  Atlantic  Reporter,  297.] 

Williams,  J.^  It  appeared  on  the  trial  that  Bower,  the  prosecutor, 
was  the  owner  of  a  farm  which  was  crossed  by  Mahanoy  Creek.  Some 
distance  up  the  stream  coal  mines  were  in  operation,  and  liad  been  for 
many  years.  The  culm  and  waste  from  the  mines  and  breaker,  which 
had  been  thrown  into,  or  piled  upon  the  bank  of,  the  creek,  had  been 
carried  down  the  stream  by  the  current  and  the  floods,  and  deposited 
in  the  channel  and  along  the  shores  in  considerable  quantities.  This 
material,  having  been  abandoned  by  its  original  owners,  belonged  to 
him  on  whose  land  the  water  left  it.  The  water,  dropi^ing  the  heavy 
pieces  first,  and  carrying  the  smaller  particles  and  dust  along  in  the 
current,  served  as  a  screen  ;  and,  as  the  result  of  this  process,  consid- 
erable quantities  of  coal  suitable  for  burning  were  lodged  along  the 
channel  and  the  banks  of  the  stream,  throughout  its  course  over  the 
prosecutor's  farm.  The  defendant,  descending  the  stream  with  a  flat- 
boat,  entered  upon  the  lands  of  Bower,  and  began  to  gather  coal  from 
the  surface.  He  was  provided  with  a  scoop  or  shovel  made  of  strong 
wire  or  iron  rods,  with  which  he  gathered  up  the  coal.  The  sand  and 
gravel  passed  through  the  meshes  of  the  scoop,  leaving  the  pieces  of 
coal  within  it.  When  the  gravel  was  all  sifted  out,  the  cleaned  coal 
was  emptied  upon  the  flatboat.  This  process  was  continued  until  a 
boat-load  was  obtained.  The  boat  was  then  towed  or  pushed  to  some 
bins  on  the  shore  opposite  to  Bower's  house,  and  the  coal  was  trans- 

^  Part  only  of  the  opiuion  is  given. 


SECT.  II.] 


COMMONWEALTH  V.    STEIMLING. 


813 


^N^ 


ferred  from  the  boat  to  the  bins.  This  was  repeated  until  from  eight 
to  twelve  tons  of  coal  had  been  gathered,  cleaned,-  deposited  on  the 
boat,  transported  to  the  bins,  and  unloaded.  This  coal  was  afterwards 
delivered  to  purchasers,  or  taken  for  consumption,  from  the  bins. 
Here  was  a  taking  with  intent  to  carry  away  and  convert,  a  carrying 
awa}',  and  an  actual  conversion,  which,  the  commonwealth  held,  sus- 
tained the  indictment  for  larceny.  The  learned  judge,  however, 
instructed  the  jur^-  that  the  process  of  collecting,  cleaning,  loading 
upon  the  flatboat,  transporting  to  the  bins,  and  unloading  the  coal  into 
them,  must  be  regarded  as  one  continuous  act,  like  the  act  of  him  who 
tears  a  piece  of  lead  from  a  building  and  carries  it  off,  or  who,  passing 
an  orchard,  plucks  fruit  and  takes  it  away,  and  that  the  defendant  was 
therefore  a  trespasser  only.  The  distinction  in  the  mind  of  the  learned 
judge  was  that  between  real  and  personal  estate.  The  coal  lying  upon 
the  surface  he  held  to  be  real  estate.  The  lifting  it  up  in  the  shovel 
was,  on  this  theory,  a  severance,  which  forcibly  changed  its  character, 
and  made  it  personal.  The  loading  into  the  flatboat,  the  transporta- 
tion to  the  bins,  and  unloading  of  the  boat,  all  of  which  acts  were 
done  within  the  lines  of  the  prosecutor's  land,  and  occupied  hours  of 
time  for  each  boat-load,  were  so  connected  with  the  severance  as  to 
make  but  a  single  act.  For  this  reason  he  held  tliat  the  defendant  was 
guilty  of  a.  trespass  onl3\  The  common  law  did  distinguish  between 
things  that  are  connected  with  or  savor  of  the  real  estate  and  those 
that  are  personal  goods.  An  apple  growing  upon  a  tree  was  con- 
nected with  the  land  by  means  of  the  tree  that  bore  it,  and  so  held  to 
partake  of  the  nature  of  the  land,  and  to  be  real  estate.  One  who 
plucked  it  from  the  tree,  and  at  once  ate  or  carried  it  away,  was  there- 
fore a  trespasser ;  but  if  he  laid  it  down,  and  afterwards  carried  it 
away,  so  that  the  taking  and  the  asportation  were  not  one  and  the 
same  act,  then,  if  the  carrying  away  was  done  animo  furandi,  the  ele- 
ments of  larceny  were  present.  Blackstone  tells  us,  in  volume  4,  p. 
233,  of  the  Commentaries,  that  larceny  cannot  be  committed  of  things 
that  savor  of  the  realty,  because  of  "  subtility  in  the  legal  notions  of 
our  ancestors."  He  then  explains  the  subtile  distinction  as  follows : 
"  These  things  [things  that  savor  of  the  realty]  were  parcel  of  the 
real  estate,  and  therefore,  while  they  continued  so,  could  not  by  any 
possibility  be  the  subject  of  theft,  being  absolutely  fixed  and  immov- 
able ;  and  if  they  were  severed  by  violence,  so  as  to  be  changed  into 
movables,  and  at  the  same  time,  by  one  and  the  same  continued  act, 
carried  off  by  the  person  who  severed  them,  they  could  never  be  said 
to  be  taken  from  their  proprietor  in  their  newly  acquired  state  of 
mobility."  But  he  explains  that  if  the  act  of  severance  and  that  of 
carrying  away  be  separated,  so  that  they  do  not  constitute  "  one  and 
the  same  continued  act,"  the  subtile  distinction  between  personal  goods 
and  those  that  savor  of  the  real  estate  ceases  to  protect  the  wrong-doer 
from  a  criminal  prosecution,  and  a  charge  of  larceny  can  be  sustained. 
The  question  whether  this  coal,  lying  loose  upon  the  surface,  like  other 


^ 


"^ 


814  COMMONWEALTH   V.   STEIMLING.  [CHAP.  XII. 

drift  of  the  stream,  was  real  or  personal  estate,  does  not  seem  to  have 
been  raised  in  the  court  below,  and  it  is  not  before  us.  The  real  ques- 
tion presented  is  whether  this  case,  upon  its  facts,  is  one  for  the  appli- 
cation of  the  common-law  rule.  Have  we  here  a  severance  and  an 
asportation  that  constitute ''one  and  the  same  continuous  act?"  If 
the  picking  of  the  coal  from  tlie  surface  be  treated  as  an  act  of  sever- 
ance, we  have  next  the  act  of  cleaning  and  sifting ;  then  the  deposit 
of  the  cleaned  coal  upon  the  flatboat,  little  by  little ;  then  the  trans- 
portation of  the  boat-load  to  the  bins  ;  then  the  process  of  shovelling 
the  coal  from  the  boat  into  the  bins.  The  acts,  occupying  consider- 
able time  for  each  boat-load,  were  all  done  within  the  inclosures  of  the 
prosecutor.  It  is  as  though  one  should  come  with  team  and  farm- 
wagon  into  his  neighbor's  corn-field,  and  pluck  the  ears,  load  tliem 
into  the  wagon,  and,  when  the  wagon  would  hold  no  more,  draw  the 
corn  away  to  his  own  corn-house,  and  then  return  again,  and  continue 
the  process  of  harvesting  in  the  same  manner  until  he  had  transferred 
his  neighbor's  crop  to  his  own  cribs.  If  such  acts  were  done  under  a 
bona  fide  claim  of  title  to  the  crop,  they  would  not  amount  to  larceny, 
but,  if  done  animo  furandi,  all  the  elements  of  larceny  would  be  pres- 
ent. In  the  case  before  us,  it  is  conceded  that  the  coal  belonged  to 
Bower,  and  was  in  his  possession  as  part  of  his  real  estate.  The 
defendant  entered  his  lands  for  the  purpose  of  collecting  coal,  and 
carrying  it  away.  He  makes  no  boym  fide  claim  of  title ;  no  offer  to 
purchase ;  sets  up  no  license ;  but  rests  on  the  proposition  that,  like 
the  man  who  plucks  an  apple  from  a  tree,  and  goes  his  way,  he  is 
liable  only  as  a  trespasser.  If  this  be  true,  he  could  gather  the  coal 
from  Bower's  land  as  often  as  the  stream  made  a  sufficient  deposit  to 
justify  the  expenditure  of  time  necessary  to  gatlier,  clean,  transport, 
and  put  it  in  bins.  Upon  the  same  principle,  he  might  gather  all  the 
crops  growing  on  Bower's  farm,  as  they  matured,  and,  by  hauling  each 
load  away  when  it  was  made  up,  defend  against  tlie  charge  of  larceny 
on  the  ground  that  the  gathering  from  the  tree,  the  stalk,  or  the  hill, 
the  loading  into  wagons,  and  the  carrying  of  the  loads  away,  though 
occupying  hours  for  each  load,  and  many  days  for  the  crop,  was  ''one 
and  the  same  continuous  act "  of  trespass.  We  cannot  agree  to  such  an 
extension  of  the  common-law  rule,  but  are  of  the  opinion  that  this  case 
should  have  gone  to  the  jury,  on  the  existence  of  the  animo  furandi. 


SECT.  II.]  KEGINA   V.   RILEY.  815 

REGINA   V.   RILEY. 
Crown  Case  Reserved.     1853. 

[Reported  6  Cox  C.  C.  88 ;  Dearsly,  C.  C.  149.] 
At  the  General  Quarter  Sessions  of  the  Peace  for  the  county  of 
Durham,  held  at  the  city  of  Durham,  before  Rowland  Burdon,  Esq., 
Chairman,  on  the  18th  day  of  October,  in  the  year  of  our  Lord  1852, 
the  prisoner  was  indicted  for  having,  on  the  5th  day  of  October,  1852, 
stolen  a  lamb,  the  property  of  John  Burnside.  The  prisoner  pleaded 
not  guilty.  On  the  trial  it  was  proved  that  on  Friday,  the  Ist  day  of 
October,  in  the  year  of  our  Lord  1852,  John  Burnside,  the  prosecutor, 
put  ten  white-faced  lambs  into  a  field  in  the  occupation  of  John  Clarke, 
situated  near  to  the  town  of  Darlington.  On  Monday,  the  4th  day  of 
October,  the  prisoner  went  with  a  flock  of  twenty-nine  black-faced 
lambs  to  John  Clarke,  and  asked  if  he  might  put  them  into  Clarke's 
field  for  a  night's  keep,  and  upon  Clarke's  agreeing  to  allow  him  to  do  so 
for  one  penny  per  head,  the  prisoner  put  his  twenty-nine  lambs  into 
the  same  field  with  the  prosecutor's  lambs.  At  half-past  seven  o'clock 
in  the  morning  of  Tuesday-,  the  5th  day  of  October,  the  prosecutor  went 
to  Clarke's  field,  and  in  counting  his  lambs  he  missed  one,  and  the  pris- 
oner's lambs  were  gone  from  the  field  also.  Between  eight  and  nine 
o'clock  in  the  morning  of  the  same  day,  the  prisoner  came  to  the  farm 
of  John  Calvert,  at  Middleton  St.  George,  six  miles  east  from  Darling- 
ton, and  asked  him  to  buy  twenty-nine  lambs.  Calvert  agreed  to  do 
so,  and  to  give  8s.  apiece  for  them.  Calvert  then  proceeded  to  count 
the  lambs  and  informed  the  prisoner  that  there  were  thirty  instead  of 
twenty-nine  in  the  flock,  and  pointed  out  to  him  a  white-faced  lamb ; 
upon  which  the  prisoner  said,  "  If  you  object  to  take  thirty,  I  will 
draw  one."  Calvert,  however,  bought  the  whole  and  paid  the  prisoner 
£12  for  them.  One  of  the  lambs  sold  to  Calvert  was  identified  by  the 
prosecutor  as  his  property  and  as  the  lamb  missed  by  him  from  Clarke's 
field.  It  was  a  half-bred,  white-faced  lamb,  marked  with  the  letter 
"T,"  and  similar  to  the  other  nine  of  the  prosecutor's  lambs.  The 
twent3'-nine  lambs  belonging  to  the  prisoner  were  black-faced  lambs. 
On  the  5th  of  October,  in  the  afternoon,  the  prisoner  stated  to  two  of  the 
witnesses  that  he  never  had  put  his  lambs  into  Clarke's  field,  and  had 
sold  them  on  the  previous  afternoon,  for  £11  12s.,  to  a  person  on  the 
Barnard  Castle  road,  which  road  leads  west  from  Darlington. 

There  was  evidence  in  the  case  to  show  that  the  prisoner  must  have 
taken  the  lambs  from  Clarke's  field  early  in  the  morning,  which  was 
thick  and  rainy. 

It  was  argued  by  the  counsel  for  the  prisoner,  in  his  address  to  the 
jury,  that  the  facts  showed  that  the  original  taking  from  Clarke's  field 
was  by  mistake ;  and  if  the  jury  were  of  that  opinion,  then,  as  the 
original  taking  was  not  done  animo  furandi,  the  subsequent  appro- 
priation   would   not   make   it  a  larceny,  and  the   prisoner  must  be 


816 


REGINA   V.    RILEY.  [CHAP.  XIi;. 


acquitted.  The  chairman,  in  summing  up,  told  the  jury  that  though 
thev  might  be  of  opinion  that  the  prisoner  did  not  know  that  the  lamb 
was  in  his  flock  until  it  was  pointed  out  to  him  by  Calvert,  he  should 
rule  that  in  point  of  law  the  taking  occurred  wlien  it  was  so  pointed 
out  to  the  prisoner  and  sold  by  him  to  Calvert,  and  not  at  the  time  of 
leaving  the  field.  The  jury  returned  the  following  verdict :  "  The  jury 
say  that  at  the  time  of  leaving  the  field  the  prisoner  did  not  know  that 
the  lamb  was  in  his  flock,  and  that  he  was  guilty  of  felony  at  the  time 
it  was  pointed  out  to  him." 

The  prisoner  was  then  sentenced  to  six  months'  hard  labor  in  the 
bouse  of  correction  at  Durham :  and  being  unable  to  find  bail,  was 
thereupon  committed  to  prison  until  the  opinion  of  this  court  could  be 
taken  upon  the  question  whether  Charles  Riley  was  properly  convicted 
of  larcen}'.^ 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  conviction  is  right. 
The  case  is  distinguishable  from  those  cited.  R.  v.  Thristle  decides 
only  that  if  a  man  once  gets  into  rightful  possession,  he  cannot  by  a 
subsequent  fraudulent  appropriation  convert  it  into  a  felony.  So  in 
R.  V.  Thurborn,  in  the  elaborate  judgment  delivered  by  my  brother 
Parke  on  behalf  of  the  court,  of  which  I  was  a  member,  the  same  rule 
is  laid  down.  It  is  there  said  that  the  mere  taking  up  of  a  lost 
chattel  to  look  at  it  would  not  be  a  taking  possession  of  it ;  and  no 
doubt  that  may  be  done  without  violating  any  social  duty.  A  man 
may  take  up  a  lost  chattel  and  carry  it  home,  with  the  proper  object  of 
endeavoring  to  find  the  owner ;  and  then  afterwards,  if  he  yields  to 
the  temptation  of  appropriating  it  to  his  own  use,  he  is  not  guilty  of 
felony.  In  Leigh's  case,  also,  the  original  taking  was  rightful,  but 
here  the  original  taldng  was  wrongful.  I  am  not  desirous  of  calling  in 
aid  the  technicality  of  a  continuing  trespass  ;  and  I  think  this  case 
may  be  decided  upon  the  ground  either  that  there  was  no  taking  at  all 
by  the  prisoner  in  the  first  instance  or  a  wrongful  taking,  and  in  either 
case,  as  soon  as  he  appropriates  the  property,  the  evidence  of  felony  is 
complete. 

Parke,  B.  I  think  that  this  case  may  be  disposed  of  on  a  short 
ground.  The  original  taking  was  not  lawful,  but  a  trespass,  upon 
which  an  action  in  that  form  might  have  been  founded  ;  but  it  was  not 
felony,  because  there  was  no  intention  to  appropriate.  There  was, 
however,  a  continuing  trespass  up  to  the  time  of  appropriation,  and  at 
that  time,  therefore,  the  felony  was  committed.  Where  goods  are 
carried  from  one  county  to  another  they  may  be  laid  as  taken  in  the 
second  county,  and  the  diflference  between  this  and  Leigh's  case,  as 
well  as  the  others  cited,  is  that  the  original  taking  was  no  trespass. 
It  was  by  the  implied  license  of  the  owner,  and  the  same  thing  as  if  he 
had  been  entrusted  by  the  prosecutor  with  the  possession  of  the  goods. 
Williams,  Talfourd,  and  Crompton,  JJ.,  concurred. 

Conviction  affirmed. 
^  Argument  of  coansei  is  omitted. 


SECT.  II.]   ,,  STATE  V.  COOMBS.  817 

STATE  V.   COOMBS. 
Supreme  Judicial  Court  of  Maine.     1868. 

[Reported  55  Maine,  All.} 

DiCKERSON,  J.^  Exceptions.  The  prisoner  was  indicted  for  the 
larcen}'  of  a  horse,  sleigh,  and  buffalo  robes.  The  jury  were  instructed 
that,  if  the  prisoner  obtained  possession  of  the  team  by  falseh'  and 
fraudulently  pretending  that  he  wanted  it  to  drive  to  a  certain  plaoe, 
and  to  be  gone  a  specified  time,  when  in  fact  he  did  not  intend  to  go 
to  such  place,  but  to  a  more  distant  one,  and  to  be  absent  a  longer 
time,  without  intending  at  the  time  to  steal  the  property,  the  team  was 
not  lawfully  in  his  possession,  and  that  a  subsequent  conversion  of  it 
to  his  own  use,  with  a  felonious  intent  while  thus  using  it,  would  be 
larcen}-. 

It  is  well  settled  that  where  one  comes  lawfully  into  possession  of 
the  goods  of  another,  with  his  consent,  a  subsequent  felonious  conver- 
sion of  them  to  his  own  use,  without  the  owner's  consent,  does  not 
constitute  larceny,  because  the  felonious  intent  is  wanting  at  the  time 
of  the  taking. 

But  how  is  it  when  the  taking  is  fraudulent  or  tortious,  and  the 
propert}'  is  subsequently  converted  to  the  use  of  the  taker  with  a 
felonious  intent?  Suppose  one  takes  his  neighbor's  horse  from  the 
stable,  without  consent,  to  ride  him  to  a  neighboring  town,  witli  the 
intention  to  return  him,  but  subsequently  sells  him  and  converts 
the  mone}-  to  his  own  use,  without  his  neighbor's  consent,  is  he  a  mere 
trespasser,  or  is  he  guilty  of  larcen}'?  In  other  words,  must  the 
felonious  intent  exist  at  the  time  of  the  original  taking,  when  that  is 
fraudulent  or  tortious,   to  constitute  larceny? 

When  property  is  thus  obtained,  the  taking  or  trespass  is  continu- 
ous. The  wrong-doer  holds  it  all  the  while  without  right,  and  against 
the  right  and  without  the  consent  of  the  owner.  If  at  this  point  no 
other  element  is  added,  there  is  no  larceny.  But  if  to  such  taking 
there  be  subsequently  superadded  a  felonious  intent,  that  is,  an  intent 
to  deprive  the  owner  of  his  property  permanently  without  color  of 
right,  or  excuse,  and  to  make  it  the  property  of  the  taker  without  the 
owner's  consent,  the  crime  of  larceny  is  complete.  "  A  felonious 
intent,"  observes  Baron  Parke,  in  Regina  v.  HoUoway,  2  C.  &  K.,  942, 
"means  to  deprive  the  owner,  not  temporarily,  but  permanently  of 
his  own  property,  without  color  of  right  or  excuse  for  the  act,  and  to 
convert  it  to  the  taker's  use  without  the  consent  of  the  owner." 

The  case  of  Regina  v.  Steer,  2  C.  &  K.,  988,  is  in  harmony  with 
this  doctrine.  The  prosecutor  let  the  prisoner  have  his  horse  to  sell  for 
him  ;  he  did  not  sell  it,  but  put  it  at  a  liver}-  stable.  The  prosecutor 
directed  the  keeper  of  the  stable  not  to  give  up  the  horse  to  the  prisoner, 

1  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 
52 


818  STATE  V.   COOMBS.  [CHAP.  XII. 

and  told  the  prisoner  lie  must  not  have  the  horse  again ;  to  which  the 
prisoner  replied,  "  Well."  The  prisoner  got  possession  of  the  horse 
bv  telling  a  false  story  to  the  servant  of  the  keeper  of  the  stable,  and 
made  off  with  him.  The  case  was  reserved,  and  the  court  held  the 
prisoner  guilty  of  larcenj'.     Commonwealth  v.  White,  11  Cush.  483. 

In  the  case  at  bar,  the  prisoner  obtained  possession  of  the  property 
by  fraud.  This  negatives  the  idea  of  a  contract,  or  that  the  possession 
of  the  prisoner  was  a  lawful  one  when  he  sold  the  horse.  He  was  not 
the  bailee  of  the  owner,  but  was  a  wrong-doer  from  the  beginning ;  and 
the  owner  had  a  right  to  reclaim  his  property  at  any  time.  It  has  been 
decided  that  when  a  person  hires  a  horse  to  go  to  a  certain  place,  and 
o-oes  beyond  that  place,  the  subsequent  act  is  tortious  and  that  trover 
may  be  maintained,  on  the  ground  of  a  wrongful  taking  and  con- 
version.    Morton  v.  Gloster,  46  Maine,  520. 

In  contemplation  of  law,  the  wrongful  act  was  continuous,  and 
when  to  that  act  the  prisoner  subsequently  added  the  felonious  intent, 
that  is,  the  purpose  to  deprive  the  owner  of  his  property  permanently, 
without  color  of  right  or  excuse,  and  to  convert  it  to  his  own  use  with- 
out the  consent  of  the  owner,  the  larceny  became  complete  from  that 
moment.  The  color  of  consent  to  the  possession  obtained  by  fraud, 
does  not  change  the  character  of  the  offence  from  larceny  to  trespass 
or  other  wrongful  act.  In  such  case  it  is  not  necessary  that  the  feloni- 
ous intent  should  exist  at  the  time  of  the  oiiginal  taking  to  constitute 
larceny,  the  wrongful  taking  being  all  the  while  continuous. 

It  is  to  be  observed  that  this  principle  does  not  apply  in  cases  where 
the  owner  parted  with  his  property,  and  not  the  possession  merely,  as 
in  the  case  of  a  sale  procured  Ijy  fraud  or  false  pretences.  In  such 
instances  there  is  no  larceny,  however  gross  the  fraud  by  which  the 
property  was  obtained.  Mawrey  v.  W^alsh,  8  Cowen,  238;  Ross  v. 
The  People,  5  Hill,  294.  *'  It  is  difflcult  to  distinguish  such  a  case 
from  larceny,"  remarks, M'"-  Justice  Cowen,  in  Ross  v.  The  People; 
^'  and  were  the  question  res  nova  in  tliis  court,  I,  for  one,  would  follow 
the  decision  in  Rex  v.  Campbell,  1  Mood.  Cr.  Cases,  179.  The  deci- 
sions, however,  are  the  other  way,  even  in  England,  with  the  single 
exception  of  that  case,  and  they  have  long  been  followed  here.  There 
is  nothing  so  palpably  absurd  in  this  as  to  warrant  our  overruling 
them." 

We  are  unable  to  discover  any  error  in  the  instructions  of  the 
presiding  judge.  Exceptions  overruled. 

JudgmoU  for  the  State. 

Kent,  Waltox,  Barrows,  Danfortii  and  Taplev,  JJ.,  concurred.^ 

i  Ace.  Weaver  v.  State,  77  Ala.  26;  Com.  v.  White,  U  Cush.  483.  —Ed. 


SECT.  II.]  ANONYMOUS.  S19 


WARD  V.   PEOPLE. 
Supreme  Court  of  New  York.     1842. 

[Reported  3  Hill,  395.] 

Error  to  the  Oneida  general  sessions,  where  Ward  was  convicted  of 
petit  larceny,  second  offence.  The  indictment  charged  the  prisoner 
with  having  stolen  twenty-five  pounds  of  butter,  the  property  of  one 
John  Flagg.  On  the  trial  Flagg  testified  that  he  bought  the  butter  in 
question  o1'  the  captain  of  a  canal  boat.  The  prisoner's  counsel  pro- 
posed to  ask  the  witness  if  he,  or  if  he  and  the  canal  boat  captain 
together,  did  not  steal  the  butter.  This  question  was  objected  to, 
and  the  objection  sustained,  whereupon  the  prisoner's  counsel  ex- 
cepted.i  jt  appeared  in  the  course  of  the  trial  that  the  butter  stolen 
from  Flagg  had  been  previously  stolen  from  firkins  on  a  canal  boat,  and 
the  evidence  tended  strongly  to  connect  Flagg  with  the  larceny. 
W.  M  Allen,  for  the  plaintiff  in  error. 
W.  C.  Noyes,  for  the  people. 

By  the  Court,  Nelson,  C.  J.  The  question  put  to  Flagg  was  pro- 
perly overruled.  If  the  question  had  been  answered  in  the  affirmative, 
the  fact  would  have  been  immaterial,  because  possession  of  property 
in  the  thief  is  sufficient  to  make  it  the  subject  of  larceny  ;  and  the  title 
may  be  laid  either  in  the  owner  or  the  thief.  Thus  if  A.  steal  goods 
from  B.,  and  C.  afterwards  steal  the  same  goods  from  A.,  C.  is  a  felon 
both  as  to  A.  and  B.  2  East's  Cr.  L.  654 ;  2  Russ.  156  ;  1  Hale's 
P.  C.  507.^ 


ANONYMOUS. 
King's  Bench.     1406. 

[Reported  Year  Book  7  Hen.  IV.,  43,  pi  9.] 

A  MAN  was  appealed  of  larceny  in  Middlesex,  while  the  felony  was 
done  in  London.  And  the  court  was  informed  that  the  appellee  after 
the  felony  done  had  carried  the  goods  into  the  county  of  Middlesex. 
And  the  court  said  that  for  that  reason  the  appeal  was  well  taken,  for 
when  a  man  robs  another  of  his  goods,  and  carries  them  into  divers 
counties,  he  commits  the  robbery  in  each  county,  and  the  appeal  is 
maintainable  in  whatever  county  the  plaintiff  will.  And  note  that  the 
felon  with  the  mainor  was  taken  in  London,  and  the  body  and  the 
mainor  were  made  come  before  the  king. 

1  Only  so  much  of  the  case  as  relates  to  this  exception  is  given. 

2  Affirmed  6  Hill,  144,  Foster,  Sen.,  dissenting  on  this  point.  See  ace.  Regina  v. 
Wade,  1  C.  &  K.  739  ;  Com.  v.  Finn,  108  Mass.  466.  —  Ed. 


820 


ANONYMOUS.  '  ,  [CHAP.  XII. 


ANONYMOUS. 

Exchequer  Chamber.     1489. 
[Reported  Year  Book  4  Hen.  VII.,  5,  pi.  1.] 

One  was  arraigned  upon  an  indictment,  for  that  he  had  stolen  cer- 
tain goods,  etc.,  in  the  county  of  Surrey.  And  the  defendant  said 
that  he  was  indicted  for  taking  .the  same  goods  on  the  same  day  in  the 
county  of  Middlesex,,  and  was  acquitted,  which  was  the  same  felony. 
And  prayed  judgment,  if  for  that,  etc. 

Fisher.  It  is  no  plea,  because  it  shall  be  taken  most  beneficially 
for  the  king,  and  they  may  have  been  stolen  twice  well  enough. 

Frowike,  to  the  contrary.  For  where  goods  are  stolen  in  one  count}', 
and  carried  into  another  county,  he  may  be  indicted  in  each  county, 
and  shall  have  judgment  of  life ;  and  therefore  it  is  reason  that  if  he 
should  be  acquitted  in  one  county,  he  should  be  acquitted  in  the  other 
county.  And  if  one  should  be  beaten  in  one  county,  and  after  die  in 
another  county,  and  indictment  in  both  counties,  it  is  reason  tliat  if  he 
should  be  acquitted  in  one  county  that  should  help  him  in  the  other 
county,  etc. 

HussEY,   C.  J.     It  seems  no  plea.     And  as  I  understand,  trespass 
for  battery  committed  in  one  county  cannot  be  found  in  another  county 
on  pain  of  attaint ;  and  the  same  law  of  goods  taken  and  carried  out 
of  the  county  where  they  were  taken,  it  can  be  found  only  in  the  county 
where  the  taking  occurred,  and  that  on   pain   of   attaint.      But   the 
law  is  otherwise  in  appeal ;  for  there  he  may  bring  an  appeal  in  each 
county  where  the  goods  are  carried.     And  this  has  been  a  diversity, 
for  the  appeal  is  to  recover  his  goods,  and  affirms  property  continually 
in  the  party,  etc.,  but  it  is  otherwise  of  trespass  ;  for  it  is  not  to  recover 
the  goods,  but  damages  for  the  goods,  etc.     And,  sir,  I  take  it,  if  one 
steals  my  goods,  and"  another  steals  the  goods  from  him,  I  shall  have 
an  appeal  against  the   second  felon ;  but  it  is  otherwise  of  trespass. 
And  notwithstanding  the  appeal  lies  in  each  county  where  the  goods 
are  carried,  still  he  cannot  be  indicted  except  where  the  taking  was 
made,  for  the  indictment  is  not  to  have  the  goods,  etc. ;  and  that  has 
been  the  diversity  between  indictment  and  appeal.     And  so  here,  not- 
withstanding he  submits  that  it   is  the    same  felony,  that  cannot  be 
tried ;  for  if  it  should  be  tried,  it  ought  to  be  tried  by  both  counties, 
and  here  neither  of  them  can  give  evidence  to  the  other,  for  the  takings 
are  so  several  that  one  cannot  give  evidence  nor  notice  to  the  other ; 
and  therefore,  notwithstanding  mischief  shall  happen  to  the  party,  such 
mischief  shall  be  ])orne  ;  for  in  one  county,  etc.,  without  cause ;  and 
yet  he  ought  to  answer. 

Fairfax,  J.,  agreed  to  the  diversity  between  appeal,  indictment,  and 
trespass,  etc.,  and  said  that  the  allegation  that  it  is  the  same  felony 
could  not  be  tried  by  both  counties  when  he  is  acquitted  in  one  county, 


SECT.  IL]  .       KEX    V.   POWERS.  821 

and  those  of  that  county  cannot  give  evidence  of  any  felony  in  that 

county. 

And  then  Mordant  pleaded  the  plea,  and  prayed  that  it  be  allowed ; 
and  as  to  the  felony,  not  guilty. 

And  the  Chief  Justice  said  that  he  should  have  the  plea,  because  it 
Is  matter  in  law,  and  the  other  matter  in  fact.  Et  tola  Curia  contra 
euni. 

And  it  was  held  by  all  the  justices  and  barons  that  in  a  writ  of 
trespass  in  Middlesex  it  is  no  plea  to  say  that  he  has  recovered  for  a 
trespass  committed  in  the  county  of  Surrey,  because  it  could  not  be 
understood  as  the  same  trespass  ;  but  some  at  the  bar  held  that  it  is 
ditferent  in  felony,  because  it  is  felony  in  every  county  where  the  goods 
are,  or  come,  etc. 

Frowike  said :  For  the  same  reason  that  they  may  find  him  guilty  in 
appeal  for  a  felony  in  another  county,  for  the  same  reason  they  shall 
acquit  of  felony  conceived  in  another  county.  R  See  T.  25  E.  3  f.  44. 
A.  8  H.  5.^ 


REX  V.  POWERS. 

Crown  Case  Reserved.     1832. 
[Reported  1  Moody  C.  C.  349.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Selwyn,  K.  C,  at 
the  spring  Assizes  for  the  County  of  Dorset  in  the  year  1832,  and 
ordered  to  be  transported  for  seven  years ;  but  the  execution  of  the 
sentence  was  respited  in  order  that  the  opinion  of  the  judges  might 
be  taken  on  the  case. 

The  indictment  charged  the  prisoner  with  stealing  at  Dorchester,  in 
the  county  of  Dorset,  a  quantity  of  wearing  apparel,  the  property  of 
Thomas  Cundy.  The  things  had  been  taken  by  the  prisoner  from  a 
box  of  the  prosecutor's  at  St.  Helier's  in  the  island  of  Jersey,  while 
the  prosecutor  was  absent  at  his  work  at  a  short  distance,  and  without 
his  leave ;  they  were  shortly  afterwards  found  in  the  possession  of  the 
prisoner  at  Weymouth,  in  the  county  of  Dorset,  where  he  had  been 
apprehended  on  another  charge. 

A  doubt  occurred  whether  the  original  taking  was  such  whereof  the 
common  law  could  take  cognizance ;  and  if  not  whether  the  case  fell 
within  the  statute  7  &  8  G.  IV.  c  29,  s.  76  ;  or  in  other  words  whether 
the  island  of  Jersey  could  [be]  considered  as  part  of  the  United  King- 
dom. 2  Russell,  175.  If  the  original  taking  be  such  whereof  the 
common  law  cannot  take  cognizance,  as  if  the  goods  be  stolen  at  sea, 
the  thief  cannot  be  indicted  in  any  county  into  which  he  may  carry 
them.     3  Inst.  113  ;  1  Haw.  P.  C.  33,  s.  92.     A  similar  exception  pre- 

1  See  22  Lib.  Ass.  pi.  32.  —  Ed. 


822  COMMONWEALTH   V.   HOLDER.  [CHAP.  XIL 

vailed  formerly  where  the  original  taking  was  in  Scotland  or  Ireland; 
and  it  appears  to  have  been  holden  that  a  thief  who  had  stolen  goods 
in  Scotland  could  not  be  indicted  in  the  county  of  Cumberland,  where 
he  was  taken  with  the  goods.  Rex  v.  Anderson  and  others,  Carlisle 
summer  Assizes,  1763;  and  before  the  judges,  November,  1763;  2 
East,  772,  c.  16,  s.  156. 

This  case  was  considered  at  a  meeting  of  all  the  judges  (except  Lord 
Lyndhurst,  C.  B.,  and  Taunton,  J.)  in  Easter  Term,  1832;  and  they 
held  unanimously  that  the  conviction  was  wrong  and  that  the  case  was 
not  within  7  &  8  G.  IV.  c.  29,  s.  76.i 


PEOPLE  V.   GARDNER. 
Supreme  Court  of  New  York.     1807. 

[Reported  2  Johnson,  477.] 

The  prisoner  was  indicted  and  convicted  of  felony  at  the  sessions  in 
Washington  County,  for  stealing  a  horse.  On  the  trial  it  appeared 
that  the  original  taking  of  the  horse  was  in  the  State  of  Vermont,  but 
that  the  prisoner  was  apprehended  in  Washington  County,  with  the 
horse  in  his  possession.  The  question  was  submitted  to  the  court, 
whether  the  prisoner  could  be  tried  and  punished  in  this  state  for  the 
felony. 

Per  Cimam.  We  are  of  opinion  that  the  prisoner  cannot  be  tried 
for  this  offence  in  this  state.  When  the  original  taking  is  out  of  the 
jurisdiction  of  this  state,  the  offence  does  not  continue  and  accompany 
the  possession  of  the  thing  stolen,  as  it  does  in  the  case  where  a  thing 
is  stolen  in  one  county,  and  the  thief  is  found  with  the  property  in 
another  county.  2  East's  Pleas  of  the  Crown,  774.  The  prisoner  can 
be  considered  only  as  a  fugitive  from  justice,  from  the  State  of 
Vermont. 


COMMONWEALTH  v.   HOLDER. 
Supreme  Judicial  Court  of  Massachusetts.     1857. 

[Reported  9  G)-ni/,  7.] 

Indictment  for  stealing  at  Milford  in  this  county  goods  of  Henry  W. 
Dana.  At  the  trial  in  the  Court  of  Common  Pleas  there  was  evidence 
that   the  defendant  broke    and    entered    the    shop   of  said   Dana   at 

1  Ace.  Case  of  the  Admiralty,  13  Coke,  51  ;  Rex  v.  Anderson,  2  East  P.  0.  772; 
Reg.  V.  Debruiel,  11  Cox  C.  C.  207;  Reg.  v.  Carr,  15  Cox  C  C.  131  n.  — Ed. 


SECT.  II.]  COMMONWEALTH    V.    HOLDER.  823 

Smithfielcl  in  the  State  of  Rhode  IsLand,  and  stole  the  goods  mentioned 
in  tlie  indictment,  and  brought  them  into  this  county.  The  defendant 
aslced  that  the  jury  might  be  instructed  that  tlie  indictment  could  not 
be  maintained,  because  the  courts  of  this  state  could  not  take  cogni- 
zance of  a  larceny  committed  in  another  state.  But  Mellen,  C.  J., 
refused  so  to  instruct  the  jury,  and  instructed  them  that  the  evidence, 
if  believed,  was  sufficient  to  support  the  indictment.  The  defendant 
being  convicted  alleged  exceptions. 

G.  F.   Verry,  for  the  defendant. 

J.  H.  Clifford  (Attorney  General),  for  the  Commonwealth. 

Shaw,  C.  J.  A  majority  of  the  court  are  of  opinion  that  this  case 
must  be  considered  as  settled  by  the  case  of  Commonwealth  v.  Up- 
richard,  3  Gray,  434,  and  the  principles  stated  and  the  precedents 
cited.  Though  to  some  extent  these  colonies  before  the  Revolution 
were  distinct  governments  and  might  have  different  laws,  it  was  not 
unreasonable,  as  they  all  derived  their  criminal  jurisprudence  from  the 
English  common  law,  to  regard  the  rule  applicable  to  a  theft  in  an 
English  county  of  goods  carried  by  the  thief  into  another  as  analogous, 
and  adopt  it.  We  are  of  opinion  that  Massachusetts  did  adopt  it,  and 
this  is  established  by  judicial  precedent,  before  and  since  the  Revolu- 
tion, and  is  now  settled  by  authority  as  the  law  of  this  state. 

Thomas,  J.  The  real  question  in  this  case  is,  whether  the  defendant 
can  be  indicted,  convicted,  and  punished  in  this  Commonwealth  for  a 
larceny  committed  in  the  State  of  Rhode  Island.  If  it  were  a  new 
question,  it  would  be  enough  to  stale  it.  The  obvious,  the  conclusive 
answer  to  the  indictment  would  be  that  the  offence  was  committed 
within  the  jurisdiction  of  another,  and,  so  far  as  this  matter  is  con- 
cerned, independent  state,  of  whose  law  only  it  was  a  violation,  and 
of  which  its  courts  have  exclusive  cognizance.  By  the  law  of  that 
state  the  offence  is  defined  and  its  punishment  measured  ;  by  the  law 
which  the  defendant  has  violated  he  is  to  be  tried.  Whether  the  acts 
done  by  him  constitute  larceny,  and,  if  so,  of  what  degree,  must  be 
determined  by  that  law.  Its  penalties  only  he  has  incurred  ;  its  means 
of  protection  and  deliverance  he  may  justly  invoke,  and  especially  a 
trial  by  a  jury  of  his  peers  in  the  vicinage  where  the  offence  was 
committed. 

This  obvious  view  of  the  question  will  be  found  upon  reflection,  I 
think,  to  be  the  only  one  consistent  with  the  reasonable  security  of  the 
subject  or  the  well-defined  relations  of  the  states.  It  is  well  known 
that  the  laws  of  the  states  upon  the  subject  of  larceny  materially  differ. 
In  most  of  them  the  common  law  of  larceny  has  been  greatly  modified 
by  statutes.  The  jurisprudence  of  all  is  not  even  based  on  the  common 
law ;  in  several  the  civil  law  obtains. 

In  cases  where  a  difl'erence  of  law  exists,  by  which  law  is  the  defend- 
ant to  be  judged,  — the  law  where  the  offence  (if  any)  was  committed, 
or  where  it  i^s  tried?  For  example,  the  defendant  is  charged  with 
taking  with  felonious  intent  that  which  is  parcel  of  the  realty,  as  the 


824  COMMONWEALTH   V.   HOLDER.  [CHAP.  XIL 

gearing  of  a  mill  or  fruit  from  a  tree.  B}^  tlie  St.  of  1851,  c.  151,  the 
act  is  larceny  in  this  Commonwealth.  If  it  appears  that  in  the  state 
where  the  act  was  done  it  was,  as  under  the  common  law,  but  a  tres- 
pass, which  law  has  the  defendant  violated  and  by  which  is  he  to  be 
tried  ?  Or  suppose  the  defendant  to  be  charged  with  the  stealing  of 
a  slave,  —  a  felony  in  the  state  where  the  act  is  done,  but  an  offence 
not  known  to  our  laws.  The  difficulty  in  both  cases  is  the  same.  You 
have  not  only  conflicting  jurisdictions,  but  different  rules  of  conduct 
and  of  judgment.  . 

But  supposing  the  definitions  of  the  offence  to  be  the  same  in  the 
two  states,  the  punishments  may  be  ver}'  different.  Where  such  differ- 
ence exists,  which  penalty  has  the  defendant  justly  incurred,  and  which 
is  he  to  suffer?  For  example,  the  offence  is  punishable  by  imprison- 
ment in  Rhode  Island,  say  for  a  year ;  in  this  state  the  same  offence  is 
punishable  by  imprisonment  from  one  to  five  j-ears ;  is  the  defendant 
liable  to  the  heavier  punishment?  Or  suppose  he  has  been  convicted 
in  Rhode  Island,  and  in  consideration  of  his  having  indemnified  the 
owner  for  the  full  value  of  the  goods  taken,  his  punishment  has  been 
more  mercifully  measured  to  him,  can  he,  after  he  has  suffered  the 
punishment,  and  because  the  goods  were,  after  the  larcen}-,  brought 
into  this  state,  be  made  to  suffer  the  penalty  of  our  law  for  the  same 
offence?  Or  suppose  him  to  have  been  convicted  in  Rhode  Island  and 
a  full  pardon  extended  to  him,  can  he  be  tried  and  convicted  and  pun- 
ished here? 

Again :  the  power  to  indict,  convict,  and  punish  the  offence  in  this 
state  proceeds  upon  the  ground  that  the  original  caption  was  felonious. 
If  the  original  taking  was  innocent  or  but  a  trespass,  the  bringing  into 
this  state  would  not  constitute  a  larceny.  You  must,  therefore,  look  at 
the  law  of  the  state  where  the  first  caption  was  made.  And  how  is  the 
law  of  another  state  to  be  ascertained?  What  is  the  law  of  another 
state  is  a  question  of  fact  for  the  jury.  The  jury  in  this  way  are  in  a 
criminal  case  made  not  only  to  pass  upon  the  law,  but  to  pass  upon  it 
as  a  matter  of  evidence,  subject,  strictly  speaking,  neither  to  the 
direction  nor  the  revision  of  the  court. 

Again :  the  defendant  is  indicted  here  for  the  larceny  committed  in 
Rhode  Island  ;  while  in  custody  here  awaiting  his  trial,  he  is  demanded 
of  the  Executive  of  this  state  by  the  Executive  of  Rhode  Island  as 
a  fugitive  from  the  justice  of  that  state,  under  the  provisions  of  the 
Constitution  of  the  United  States,  art.  4,  §  2,  and  the  U.  S.  St.  of 
1793,  c.  45.  Is  he  to  be  tried  here,  or  surrendered  up  to  the  state 
where  the  offence  was  committed,  and  tried  there?  Or  if  he  has  been 
already  tried  and  convicted  and  punished  in  this  state,  is  he  to  be  sent 
back  to  Rhode  Island  to  be  tried  and  punished  again  for  the  same 
offence?  And  would  his  conviction  and  punishment  here  be  any 
answer  to  the  indictment  there?  Or  if  he  has  been  full}'  tried  and 
acquitted  here,  and  then  demanded  by  the  Executive  of  Rhode  Island, 
is  he,  upon  requisition,  to  be  sent  to  that  state  to  be  again  tried,  to 


SECT.  II.]  COMMONWEALTH   V.    HOLDEE.  825 

be  twice  put  in  jeopardy  for  the  same  offence?     It  is  quite  plain  no 
f^round  in  law  would  exist  for  a  refusal  to  surrender. 

The  defendant  was  indicted  for  larceny,  not  for  the  offence  of  bring- 
ing stolen  goods  into  the  Commonwealth.  He  was,  under  the  instruc- 
tion of  the  presiding  judge,  tried  for  the  larceny  in  Rhode  Island,  was 
convicted  for  the  larceny  in  Rhode  Island,  and  must  be  punished,  if 
at  all,  for  the  larceny  in  Rhode  Island.  And  under  the  rule  given  to 
the  jury  is  presented  a  case  where,  for  one  and  the  same  moral  act, 
for  one  and  the  same  violation  of  the  rights  of  property,  the  subject 
may  be  twice  convicted  and  punished.  Nay,  more,  if  a  man  had  stolen 
a  watch  in  Rhode  Island  and  travelled  with  it  into  every  state  of  the 
Union,  he  might,  under  the  rule  given  to  the  jury,  if  his  life  endured 
so  long,  be  indicted  and  punished  in  thirty-two  states  for  one  and  the 
same  offence. 

And  it  is  well  to  observe  that  it  is  the  retention  of  the  property 
-which  is  the  cause  of  the  new  offence,  and  the  carrying  of  it  from  the 
place  of  caption  into  another  state.  If  the  defendant  had  stolen  prop- 
erty in  Rhode  Island  and  consumed  or  destroyed  it,  and  then  had 
removed  to  Massachusetts,  but  one  offence  would  have  been  committed, 
and  that  in  Rhode  Island. 

Such  are  some  of  the  more  obvious  difficulties  attending  the  position 
that  an  offence  committed  in  one  state  may  be  tried  and  punished  in 
another.  The  doctrine  violates  the  first  and  most  elementary  princi- 
ples of  government.  No  state  or  people  can  assume  to  punish  a  man 
for  violating  the  laws  of  another  state  or  people.  The  surrender  of 
fugitives  from  justice,  whether  under  the  law  of  nations,  treaties  with 
foreign  powers,  or  the  provisions  of  the  Constitution  of  the  United 
States,  proceeds  upon  the  ground  that  the  fugitive  cannot  be  tried 
and  punished  by  any  other  jurisdiction  than  the  one  whose  laws  have 
been  violated.  Even  in  cases  of  the  invasion  of  one  country  by  the 
subjects  of  another,  it  is  the  violation  of  its  own  laws  of  neutrality 
that  the  latter  country  punishes,  and  not  the  violation  of  the  laws  of 
the  country  invaded.  The  exception  of  piracy  is  apparent  rather  than 
real.  Piracy  may  be  punished  by  all  nations  because  it  is  an  offence 
against  the  law  of  nations  upon  the  seas,  which  are  the  highways  of 
nations. 

The  ruling  of  the  learned  Chief  Justice  of  the  Common  Pleas  was,  I 
may  presume,  based  upon  the  decisions  of  this  court  in  Commonwealth 
V.  CuUins,  1  Mass.  116,  and  Commonwealth  v.  Andrews,  2  Mass.  14. 

It  is  certainly  the  general  duty  of  the  court  to  adhere  to  the  law  as 
decided.  Especially  is  this  the  case  where  a  change  in  the  decision 
would  impair  the  tenure  by  which  the  rights  and  property  of  the  sub- 
ject are  held.  But  even  with  respect  to  these,  where  it  is  clear  a  case 
has  been  decided  against  the  well  settled  principles  of  law  and  of 
reason,  it  is  the  duty  and  the  practice  of  the  courts  to  revise  such 
decision,  and  to  replace  the  law  on  its  old  and  solid  foundation.  This 
is  peculiarly  the  duty  of  the  courts  where  such  decision  works  its  in- 


823  COMMOXWEALTH    V.    HOLDER.  [CHAP.  XIL 

justice  by  impairing  the  personal  rights  of  the  citizen,  or  b\-  subjecting 
him  to  burdens  and  penalties  which  he  never  justly  incurred. 

In  my  judgment,  the  courts  of  this  Commonwealth  have  not,  and 
never  had,  under  the  Constitution  of  the  United  States  or  otherwise, 
the  rightful  power  to  try  a  man  for  an  offence  committed  in  another 
state.  It  is  in  vain,  it  seems  to  me,  to  attempt  to  preserve  and  make 
rules  of  conduct  decisions  founded  upon  wholly  eiToneous  views  of  the 
relations  which  the  states  of  the  Union  bear  to  each  other  under  the 
Constitution,  and  in  conflict  with  well  settled  principles  of  constitu- 
tional and  international  law. 

I  should  be  content  to  rest  my  dissent  from  the  judgment  of  the 
court  in  the  case  at  bar  upon  the  principles  affirmed  in  the  recent  case 
of  Commonwealth  v.  Uprichard,  3  Grav.  434.  In  effect  that  case 
overrules,  as  its  reasoning  thoroughlv  undermines,  the  earlier  cases. 
They  cannot  stand  together. 

But  as  the  decision  in  the  case  at  bar  rests  upon  the  authority  of 
the  cases  in  the  first  and  second  of  Massachusetts  Reports,  it  may  be 
well  to  examine  with  care  the  grounds  upon  which  the}-  rest.  Such 
an  examination  will  show,  I  think,  not  only  that  the  cases  were  put 
upon  erroneous  views  as  to  the  relation  of  the  states,  but  that  they 
were  also  unsound  at  common  law. 

In  the  case  of  Commonwealth  v.  Cullins,  a  jur}'  trial  where  three 
judges  of  the  court  were  present,  the  evidence  showing  that  the  goods 
were  taken  in  the  State  of  Rhode  Island,  Mr.  Justice  Sedgwick,  who 
charged  the  jur\',  said  that  "  the  court  were  clearly  of  opinion  that 
stealing  goods  in  one  state  and  conveying  stolen  goods  into  another 
state  was  similar  to  stealing  goods  in  one  county  and  conveying  tlie 
stolen  goods  into  another,  which  was  always  holden  to  be  felony  in 
both  counties."  Whatever  the  points  of  similarit}',  there  was  this 
obvious  and  vital  difference,  to  wit,  that  conviction  in  one  count}'  was 
a  bar  to  conviction  in  another,  and  that  conviction  in  one  state  is  no 
bar  to  conviction  in  another  state. 

It  was  a  do.ctrine  of  the  common  law  that  the  asportation  of  stolen 
goods  from  one  county  to  another  was  a  new  caption  and  felony  in 
the  second  county,  —  a  legal  fiction  devised  for  greater  facility  in  con- 
victing the  offender  where  it  was  uncertain  where  the  first  caption  took 
place.  The  foundation  of  the  rule  was  that  the  possession  of  the  owner 
continued,  and  that  ever}'  moment's  continuance  of  the  trespass  may 
constitute  a  caption  as  well  as  the  first  taking.  But  in  what  respect 
was  the  taking  in  one  state  and  conveying  into  another  state  similar  to 
the  taking  in  one  county  and  conveying  into  another  county?  It  could 
only  be  "  similar"  because  the  legal  relation  which  one  state  bears  to 
another  is  similar  to  that  which  one  county  bears  to  another ;  because, 
under  another  name,  there  was  the  same  thing.  If  a  man  is  to  be  con- 
victed of  crime  by  analogy,  the  analogy  certainly  should  be  a  close 
one.  Here  it  was  but  a  shadow.  In  the  different  counties  there  was 
one  law,  one  mode  of  trial,  the  same  interpretation  of  the  law,  and  the 


SECT.  II.]  COMMONWEALTH    r.    HOLDER.  827 

same  punishment.  The  rule,  mode  of  trial,  and  jurisdiction  were  not 
changed. 

The  states  of  the  Union,  it  is  quite  plain,  hold  no  such  relation  to 
each  other.  As  to  their  internal  police,  their  law  of  crimes  and  punish- 
ments, the}-  are  wholly  independent  of  each  other,  having  no  common 
law  and  no  common  umpire.  The  provision  indeed  in  the  Constitu- 
tion of  the  United  States  for  surrendering  up  fugitives  from  justice  by 
one  state  to  another  is  a  clear  recognition  of  the  independence  of  the 
states  of  each  other  in  these  regards.  It  excludes  the  idea  of  any 
jurisdiction  in  one  state  over  crimes  committed  in  another,  and  at  the 
same  time  saves  any  necessity  or  reason  for  such  jurisdiction.  Nor 
is  there  any  provision  in  the  Constitution  of  the  United  States  which 
impairs  such  independence,  so  far  as  the  internal  police  of  the  states 
is  concerned.  On  the  other  hand,  the  widest  diversity  exists  in  the 
Institutions,  the  internal  police,  and  the  criminal  codes  of  the  several 
states,  some  of  them,  as  Louisiana  and  Texas,  having  as  the  basis 
of  their  jurisprudence  the  civil  and  not  the  common  law.  In  the 
relation  which  Louisiana  holds  to  this  State  can  any  substantial  analogy 
be  found  to  that  which  Surrey  bears  to  Middlesex? 

An  analogy  closer  and  more  direct  could  have  been  found  in  the 
books  when  Commonwealth  y.  Cullins  was  decided.  It  was  that  of 
Scotland  to  England,  subject  both  to  one  crown  and  one  legislature ; 
yet  it  had  been  decided  that  when  one  stole  goods  in  Scotland  and 
carried  them  to  England,  he  could  not  be  convicted  in  the  latter 
country.  Rex  i'.  Anderson  (1763),  2  East  P.  C.  772;  2  Russell  on 
Crimes  (7th  Amer.  ed.),  119.  Or  an  analogy  might  have  been  found 
in  the  cases  of  goods  stolen  on  the  high  seas  and  brought  into  the 
counties  of  England,  of  which  the  courts  of  common  law  refused  to 
take  cognizance  because  they  were  not  felonies  committed  within  their 
jurisdiction.  1  Hawk,  c  33,  §52;  3  Inst.  113.  In  these  cases  a 
test  would  have  been  found,  applicable  to  the  alleged  larceny  of  Cullins, 
to  wit,  the  offence  was  not  committed  in  a  place  witliin  the  jurisdiction 
of  the  court,  but  in  a  place  as  foreign  to  their  jurisdiction,  so  far  as 
this  subject-matter  was  concerned,  as  England  or  the  neighboring 
provinces.  The  case  of  Commonwealth  v.  Cullins  has  no  solid  principle 
to  rest  upon. 

The  case  of  Commonwealth  v.  Andrews,  two  years  later,  may  be 
held  to  recognize  the  rule  laid  down  in  Commonwealth  v.  Cullins, 
though  it  was  an  indictment  against  Andrews  as  the  receiver  of  goods 
stolen  by  one  Tattle  in  New  Hampshire  ;  and  though  there  is,  at  the 
least,  plausible  gi-onnd  for  saying  that  there  was  a  new  taking  by 
Tuttle  at  Harvard  in  the  county  where  the  defendant  was  indicted  and 
tried.  Indeed,  Mr.  Justice  Parker  takes  this  precise  ground  ;  though 
he  adds  that  "  the  common-law  doctrine  respecting  counties  may  well 
be  extended  by  analogy  to  the  case  of  states  united,  as  these  are, 
under  one  general  government."  If  that  union  was  with  reference  to 
or  concerned  the  internal  police  or  criminal  jurisprudence  of  the  several 


828  COMMONWEALTH   V.   HOLDER.  [CHAP.  XII. 

States ;  if  it  was  not  obviously  for  other  different,  distinct,  and  well 
defined  purposes  ;  and  if  we  could  admit  the  right  of  the  court  to 
extend  by  analogy  the  provisions  of  the  criminal  law  and  so  to  enlarge 
its  jurisdiction,  —  there  would  be  force  in  the  suggestion.  As  it  is,  we 
must  be  careful  not  to  be  misled  by  the  errors  of  wise  and  good  men. 

Judge  Thatcher  puts  the  case  wholly  on  the  felonious  taking  at 
Harvard. 

Mr.  Justice  Sedgwick,  though  having  the  same  view  as  to  the  taking 
at  Harvard,  does  not  rest  his  opinion  upon  it,  but  upon  the  ground 
that  the  continuance  of  the  trespass  is  as  much  a  wrong  as  the  first 
taking.  Tliis  doctrine  applies  as  well  where  the  original  caption  was 
in  a  foreign  country  as  in  another  state  of  the  Union.  If  you  hold 
that  every  moment  the  thief  holds  the  property  he  commits  a  new 
felon",  you  may  multiply  his  offences  ad  infinitum  ;  but  in  so  carrying 
out  what  is  at  the  best  a  legal  fiction,  you  shock  the  common-sense  of 
men  and  their  sense  of  justice.  Mr.  Justice  Sedgwick  will  not  admit 
the  force  of  the  objection  that  the  thief  would  be  thus  twice  punished, 
but  regards  with  complacency  such  a  result.  But  as  we  are  to  pre- 
sume that  the  punishment  is  graduated  to  the  offence,  and,  as  far  as 
punishment  may,  expiates  the  wrong,  the  mind  shrinks  from  such  a 
consequence.  But  saying  that  whatever  he  might  think  upon  this 
question  if  it  were  res  Integra^  he  puts  his  decision  upon  the  case  of 
Paul  Lord,  decided  in  1792,  and  that  of  Commonwealth  v.  Cullins. 

Chief  Justice  Dana  relies  upon  the  cases  before  stated  and  a 
general  practice,  and  also  upon  the  principle  that  every  moment's 
felonious  possession  is  a  new  caption. 

Such  was  the  condition  of  the  law  in  this  state  when  the  case  of 
Commonwealth  v.  Uprichard  came  before  the  court.  In  that  case  the 
original  felonious  taking  was  in  the  province  of  Nova  Scotia.  The 
bringing  of  the  stolen  goods  into  this  Commonwealth  was  held  not  to 
be  a  larceny  here.  But  if  it  be  true  that  every  act  of  removal  or  change 
of  possession  is  a  new  caption  and  asportation,  that  every  moment's 
continuance  of  the  trespass  is  a  new  taking,  —  if  this  legal  fiction  has 
any  life,  it  is  diflScult  to  see  why  the  bringing  of  the  goods  within 
another  jurisdiction  was  not  a  new  offence.  No  distinction  in  principle 
exists  between  this  case  and  a  felonious  taking  in  another  state  and 
bringing  into  this.  So  far  as  the  law  of  crimes  and  punishments  is 
concerned,  the  states  are  as  independent  of  each  other  as  are  the  States 
and  the  British  Provinces. 

The  case  of  Commonwealth  v.  Uprichard  rests,  I  think  immovabh', 
upon  the  plain  grounds  that  laws  to  punish  crime  are  local  and  limited 
to  the  boundaries  of  the  States  which  prescribe  them  ;  that  the  com- 
mission of  a  crime  in  another  State  or  country  is  not  a  violation  of  our 
law,  and  does  not  subject  the  offender  to  any  punishment  prescribed  by 
our  law.  These  are  principles  of  universal  jurisprudence,  and  as  sound 
as  they  are  universal. 

It  is  sometimes  said  that  after  all  the  offender  is  only  tried  and  con- 


SECT.  II.]  STANLEY    V.    STATE.  829 

victed  for  the  offence  against  our  laws.  This  clearly  is  not  so.  It  is 
only  by  giving  force  to  the  law  of  the  country  of  the  original  caption 
that  we  can  establish  the  larceny.  It  is  the  continuance  of  the  caption 
felonious  by  the  law  of  the  place  of  caption.  In  the  directions  given 
to  the  jury  such  effect  is  given  to  the  laws  of  Rhode  Island.  The  jury 
were  instructed  that  if  the  defendant  broke  and  entered  into  the  shop 
of  Henry  W.  Dana  in  Smithfield  in  Rhode  Island  and  thence  brought 
the  goods  into  this  county,  the  indictment  could  be  maintained.  The 
felonious  taking  in  Rhode  Island  is  the  inception  and  groundwork  of 
the  offence.  The  proceeding  is  in  substance  and  effect  but  a  mode  of 
enforcing  the  laws  of  and  assuming  jurisdiction  over  offences  committed 
in  another  state. 

For  the  reasons  thus  imperfectly  stated,  I  am  of  opinion  that  the 
instructions  of  the  Court  of  Common  Pleas  were  erroneous,  that  the 
exceptions  should  be  sustained,  the  verdict  set  aside,  and  a  new  trial 
granted.  Exceptions  overruled. 


STANLEY   V.   STATE. 
Supreme  Court  of  Ohio.     1873. 

[Reported  24  Ohio  State,  166.] 

McIlvaine,  J.^  At  the  November  term,  1873,  of  the  Court  of 
Common  Pleas  of  Cuyahoga  County,  the  plaintiff  in  error,  William 
Stanley,  was  convicted  of  the  crime  of  grand  larceny,  and  sentenced 
for  a  term  of  years  to  the  penitentiary. 

The  indictment  upon  which  he  was  convicted  charged  "  that  William 
Stanley,  late  of  the  county  aforesaid,  on  the  twentieth  day  of  June,  in 
the  "year  one  thousand  eight  hundred  and  sevent3'-three,  at  the  county 
aforesaid,  with  force  and  arms,"  certain  silverware,  "  of  the  goods  and 
chattels  and  property  of  George  P.  Harris,  then  and  there  being,  then 
and  there  unlawfully  and  feloniously  did  steal,  take,  and  carry  away," 
etc. 

The  following  facts  were  proven  at  the  trial:  1.  That  the  goods 
described  in  the  indictment  belonged  to  Harris,  and  were  of  the  value 
of  one  hundred  and  sixty-five  dollars.  2.  That  they  were  stolen  from 
Harris  on  the  20th  of  June,  1873,  at  the  city  of  London,  in  the  domin- 
ion of  Canada.  3.  That  they  were  afterward,  on  the  26th  day  of  same 
month,  found  in  the  possession  of  the  defendant,  in  said  county  of 
Cuyahoga.  It  is  also  conceded  that,  in  order  to  convict,  the  jury  must 
have  found  that  the  goods  were  stolen  by  the  defendant  in  the  dominion 
of  Canada,  and  carried  thence  by  him  to  the  State  of  Ohio. 

Upon  this  state  of  facts,  was  the  prisoner  lawfully  convicted?     In 

1  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


830  STANLEY   V.    STATE.  [CHAP.  XII. 

other  words,  if  property  be  stolen  at  a  place  be^'ond  the  jurisdiction  of 
this  state  and  of  the  United  States,  and  afterward  brought  into  this 
state  by  tlie  thief,  can  he  be  lawfully  convicted  of  larceny  in  this 
state  ? 

In  view  of  the  free  intercourse  between  foreign  countries  and  this 
state,  and  the  immense  immigration  and  importation  of  propert}'  from 
abroad,  this  question  is  one  of  ver^'  great  importance  ;  and  I  ma}'  add 
that  its  determination  is  unaided  by  legislation  in  this  state. 

In  resolving  this  question  we  have  been  much  embarrassed  by  a 
former  decision  of  this  court,  in  Hamilton  v.  Tlie  State,  11  Ohio,  435. 
In  that  case  it  was  held  by  a  majority  of  the  judges  that  a  person 
having  in  his  possession  in  this  state  property  which  had  been  stolen 
by  him  in  another  state  of  the  Union,  might  be  convicted  here  of 
larceny. 

The  decision  appears  to  have  been  placed  upon  the  ground  "that  a 
long-sustained  practice,  in  the  criminal  courts  of  this  state,  had  settled 
the  construction  of  the  point,  and  established  the  right  to  convict  in 
such  cases." 

Whether  that  decision  can  be  sustained  upon  the  principles  of  the 
common  law  or  not,  it  must  be  conceded  that  for  more  than  thirty 
3-ears  it  has  stood,  unchallenged  and  unquestioned,  as  an  authoritative 
exposition  of  the  law  of  this  state.  And  although  it  has  received  no 
express  legislative  recognition,  it  has  been  so  long  followed  in  our 
criminal  courts,  and  acquiesced  in  by  other  departments  of  the  govern- 
ment, that  we  are  inclined  to  the  opinion  that  it  ought  not  now  to  be 
overruled  ;  but,  on  the  other  hand,  its  rule  sliould  be  applied  and  sus- 
tained, in  like  cases,  upon  the  principle  of  stare  decisis. 

Before  passing  from  Hamilton  v.  The  State,  it  should  be  added  that 
the  same  question  has  been  decided  in  the  same  wa}-  by  the  courts  of 
several  of  our  sister  States.  The  State  v.  Ellis,  3  Conn.  185  ;  The 
State  V.  Bartlett,  11  Vt.  650  ;  The  State  v.  Underwood,  49  Maine,  181  ; 
Watson  V.  The  State,  36  Miss.  593  ;  The  State  v.  Johnson,  2  Oregon, 
115;  The  State  v.  Bennett,  14  Iowa,  479  ;  Ferrell  v.  Commonwealth, 
1  Duvall,  153;  Commonwealth  v.  Cullins,  1  Mass.  116.  Tlie  same 
point  has  been  decided  the  same  wa}-  in  several  subsequent  cases  in 
Massachusetts. 

The  exact  question,  however,  now  before  us  has  not  been  decided  by 
this  court ;  and  we  are  unanimously  of  opinion  that  the  rule  laid  down 
in  Hamilton  v.  The  State  should  not  be  extended  to  cases  where  the 
property  was  stolen  in  a  foreign  and  independent  sovereignt}'. 

We  are  unwilHng  to  sanction  the  doctrine  or  to  adopt  the  practice, 
whereby  a  crime  committed  in  a  foreign  country,  and  in  violation  of 
the  laws  of  that  country  only,  may,  by  construction  and  a  mere  fiction, 
be  treated  as  an  offence  committed  within  this  state  and  in  violation  of 
the  laws  thereof.  In  this  case  the  goods  were  stolen  in  Canada.  The}- 
were  there  taken  from  the  custody  of  the  owner  into  the  custody  of  the 
thief.     The   change   of  possession   was   complete.     The   goods   were 


SECT.  II.]  STANLEY    V.    STATE.  831 

afterward  carried  by  the  thief  from  the  Dominion  of  Canada  to  the 
State  of  Ohio.  During  the  transit  his  possession  was  continuous  and 
uninterrupted.  Now,  the  theory  upon  which  this  conviction  is  sought 
to  be  sustained  is  that  the  legal  possession  of  the  goods  remained  all 
the  while  in  the  owner.  If  this  theory  be  true,  it  is  true  as  a  fiction  of 
the  law  only.  The  fact  was  otherwise.  A  further  theory  in  support 
of  the  conviction  is  that  as  soon  as  the  goods  arrived  within  the  State 
of  Ohio,  the  thief  again  took  them  from  the  possession  of  the  owner 
into  his  own  possession.  This  theory  is  not  supported  by  the  facts, 
uor  is  there  any  presumption  of  law  to  sustain  it. 

That  the  right  of  possession,  as  well  as  the  right  of  property, 
remained  all  the  time  in  the  owner  is  true  as  matter  of  law.  And  it  is 
also  true,  as  a  matter  of  fiction,  that  the  possession  of  the  thief, 
although  exclusive  as  it  must  have  been  in  order  to  make  him  a  thief, 
is  regarded  as  the  possession  of  the  owner,  for  some  purposes.  Thus, 
stolen  goods,  while  in  the  possession  of  the  thief,  may  be  again  stolen 
by  another  thief;  and  the  latter  may  be  charged  with  taking  and  carry- 
ing away  the  goods  of  the  owner.  And  for  the  purpose  of  sustaining 
such  charge,  the  possession  of  the  first  thief  will  be  regarded  as  the 
possession  of  the  true  owner.  This  fiction,  however,  in  no  way  changes 
the  nature  of  the  facts  which  constitute  the  crime  of  larceny. 

What  we  deny  is  that  a  mere  change  of  place  by  the  thief,  while  he 
continues  in  the  uninterrupted  and  exclusive  possession  of  the  stolen 
property,  constitutes  a  new  "  taking  "  of  the  property,  either  as  matter 
of  fact  or  of  law. 

Larceny,  under  the  statute  of  this  state,  is  the  same  as  at  common 
law,  and  may  be  defined  to  be  the  felonious  taking  and  carrying  away 
of  the  personal  property  of  another.  But  no  offence  against  this  stat- 
ute is  complete  until  every  act  which  constitutes  an  essential  element 
in  the  crime  has  been  committed  within  the  limits  of  this  state.  The 
act  of  "taking"  is  an  essential  element  in  the  crime,  and  defines  the 
act  by  which  the  possession  of  the  property  is  changed  from  the  owner 
to  the  thief.  But  the  act  of  "  taking  "  is  not  repeated  after  the  change 
of  possession  is  once  complete,  and  while  the  possession  of  the  thief 
continues  to  be  exclusive  and  uninterrupted.  Hence,  a  bailee  or  finder 
of  goods,  who  obtains  complete  possession  without  any  fraudulent 
intent,  cannot  be  convicted  of  larceny  by  reason  of  any  subsequent 
appropriation  of  them. 

AVe  fully  recognize  the  common-law  practice,  that  when  property  is 
stolen  in  one  county,  and  the  thief  is  afterward  found  in  another 
county  with  the  stolen  property  in  his  possession,  he  may  be  indicted 
and  convicted  in  either  county,  but  not  in  both.  This  practice  obtained 
notwithstanding  the  general  rule  that  every  prosecution  for  a  criminal 
cause  must  be  in  the  county  where  the  crime  was  committed.  The 
reason  for  the  above  exception  to  the  general  rule  is  not  certainly 
known,  nor  is  it  important  in  this  case  that  it  should  be  known,  as  it 
relates  to  the  matter  of  venue  only,  and  does  not  afiect  the  substance 


332  STANLEY   V.   STATE.  [ciIAr.  XII. 

of  the  offence.  "We  are  entirely  satisfied,  however,  that  the  right  to 
prosecute  the  thief  in  any  county  wherein  he  was  found  in  possession 
of  the  stolen  property,  was  not  asserted  by  the  Crown,  because  of  the 
fact  that  a  new  and  distinct  larceny  of  the  goods  was  committed  when- 
ever and  wherever  the  thief  might  pass  from  one  county  into  another. 
His  exemption  from  more  than  one  conviction  and  punishment  makes 
this  proposition  clear  enough.  The  common  law  provided  that  no 
person  should  be  twice  vexed  for  the  same  cause.  It  was  through  the 
operation  of  this  principle  that  the  thief  who  stole  property  in  one 
county,  and  was  afterward  found  with  the  fruits  of  his  crime  in  another, 
could  not  be  tried  and  convicted  in  each  county.  He  was  guilty  of  one 
offence  onl}-,  and  that  offence  was  complete  in  the  count}'  where  the 
property  was  first  "  taken  "  by  the  thief,  and  removed  from  the  place 
in  which  the  owner  had  it  in  possession. 

When  goods  piratically  seized  upon  the  high  seas  were  afterward 
carried  b}'  the  thief  into  a  county  of  England,  the  common-law  judges 
refused  to  take  cognizance  of  the  larceny,  "  because  the  original  act — ■ 
namel}',  the  taking  of  them  —  was  not  an}-  offence  whereof  the  com- 
mon law  taketh  knowledge  ;  and  by  consequence,  the  bringing  them 
into  a  county  could  not  make  the  same  a  felony-  punishable  by  our 
law."     13  Coke,  53  ;  3  Inst.  113  ;  1  Hawk.  c.  19,  sec.  52. 

The  prisoner  was  charged  with  larceny-  at  Dorsetshire,  where  he  had 
possession  of  the  stolen  goods.  The  goods  had  been  stolen  by  him  in 
the  island  of  Jersey,  and  afterward  he  brought  them  to  Dorsetshire. 
The  prisoner  was  convicted.  All  the  judges  (except  Raymond,  C.  B., 
and  Taunton,  J.,  who  did  not  sit)  agreed  that  the  conviction  was 
wrong.     Rex  v.  Prowes,  1  Moody  C.  C.  349. 

Property  was  stolen  by  the  prisoner  in  France,  and  was  transported 
to  London,  where  it  was  found  in  his  possession.  Parke,  B.,  directed 
the  jury  to  acquit  the  prisoner  on  the  ground  of  the  want  of  jurisdic- 
tion, which  was  done.     Regina  v.  Madge,  9  Car.  &  P.  29. 

A  similar  decision  was  made  in  a  case  where  the  property  was  stolen 
in  Scotland  and  afterward  carried  by  the  thief  into  England.  2  East 
P.  C.  772,  c.  16,  sec.  156. 

This  rule  of  the  common  law  was  afterward  superseded,  in  respect  to 
the  United  Kingdom,  by  the  statutes  of  13  Geo.  III.,  c.  21,  sec.  4,  and 
7  and  8  Geo.  IV.,  c.  29,  sec.  76,  whereby  prosecutions  were  authorized 
in  any  county  in  which  the  thief  was  found,  in  possession  of  property 
stolen  by  him  in  any  part  of  the  United  Kingdom. 

In  Commonwealth  v.  Uprichard,  3  Gray,  434,  the  property  had  been 
stolen  in  the  province  of  Nova  Scotia,  and  thence  carried  by  the  thief 
into  Massachusetts.  The  defendant  was  convicted  of  larceny  charged 
to  have  been  committed  in  the  latter  state.  This  conviction  was  set 
aside  by  a  unanimous  court,  although  two  decisions  had  been  made  b}' 
the  same  court  affirming  convictions  where  the  property  had  been 
stolen  in  a  sister  state,  and  afterward  brought  by  the  thief  into  that 
commonwealth.      Without    overruling   the  older   cases,    Chief-Justice 


SECT.  ir.J  STANLEY   V.   STATE. 


833 


Shaw,  in  delivering  the  opinion  of  the  court,  distinguished  between  the 
two  classes  of  cases. 

The  following  cases  are  in  point,  that  a  state,  into  which  stolen 
o-oods  are  carried  by  a  thief  from  a  sister  state,  has  no  jurisdiction  to 
convict  for  the  larceny  of  the  goods,  and  a  fortiori  when  the  goods 
were  stolen  in  a  foreign  country:  In  New  York :  People  y.  Gardner, 
2  Johns.  477  ;  People  v.  Schenk,  2  Johns.  479.  The  rule  was  after- 
ward changed  in  that  state  by  statute.  New  Jersey :  The  State  v. 
Le  Blanch,  2  Vroora,  82.  Pennsylvania:  Simmons  v.  Commonwealth, 
5  Binn.  617.  North  Carolina:  The  State  v.  Brown,  1  Hayw.  100. 
Tennessee  :  Simpson  v.  The  State,  4  Humph.  456.  Indiana :  Beall  v. 
The  State,  15  Ind.  378.  Louisiana:  The  State  v.  Reonnals,  14  L. 
An.  278. 

There  are  two  cases  sustaining  convictions  for  larceny  in  the  States, 
where  the  property  had  been  stolen  in  the  British  Provinces:  The 
States.  Bartlett,  11  Vermont,  650,  and  The  State  v.  Underwood,  49 
Maine,  181.  In  Bartlett's  case,  the  principle  is  doubted,  but  the  prac- 
tice adopted  in  cases  where  the  property  was  stolen  in  a  sister  state 
was  followed,  and  the  application  of  the  principle  thereby  extended. 
Underwood's  case  was  decided  by  a  majority  of  the  judges. 

After  reviewing  the  cases,  we  think  the  weight  of  authority  is  against 
the  conviction  and  judgment  below.  And  in  the  light  of  principle,  we 
have  no  hesitancy  in  holding  that  the  court  below  had  no  jurisdiction 
over  the  offence  committed  by  the  prisoner. 

The  judgment  below  is  wrong,  unless  every  act  of  the  defendant 
which  was  necessary  to  complete  the  offence  was  committed  within 
the  State  of  Ohio  and  in  violation  of  the  laws  thereof.  This  proposition 
is  not  disputed.  It  is  conceded  by  the  prosecution  that  the  taking  as 
well  as  the  removal  of  the  goods  cmimo  furandi,  must  have  occurred 
within  the  limits  of  Ohio.  It  is  also  conceded  that  the  first  taking,  as 
well  as  the  first  removal  of  the  goods  alleged  in  this  case  to  have  been 
stolen,  was  at  a  place  beyond  the  limits  of  the  state,  and  within  the 
jurisdiction  of  a  foreign  and  independent  sovereignty.  Now,  the  doc- 
trine of  all  the  cases  is  that  the  original  "  taking  "  and  the  original 
asportation  of  the  goods  by  the  prisoner  must  have  been  under  such 
circumstances  as  constituted  a  larceny.  If  the  possession  of  the  goods 
by  the  defendant  before  they  were  brought  into  this  state  was  a  lawful 
possession,  there  would  be  no  pretence  that  the  conviction  was  proper. 
The  same,  if  his  possession  was  merely  tortious.  The  theory  of  the 
law  upon  which  the  propriety  of  the  conviction  is  claimed  is  based  on 
the  assumption  that  the  property  was  stolen  in  Canada  by  the  prisoner. 
[\  By  what  rule  shall  it  be  determined  whether  the  acts  of  the  prisoner, 
whereby  he  acquired  the  possession  of  the  goods  in  Canada,  consti- 
tuted the  crime  of  larceny?  By  the  laws  of  this  state?  Certainly 
not.  The  criminal  laws  of  this  state  have  no  extra-territorial  opera- 
tion. If  the  acts  of  the  prisoner,  whereby  he  came  in  possession  of 
the   property  described  in  the  indictment,  were  not  inhibited  by  the 

53 


834  STANLEY    V.    STATE.  [CIIAP.  XIT, 

laws  of  Canada,  it  is  perfec%  dear  that  he  was  not  guiltj'  of  larceny 
there.  It  matters  not  that  they  were  such  as  would  have  constituted 
larceny  if  the  transaction  had  taken  place  in  this  state. 

Shall  the  question  whether  or  not  the  "  taking"  of  the  property  by 
the  prisoner  was  a  crime  in  Canada  be  determined  by  the  laws  of  that 
country?  If  this  be  granted,  then  an  act  which  was  an  essential  ele- 
ment in  the  combination  of  facts  of  which  Stanley  was  found  guilty 
was  in  violation  of  the  la.ws  of  Canada,  but  not  of  this  state ;  and  it 
was  because  the  laws  of  Canada  were  violated  that  the  prisoner  was 
convicted.  If  the  laws  of  that  country  had  been  different,  though  the 
conduct  of  the  prisoner  had  been  the  same,  he  could  not  have  been 
convicted.  I  can  see  no  wa}'  to  escape  this  conclusion,  and  if  it  be 
correct,  it  follows  that  the  acts  of  the  prisoner  in  a  foreign  country,  as 
well  as  his  acts  in  this  state,  were  essential  elements  in  his  offence ; 
therefore,  no  complete  offence  was  committed  in  this  state  against  the 
laws  thereof. 

I  have  no  doubt  the  legislature  might  make  it  a  crime  for  a  thief  to 
bring  into  this  state  property  stolen  bj-  him  in  a  foreign  countrj-.  And 
in  order  to  convict  of  such  crime,  it  would  be  necessar}-  to  prove  the 
existence  of  foreign  laws  against  larcen}'.  The  existence  of  such 
foreign  laws  would  be  an  ingredient  in  the  statutory  offence.  But  that 
offence  would  not  be  larceny  at  common  law,  for  the  reason  that  larceny 
at  common  law  contains  no  such  element.  It  consists  in  taking  and 
can-ying  away  the  goods  of  another  person  in  violation  of  the  rules  of 
the  common  law,  without  reference  to  any  other  law  or  the  laws  of  any 
other  countrj'. 

It  may  be  assumed  that  the  laws  of  meum  et  tuum  prevail  in  every 
country,  whether  civilized  or  savage.  But  this  state  has  no  concern  in 
them  further  than  to  discharge  such  duties  as  are  imposed  upon  it  by 
the  laws  of  nations,  or  through  its  connection  with  the  general  govern- 
ment, by  treaty  stipulations. 

Our  civil  courts  are  open  for  the  reclamation  of  property  which  maj- 
have  been  brought  within  our  jurisdiction,  in  violation  of  the  rights  of 
the  owner ;  but  our  criminal  courts  have  no  jurisdiction  over  offences 
committed  against  the  sovereignty  of  foreign  and  independent  states.^ 

Judgment  revei'sed  and  cause  remanded. 

Day,  C.  J.,  Welch,  Stone,  and  White,  JJ.,  concurring. 

1  In  addition  to  the  cases  cited  in  this  opinion  see  the  following :  That  conviction 
may  not  be  had  when  the  property  was  first  taken  outside  the  jurisdiction,  Lee  ?'. 
State,  64  Ga.  20.3 ;  People  v.  Loughridge,  1  Neb.  1 1 .  That  conviction  may  be  had, 
Stinsou  V.  People,  43  111.  397  ;  Worthington  r.  State,  58  Md.  403  ;  State  v.  Newman,  9 
Nev.  48 ;  State  v.  Hill,  19  S.  C.  435.     See  also  State  v.  Soraerville,  21  Me.  14.  —  Ed. 


SECT.  III.]  EEX  V.   RAVEN.  835 

SECTION   III. 

Taking  after  Delivery. 

(a)  Larceny  by  Bailee. 

1  Hawkins  Pleas  of  the  Crown  (7th  ed.,  1795),  209.  In  general, 
where  the  delivery  of  the  property  is  made  for  a  certain,  special,  and 
particular  purpose,  the  possession  is  still  supposed  to  reside  unparted 
with  in  the  first  proprietor.  Therefore  .  .  .  if  a  watch-maker  steal  a 
watch  delivered  to  him  to  clean  (O.  B.  1779,  No.  83)  ;  or  if  one  steal 
clothes  delivered  for  the  purpose  of  being  washed  (O.  B.  1 758,  No.  ]  8)  ; 
or  goods  in  a  chest  delivered  with  the  key  for  safe  custody  (O.  B.  1779, 
No.  83)  ;  or  guineas  delivered  for  the  purpose  of  being  changed  into 
half-guineas  (Ann  Atkinson's  Case,  Leach  Crown  Cas.  247,  notes)  ;  or 
a  watch  delivered  for  the  purpose  of  being  pawned  (Leach  Crown  Cas. 
320)  ;  in  all  these  instances,  the  goods  taken  have  been  thought  to 
remain  in  the  possession  of  the  proprietor,  and  the  taking  of  them  away 
held  to  be  felony.^ 

REX  V.  RAVEN. 

Newgate  Sessions,     1662. 

[Reported  Kelyng,  24.] 

Mary  Raven,  alias  Aston,  was  indicted  for  stealing  two  blankets, 
three  pair  of  sheets,  three  pillowbiers,  and  other  goods  of  William 
Cannon.  And  upon  the  evidence  it  appeared  that  she  had  hired  lodg- 
ings and  furniture  with  them  for  three  months,  and  during  that  time 
conveyed  awa}'  the  goods  which  she  had  hired  with  her  lodgings,  and 
she  herself  ran  away  at  the  same  time.  And  it  was  agreed  by  my 
Lord  Bridgeman,  myself,  and  my  brother  Wylde,  Recorder  of  London, 
then  present,  that  this  was  no  felon}',  because  she  had  a  special  prop- 
erty in  them  b}'  her  contract,  and  so  there  could  be  no  trespass ;  and 
there  can  be  no  felon}'  where  there  is  no  trespass,  as  it  was  resolved  in 
the  case  of  Holmes,  who  set  fire  on  his  own  house  in  London,  which 
was  quenched  before  it  went  further. 

1  These  cases  were  first  cited  in  the  6th  edition  of  the  treatise  (1787)  in  the  notes 
and  were  brought  up  into  tlie  text  in  the  7th  edition.  The  citations  of  the  cases  are  all 
(with  perhaps  one  exception)  wrong,  and  it  is  difficult  to  identify  them.  The  first 
case  appears  to  be  Rex  v.  Vansas,  O.  B.  1779,  No.  88.  The  prisoner  was  journeyman 
to  a  watchmaker,  and  was  given  the  watch  by  him  to  repair,  and  pawned  it ;  in  his 
defence  he  said,  "  The  watch  was  given  into  my  care ;  I  appeal  to  your  Lordship  and 
the  jury  whether  this  is  stealing."  He  was  convicted.  The  second  case  cannot  be 
identified.  The  third  case  is  really  Rex  v.  More,  O.  B.  1758,  No.  18.  A  woman  who 
had  been  sent  to  prison  gave  the  key  of  her  chest  to  the  defendant,  who  stole  goods 
from  it ;  the  chest  was  apparently  left  in  the  prosecutor's  house.  Atkinson's  Case  was 
a  case  of  larceny  by  a  servant.  The  last  case  cannot  be  found  in  Leach,  but  is  Rex  v. 
Bradley,  0.  B.  1784,  No.  613.     It  is  a  case  of  larceny  by  trick.  —  Ed. 


836  REX   V.   BANKS.  [chap.  XII. 

^^^  LEIGH'S   CASE. 

^   -  '     'Oo      •      Crown  Case  Reserved.     1800. 

^4j2>^j^^^   .y^j»oa>V^  ^  ^^^^^     ^Jieported  2  East  P.  C.  694.] 


^^■^-'-'"^^izABETH  Leigh  was  indicted  at  Wells  assizes,  in  the  summer  of 
1800,  for  stealing  various  articles,  the  propert}'  of  Abraham  Dyer.  It 
appeared  that  the  prosecutor's  house,  consisting  of  a  shop  containing 
muslin  and  other  articles  mentioned  in  the  indictment,  was  on  fire ;  and 
that  his  neighbors  had  in  general  assisted  at  the  time  in  removing  his 
goods  and  stock  for  their  security.  The  prisoner  probably  had  removed 
all  the  articles  which  she  was  charged  with  having  stolen  when  the 
prosecutor's  other  neighbors  were  thus  emploj'ed.  And  it  appeared 
that  she  removed  some  of  the  muslin  in  the  presence  of  the  prosecutor 
and  under  his  observation,  though  not  b}'  his  desire.  Upon  the  prose- 
cutor's applying  to  her  next  morning,  she  denied  that  she  had  an}'  of 
the  things  belonging  to  him  ;  whereupon  he  obtained  a  search  warrant, 
and  found  his  property  in  her  house,  most  of  the  articles  artfuUj'  con- 
cealed in  various  ways.  The  jur}'  found  her  guilt}' ;  but  it  was  sug- 
gested that  she  originally  took  the  articles  with  an  honest  purpose,  as 
her  neighbors  had  done,  and  that  she  would  not  otherwise  have  taken 
some  of  them  in  the  presence  and  under  the  view  of  the  prosecutor ; 
and  tliat  therefore  the  case  did  not  amount  to  felon  v.  The  jury  were 
instructed  that  whether  she  took  them  originally  with  an  honest 
intent  was  a  question  of  fact  for  their  consideration  ;  that  it  did  not 
necessarily  follow  from  the  circumstances  mentioned  that  she  took 
them  with  an  honest  intent.  But  even  if  the}'  were  of  that  opinion, 
yet  that  her  afterwards  hiding  the-  goods  in  the  various  ways  proved, 
and  denying  that  she  had  them,  in  order  to  convert  them  to  her  own 
use,  would  still  support  the  indictment.  The  jury  found  her  guilty  ; 
but  said  that,  in  their  opinion,  when  she  first  took  the  goods  from  the 
shop  she  had  no  evil  intention,  but  that  such  evil  intention  came  upon 
her  afterwards.  And  upon  reference  to  the  judges,  in  Michaelmas 
Term,  1800,  all  (absent,  Lawrence,  J.)  held  the  conviction  wrong  ;  for  if 
the  original  taking  were  not  with  intent  to  steal,  the  subsequent  con- 
version was  no  felony,  but  a  breach  of  trust.^ 


REX  V.  BANKS. 
Crown  Case  Reserved.     1821. 

[Reported  Russell  ^-  Ryan,  441.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Bayley,  at 
the  Lancaster  Lent  Assizes,  in  the  year  1812,  for  horse-stealing. 

1  Ace.  "Reg.  V.  Reeves,  5  Jur.  N.  S.  716. —  Ed. 


SECT.  III.]  KEGINA   V.   THRISTLE.  X  837 

It  appeared  that  the  prisoner  borrowed  a  horse,  under  pretence  of 
carrying  a  child  to  a  neighboring  surgeon.  Whether  he  carried  the 
cliild  thither  did  not  appear ;  but  the  day  following,  after  the  purpose 
for  which  he  borrowed  the  horse  was  over,  he  took  the  horse  in  a 
different  direction  and  sold  it. 

The  prisoner  did  not  offer  the  horse  for  sale,  but  was  applied  to  to 
sell  it,  so  that  it  was  possible  he  might  have  had  no  felonious  intention 
till  that  application  was  made. 

The  jury  thought  the  prisoner  had  no  felonious  intention  when  he 
took  the  horse ;  but  as  it  was  borrowed  for  a  special  pur])ose,  and  that 
purpose  was  over  when  the  prisoner  took  the  horse  to  the  place  where 
he  sold  it,  the  learned  judge  thought  it  right  upon  the  authority  of 
2  East  P.  C.  690,  694,  and  2  Russ.  1089,  1090, ^  to  submit  to  the  con- 
sideration of  the  judges  whether  the  subsequent  disposing  of  the  horse, 
when  the  purpose  for  which  it  was  borrowed  was  no  longer  in  view,  did 
not  in  law  include  in  it  a  felonious  taking. 

In  Easter  Term,  1821,  the  judges  met  and  considered  this  case.  n 
The}'  were  of  opinion  that  the  doctrine  laid  down  on  this  subject  in  Ar 
2  East  P.  C.  690  &  694,  and  2  Russell  1089  &  1090,  was  not  correct. 
They  held  that  if  the  prisoner  had  not  a  felonious  intention  when  he 
originally  took  the  horse,  his  subsequent  withholding  and  disposing  of 
it  did  not  constitute  a  new  felonious  taking,  or  make  him  guilty  of 
felony ;  consequently  the  conviction  could  not  be  supported. 


EEGINA  V.  THRISTLE. 

Crown  Case  Reserved.     1849. 

[Reported  3  Cox  C.  C.  573.] 

The  two  following  cases  were  reserved  by  the  Worcestershire  Court 
of  Quarter  Sessions :  — 

FIRST  case. 

The  prisoner,  William  Thristle,  was  indicted  at  the  Worcester  Quar- 
ter Sessions,  15th  October,  1849,  for  stealing  one  watch,  the  property 
of  Robert  Warren. 

It  appeared  in  evidence  that  the  prosecutor,  in  1848,  met  the  pris- 
oner, who  was  a  watchmaker  at  Malvern.  The  prosecutor  asked  pris- 
oner if  he  was  going  as  far  as  prosecutor's  house ;  the  prisoner  said 

1  In  2  Russ.  1089,  it  is  said  that,  "  In  the  case  of  a  delivery  of  a  horse  upon  hire  or 
loan,  if  such  delivery  were  obtained  bond  jide,  no  subsequent  wrongful  conversion 
pending  the  contract  will  amount  to  felony ;  and  so  of  other  goods.  But  when  the 
purpose  of  the  hiring  or  loan  for  which  the  delivery  was  made  has  been  ended, 
felony  may  be  committed  by  a  conversion  of  the  goods."  —  Rep. 


833  KEGINA   V.   THRISTLE.  [CHAP.  XII. 

"  jes,"  if  the  prosecutor  had  anything  for  him.  The  prosecutor  said 
his  watch  wanted  regulating,  if  prisoner  would  call. 

The  prisoner  went  to  the  prosecutor's  house,  and  after  examining 
the  watch,  told  the  prosecutor's  wife  that  he  could  do  nothing  with  it 
there,  but  must  take  it  to  his  own  house.  The  prisoner  then  took  it 
and  on  his  way  home  met  the  prosecutor,  to  whom  he  mentioned  that 
he  was  taking  the  watch  to  his  own  house  and  would  return  it  in  two 
or  three  days.     Prosecutor  made  no  objection. 

In  a  few  weeks  after,  prisoner  left  the  neighborhood  without  returning 
prosecutor's  watch,  and  it  was  not  afterwards  heard  of.  The  prisoner, 
on  being  taken  into  custody,  said,  "  I  have  disposed  of  the  propert3-, 
and  it  is  impossible  to  get  it  back." 

The  jur}'  returned  a  verdict  of  guilt}',  but  the  chairman  being  of 
opinion  that  there  was  no  evidence  of  a  felonious  taking  when  the 
prisoner  first  took  the  watch  from,  the  prosecutor's  house,  with  the 
knowledge  and  in  the  presence  of  the  prosecutor's  wife,  and  entertain- 
ing doubt  whether  the  prisoner's  subsequent  appropriation  of  the  watch 
could  under  the  circumstances  above  detailed,  constitute  larcen}',  re- 
quests the  opinion  of  this  court  as  to  the  correctness  of  the  conviction 
in  point  of  law. 

SECOND   CASE. 

The  same  prisoner  was  also  indicted  at  the  same  Sessions  for  steal- 
ing one  watch,  the  property  of  the  prosecutor,  Thomas  Reynolds.  It 
appeared  in  evidence  that  the  prisoner,  who  was  a  watchmaker  at  Mal- 
vern, received  from  the  prosecutor  some  time  in  January,  1848,  his 
silver  watch  to  repair.  The  prisoner  returned  it  to  the  prosecutor.  A 
few  days  after  the  prisoner  had  so  returned  it  the  prosecutor  told  the 
prisoner  that  the  watch  gained.  The  prisoner  said  that  if  the  prose- 
cutor would  let  him  have  it  again,  he  would  regulate  it  and  return  it 
in  a  day  or  two.  The  prosecutor  thereupon  gave  the  watch  to  the 
prisoner,  who  in  eight  or  nine  days  left  Malvern  with  the  prosecutor's 
watch  in  his  possession,  and  was  not  again  heard  of  until  he  was 
arrested  on  the  present  charge  some  time  afterwards. 

The  prosecutor  was  unable  to  say  whether  he  had  paid  for  the  repairs 
of  his  watch  or  not,  but  stated  that  the  prisoner,  when  he  left  Malvern, 
had  other  repairs  of  the  prosecutor's  on  hand  and  unflnished. 

The  prisoner,  when  taken  into  custody',  said,  '*I  have  disposed  of 
the  property,  and  it  is  impossible  to  get  it  back." 

The  jury  found  a  verdict  of  guilty,  but  the  chairman  being  of  opinion 
that  there  was  no  evidence  of  a  felonious  taking  on  the  part  of  the 
prisoner  when  he  received  the  watch  from  the  prosecutor  to  regulate 
it,  and  entertaining  a  doubt  whether  the  subsequent  departure  of  the 
prisoner  from  Malvern   with  the  prosecutor's  watch  in  his  possession 

/could  under  the  circumstances  above  detailed,  constitute  larceny,  re- 
quests the  opinion  of  this  court,  as  in  the  former  case.^ 

1  The  statement  of  authorities  in  point  is  omitted. 


/_ 


Y 


SECT.  III.]  REGINA   V.    PRATT.  839 

These  cases  were  not  argued  b}'  counsel  but  were  considered  by  the 
following  judges  :  Pollock,  C.  B.,  Patteson,  J.,  Wightuian,  J.,  Piatt,  B., 
and  Talfuurd,  J. 

Pollock,  C.  B.,  delivered  the  judgment  of  the  court.  The  indict- 
ment was  for  stealing  a  watch,  and  the  circumstances  set  out  in  the 
case  do  not,  on  the  question  of  fact,  justify  the  verdict  of  guilty ;  but 
in  giving  our  judgment  that  the  conviction  is  wrong,  we  do  not  proceed 
merelj'  upon  the  facts  stated.  The  question  put  to  us  in  the  conclusion 
of  the  case  seems  to  be  this  :  The  chairman  doubted  whether  a  subse- 
quent appropriation  could  make  the  entire  transaction  a  larceny,  there 
not  having  been  at  the  time  of  the  taking  any  animus  furandi ;  and 
I  think  we  are  bound  to  take  it  that  he  directed  tlie  jury  that  the 
subsequent  appropriation  might  render  the  transaction  larceny,  though 
there  was  not  anj'  intention  to  steal  at  the  time  of  the  taking  ;  and  in- 
deed, the  chairman's  opinion  seems  to  have  been  that  there  was  not 
the  animics furayidi  at  the  time  of  the  taking;  and  the  question  is, 
whether  he  was  right  in  his  direction.  We  think  not,  for  unless  there 
was  a  taking  anwio  furandi,  no  dishonest  appropriation  afterwards 
could  make  it  larcen}'.  Cotivictioti  reversed.^ 


REGINA   V.  PRATT. 

Crown  Case  Reserved.     1854. 
[Reported  6  Cox  C.  C.  373.] 

The  prisoner  was  tried  at  the  last  January  Sessions  for  the  borough 
of  Birmingham,  upon  a  charge  of  having  feloniously  stolen,  taken,  and 
carried  awa}"  on  the  18th  May,  in  the  16th  year  of  our  Sovereign  Lady 
the  Queen,  one  die  lathe,  the  goods  of  Edward  Barker  and  another ; 
and  on  the  19th  May,  in  the  same  year,  ten  lathes,  the  property  of  the 
said  Edward  Barker  and  another,  the  goods  and  chattels  of  the  prose- 
cutors ;  and  was  found  guilt}'. 

The  prisoner  was  a  thimble-maker  and  manufacturer,  carrying  on  his 
business  in  two  mills,  one  a  thimble-mill  and  the  other  a  rolling-mill, 
in  the  borough  of  Birmingham  ;  and  before  the  occurrence  hereinafter 
mentioned  he  was  the  owner  and  proprietor  of  the  property  mentioned 
in  the  indictment. 

On  the  14th  of  Maj',  1853,  the  prisoner,  being  in  pecuniary  difficul- 
ties, arranged  with  the  prosecutors,  Edward  Barker  and  William  Wayte, 
creditors  of  the  prisoner,  and  with  Mi-.  Collis,  an  attorney-at-law  who 
acted  on  their  behalf,  to  execute  an  assignment  to  trustees  for  the 

1  Ace.  Rep:.  V.  Reynolds,  2  Cox  C.  C.  170;  Reg.  v.  Hey,  3  Cox  C.  C.  .583  (overruling 
Reg.  V.  McNamee,  1  Moo.  C.  C.  368,  and  Reg.  v.  Jackson,  2  Moo.  C.  C.  32) ;  State  v. 
England,  8  Jones,  399;  Hill  v.  State,  57  Wis.  377.  See  Murphy  v.  People,  104  III 
528,  and  cases  cited  (statutory).  —  Ed. 


840 


EEGINA   V.   PKATT. 


[chap.  XII. 


0^ 


beiififit  of  his  creditors ;  and  on  the  18th  of  May  a  deed  of  assignment 
was  executed  by  him,  whereby  the  prisoner  assigned  to  the  prosecutors, 
as  trustees  for  the  purposes  therein  mentioned,  certain  property  by  the 
description  following:  ''all  and  every  the  engines,  lathes,  boilers,  fur- 
naces, horses,  carts,  machinery,  tools,  and  implements  of-trade,  the 
stock-in-trade,  goods,  wares,  merchandise,  household  furniture,  fixtures, 
plate,  linen,  china,  books  of  account,  debts,  sum  and  sums  of  money, 
and  all  securities  for  money,  vouchers,  and  other  documents  and  writ- 
liuo-s,  and  all  other  the  personal  estate  and  effects  w^hatsoever  and 
wheresoever,  save  and  except  leasehold  estates  of  the  said  David  Pratt, 
in  possession,  reversion,  remainder,  or  expectancy,  together  with  full 
and  free  possession,  right  and  title  of  entry  in  and  to  all  and  every  of 
the  mills,  works,  messuages,  or  tenements  and  premises  wherein  the 
said  several  effects  and  premises  then  were :  to  have  and  to  hold  the 
said  engines,  and  other  the  premises,  unto  the  said  William  Barker 
and  William  Wayte,  their  executors,  administrators,  and  assigns, 
absolutel}'." 

The  deed  was  executed  by  the  prisoner  in  the  presence  of,  and  was 
attested  by  James  Rous,  who  was  a  clerk  of  Mr.  CoUis,  and  who  was 
not  an  attorney  or  solicitor. 

On  the  29th  of  May  the  said  deed  was  again  executed  by  the  prisoner 
in  the  presence  of  the  said  Mr.  CoUis  and  in  all  respects  in  conformity 
with  the  provisions  of  the  68th  section  of  the  Bankrupt  Law  Consolida- 
tion Act,  1849,  with  the  view  of  preventing  the  deed  from  operating  as 
an  act  of  bankruptcy.  The  deed  had  been  duly  stamped  on  its  first 
execution,  but  no  second  stamp  was  affixed  on  its  second  execution, 
which  omission  was  made  the  ground  of  objection  to  its  receipt  in  evi- 
dence. I  admitted  it,  however,  subject  to  the  opinion  of  this  honorable 
court,  which  I  directed  should  be  taken  if  it  became  necessary.  At  the 
time  of  the  first  interview  with  Mr.  Collis  on  the  14th  May,  the  pris- 
oner said  he  had  stopped  work  altogether,  but  on  the  16th  it  was 
arranged  between  him  and  INIr.  Collis  that  the  rolling  business  should 
be  allowed  to  go  on  to  complete  some  unfinished  work.  Mr.  Collis 
then  told  him  to  keep  an  account  of  the  wages  of  the  men  employed  on 
the  rolling  work  and  to  bring  it  to  the  trustees.  This  the  prisoner  did, 
on  the  19lh  May,  when  the  wages  were  paid  by  the  trustees  and  the 
rolling  business  finally  stopped. 

In  the  nights  of  Monday,  the  16th  May,  and  of  every  other  day 
during  that  week,  the  prisoner  removed  property  conveyed  by  the  deed 
—  including  the  articles  mentioned  in  the  indictment  —  from  the  thimble 
and  rolling  mills  (some  of  the  heavier  macliines  being  taken  to  pieces 
lor  the  purpose  of  removal),  and  hid  them  in  the  cellar  and  other  parts 
of  the  house  of  one  of  his  workmen.  Some  time  afterwards,  and  after 
the  sale  by  the  trustees  of  the  remainder  of  the  property,  a  Mr.  Walker, 
who  had  been  a  large  purchaser  at  the  sale,  recommenced  tiie  business 
at  the  thimble  and  rolling  mills,  and  the  prisoner  acted  as  his  manager, 
when  the  property  which  formed  the  subject  of  the  indictment  was  by 
the  prisoner's  directions  brought  back  at  intervals  to  the  mills. 


SECT.  III.] 


EEGINA   V.   PEATT. 


841 


No  manual  possession  of  the  property  was  taken  by  the  prosecutors 
prior  to  its  removal  from  and  back  to  the  mills,  but  the  prisoner  re- 
mained in  possession  after  the  execution  of  the  deed,  in  the  same 
manner  as  before. 

I  asked  the  jury  three  questions  :  1st.  Did  the  prisoner  remove  the 
property  after  the  execution  of  the  deed  of  assignment?  2dly.  Did 
he  so  act  with  intent  fraudulently  to  deprive  the  parties  beneficiall} 
entitled  under  the  deed  of  the  goods?  odly.  AYas  he  at  the  time  of 
such  removal  in  the  care  of  and  custody  of  such  goods  as  the  agent  o% 
the  trustees  under  the  deed  ? 

I  put  these  three  questions  to  the  jury  separately,  and  they  separately 
answered  them  as  follows  :  1st.  He  did  remove  the  property  after  the 
execution  of  the  assignment.  2dly.  He  did  so  remove  it  with  fraudu- 
lent intent.  And,  lastly,  he  was  not  in  ihe  care  and  custody  of  the 
goods  as  the  agent  of  the  trustees.  And  thereupon  (being  of  opinion 
that  the  two  allirmative  answers  would  support  a  conviction,  notwith- 
standing the  third  answer  in  the  negative),  I  directed  the  jury  to  find 
the  prisoner  guilty,  which  they  did. 

The  questions  for  the  opinion  of  the  court  are:  1st.  'Whether  the 
deed  of  assignment  ought  to  have  be^n  received  in  evidence.  2d. 
Whether  my  direction  to  the  jury  was  correct.  And,  lastly,  whether 
the  conviction  is  valid. 

Bittleston  {Field  with  him),  for  the  prisoner.  The  conviction  is 
wrong.  1st.  The  prisoner  was  in  lawful  possession  of  the  goods,  and 
a  taking  by  him  did  not  constitute  larceny.  Furtum  non  est  ubi 
initium  habet  detentionis  per  dominum  rei.  The  trustees  had  not 
even  a  constructive  possession  for  this  purpose,  though  they  probably 
had  for  the  purpose  of  maintaining  a  civil  action  of  trespass  against 
a  third  person.  The  doctrine  of  constructive  possession  underwent 
consideration  in  R.  v.  Reed,  23  L.  J.  25,  M.  C,  where  a  servant  was 
sent  to  fetch  coals  ;  and  it  was  held  that  the  servant's  possession  was 
only  determined  when  he  had  placed  the  coals  in  his  master's  cart, 
which  was  the  same  thing  for  that  purpose  as  the  master's  warehouse. 
If  this  case  is  put  upon  tlie  ground  that  the  prisoner  was  a  bailee  and 
broke  bulk  the  jury  have  negatived  a  bailment.  2d.  Under  the  68th 
section  of  the  Bankrupt  Act,  the  re-execution  constituted  a  material 
alteration  of  the  deed,  which  therefore  required  to  be  restamped.  [Lord 
Campbell,  C.  J.  —  Was  not  the  re-execution  a  mere  nullity  ?]  Probably 
that  is  so. 

A.  Wills,  contra.  This  is  a  case  of  bailment.  The  trustees  per- 
mitted the  prisoner  to  continue  in  possession,  and  by  so  doing  consti- 
tuted him  a  bailee.  [Loud  Campbell,  C.  J.  —  The  jury  have  found  the 
contrary.]  They  have  only  found  that  he  was  not  their  agent ;  and 
there  is  a  distinction  between  an  agent  and  a  bailee. 

Lord  Campbell,  C.  J.  It  is  found  that  he  had  not  the  care  or  cus- 
tody of  the  goods  as  their  agent ;  and  that  clearly  negatives  a  bailment ; 
and  that  is  the  only  ground  upon  which  this  case  could  be  put.     The 


^ 


<y 


X-^ 


842 


carrier's  case. 


[chap.  XII. 


prisoner,  therefore,  was  in  lawful  possession  of  the  goods  and  cannot 
be  convicted  of  larceny'. 

of  a  n^afi  stealing  goods  out  of  his 
Conviction  quashed. 


Aldekson,  B. 
own  possession. 


This  is  a 


ECTION  III.  (contijiuecl). 


EN¥   BY   BkEAB 


iiNG  Bulk,  &c.        I    -  ~  *^  *  VO  in  fv. 


^^^^A^-^oA*^  Star  Chamber  and  Exchequer  Chamber.     1473i>k JL/Ia<Xa-*>^" 

\A^'  [fie/jor/ec/  Fear  Book,  13  £■£/.  7F.,  9,;?^.  5].  i  " 

In  the  Star  Chamber  before  the  King's  Council  such  matter  was 
shown  and  debated :  where  one  has  bargained  with  another  to  carry 
certain  bales  witli,  etc.,  and  other  things  to  Southampton,  he  took  them 
and  carried  them  to  another  place  and  broke  up  (debrusa)  the  bales 
and  took  the  goods  contained  therein  feloniously,  and  converted  them 
to  his  proper  use,  and  disposed  of  them  suspiciousl}' ;  if  that  ma}'  be 
called  felon}-  or  not,  that  was  the  case. 

Brian,  C.  J.  I  think  not,  for  where  he  has  the  possession  from  the 
party  by  a  bailing  and  delivery  lawfull}',  it  cannot  after  be  called  felony 
nor  trespass,  for  no  felony  can  be  but  with  violence  and  vi  et  armisy 
and  what  he  himself  has  he  cannot  take  with  vi  et  armis  nor  against  the 
peace  ;  therefore  it  cannot  be  felony  nor  trespass,  for  he  may  not  have 
any  other  action  of  these  goods  but  action  of  detinue. 

Hussey,  the  King's  Attorney.  Felony  is  to  claim  feloniously  the 
property  without  cause  to  the  intent  to  defraud  him  in  whom  the  prop- 
erty is.  animo  furandi,  and  here  notwithstanding  the  bailment  ut 
supra  the  property  remained  in  him  who  bailed  them,  then  this  property 
can  be  feloniousl}'  claimed  b}-  him  to  whom  they  were  bailed  as  well  as 
by  a  stranger ;  therefore  it  may  be  felony  well  enough. 
1/  The  Chancellor  [Booth].  Felony  is  according  to  the  intent,  and  i  i 
/I  his  intent  may  be  felonious  as  well  here  as  if  he  had  not  the  possession.  J  I 

Jlolineux,  ad  idem.  A  matter  law^fully  done  ma}'  be  called  felony 
or  trespass,  according  to  the  intent ;  sc.  if  he  who  did  the  act  do  not 
pursue  the  cause  for  which  he  took  the  goods,  as  if  a  man  distrain  for 
damage  feasant  or  rent  in  arrear,  and  then  he  sell  the  goods  and  kill  the 
beasts,  this  is  tort  now  where  at  the  beginning  it  was  good.  So  if  a 
man  come  into  a  tavern  to  drink  it  is  lawful ;  but  if  he  carry  away  the 
piece  or  do  other  trespass,  then  all  is  bad.  So  although  the  taking  was 
lawful  in  the  carrier  ut  supi-a^  etc.,  yet  when  he  took  the  goods  to 

^  Trauslation  of  Pollock  and  Wright,  Possession,  p.  134. 


SECT.  III.] 


CARRIERS    CASE. 


84- 


anotlier  place  ut  supra  he  did  not  pursue  his  cause,  and  so  by  his  act 
after  it  may  be  called  felony  or  trespass,  according  to  the  intent. 

Brian,  C.  J.  Where  a  man  does  an  act  out  of  his  own  head,  it 
may  be  a  lawful  act  in  one  case  and  in  another  not,  according  to  his  act 
afterwards,  —  as  in  the  cases  which  you  have  put,  —  for  there  his  intent 
shall  be  judged  according  to  his  act ;  but  where  I  have  goods  by  your 
bailment,  this  taking  cannot  be  made  bad  after  by  anything. 

Vavisour.  Sir,  our  case  is  better  than  a  bailment,  for  here  the 
things  were  not  delivered  to  him,  but  a  bargain  that  he  should  carry  the 
goods  to  Southampton  ut  supra,  and  then  if  he  took  them  to  carry 
them  thither  he  took  them  warrantably  ;  and  the  case  put  now  upon  the 
matter  shows,  that  is,  his  demeanor  after  shows,  that  he  took  them  as 
felon  and  to  another  intent  than  to  carr}'  them,  ut  supra,  in  which  case" 
he  took  them  without  warrant  or  cause,  for  that  he  did  not  pursue  the 
cause,  and  so  it  is  felon}- . 

Choke,  J.  I  think  that  where  a  man  has  goods  in  his  possession 
by  reason  of  a  bailment,  he  cannot  take  them  feloniousl}-,  being  in  pos- 
session ;  but  still  it  seems  here  that  it  is  felony,  for  here  the  things 
which  were  within  the  bales  were  not  bailed  to  him,  —  only  the  bales  as 
an  entire  thing  were  hailed  ut  siipra  to  carry,  — in  which  case  if  he  had 
given  the  bales  or  sold  them,  etc.,  it  is  not  felonj- ;  but  when  he  broke 
them,  and  took  out  of  them  what  was  within,  he  did  that  without  war- 
rant, —  as  if  one  bailed  a  tun  of  wine  to  carry  ;  if  the  bailee  sell  the  tun 
it  is  not  felony  nor  trespass ;  but  if  he  took  some  out  it  is  felony  ;  and 
here  the  twent}'  pounds  were  not  bailed  to  him,  and  peradventure  he 
knew  not  of  them  at  the  time  of  the  bailment.  So  is  it  if  I  bail  the 
key  of  my  chamber  to  one  to  guard  my  chamber,  and  he  take  my 
goods  within  this  chamber,  it  is  felony  ;  for  they  were  not  bailed  to 
him. 

It  was  then  moved  that  the  case  ought  to  be  determined  at  common 
law.^  The  matter  was  afterwards  argued  before  the  judges  in  the 
Exchequer  Chamber. 

And  there  it  was  holden  by  all  but  Nedham,  J.,  that  where  goods 
are  bailed  to  a  man  he  cannot  take  them  feloniously ;  but  ISTedham 
held  the  contrary,  for  he  might  take  them  feloniously  as  well  as  an- 
other ;  and  he  said  it  had  been  held  that  a  man  can  take  his  own  goods 
feloniously,  as  if  I  bail  goods  to  a  man  to  keep  and  I  come  privily  — 
intending  to  recover  damages  against  him  in  detinue  —  and  I  take  the 
goods  privily,  it  is  felony.  And  it  was  holden  that  where  a  man  has 
possession  and  that  determines,  he  can  then  be  felon  of  the  things,  as 
if  I  bail  goods  to  one  to  carry  to  my  house  and  he  bring  them  to  my 
house  and  then  take  them  thereout,  it  is  felony,  for  his  possession  is 
determined  when  they  were  in  my  house  ;  but  if  a  taverner  serve  a  man 
with  a  piece,  and  he  take  it  away,  it  is  felony,  foe  he  had  not  possession 
^of  this  piece,  for  it  was  put  on  the  table  but  to  serve  him  to  drink. 

So  much  of  the  case  as  relates  to  this  motion  is  omitted. 


^M 


844  tunnaed's  case.  [cilvp.  xii. 

And  so  is  it  of  my  butler  or  cook  in  my  house  ;  they  are  but  ministers 
to  serve  me,  and  if  they  carry  it  away  it  is  felony  ;  for  they  had  not 
possession,  but  the  possession  was  all  the  while  in  me ;  but  -otherwise 
perad venture  if  it  were  bailed  to  the  servants  so  that  they  are  in  pos- 
session of  it. 

Laicon,  J.  I  think  there  is  a  diversity  between  bailment  of  goods 
and  a  bargain  to  take  and  carry,  for  by  the  bailment  he  has  delivery  of 
possession  ;  but  bj'  the  bargain  he  has  no  possession  till  he  take  them, 
and  this  taking  is  lawful  if  he  takes  them  to  carry,  but  if  he  take  them 
to  another  intent  than  to  carry  them,  so  that  he  do  not  pursue  his  cause, 
I  think  that  shall  be  called  felony  well  enough. 

Brian,  C.  J.  I  think  that  it  is  all  one,  a  bargain  to  carry  them  and 
a  bailment,  for  in  both  cases  he  has  authority  of  the  same  person  in 
whom  the  property  was,  so  that  it  cannot  be  called  felony,  M.  2  E. 
III.,  in  an  indictment  ^'felonice  abduxit  unxmx  eqimni "  is  bad,  but  it 
should  be  cepit ;  so  in  eyre  at  Nott.,  8  E.  III.  ;  and  in  this  case  the 
taking  cannot  be  feloniousl}',  for  that  he  had  the  lawful  possession  ;  so 
then  the  breaking  the  bales  is  not  felony,  mde  4  E.  II.  in  trespass,  for 
that  plaintiff  had  bought  a  tun  of  wine  of  defendant,  and  while  it  was  in 
defendant's  guard  defendant  came  with  force  and  arms  and  broke  the 
tun  and  carried  away  parcel  of  the  wine  and  filled  up  the  tun  with 
water. 

And  for  that  it  appeared  he  had  possession  before,  the  writ,  being 
vi  et  armis,  was  challenged  ;  and  yet  it  was  held  well,  and  he  pleaded 
not  guilty,  and  then  the  justices  reported  to  the  Chancellor  in  Council 
that  the  opinion  of  the  most  of  them  was  that  it  was  felony.^ 


TUNNARD'S   CASE. 
Old  Bailey.     1729. 

[Reported  Leach  (ith  ed.)  214,  n.] 

John  Tdnnard  was  tried  before  Lord  Chief  Justice  Raymond,  pres- 
ent Mr.  Baron  Hale  and  Mr.  Justice  Denton,  for  stealing  a  brown 
mare,  the  property  of  Henry  Smith.  It  appeared  in  evidence  the 
prosecutor  lived  in  the  Isle  of  Ely ;  that  he  lent  the  prisoner  the  mare 
to  ride  to  a  place  three  miles  distant  ;  but  that  instead  of  riding  three 
miles  according  to  agreement  the  prisoner  rode  her  up  to  London,  and 
sold  her.  Lord  Chief  Justice  Raymond  left  it  with  the  jury  quo  animo 
he  had  ridden  the  mare  to  London,  and  they  found  him  guilty. 

The  Court.     The  finding  of  the  jury  will  make  this  case  felony  be- 

1  Ace.  State  v.  Fairclough,  29  Conn.  47;  Rohinson  v.  State,  1  Coldw.  120.  See 
Kelyng,  82;  2  East  P.  C.  695 :  Chaplin  Crim.  Cas.  298;  6  Harv.  L.  Rev.  250.  —Ed. 


SECT.  III.]  'rex   V.   MADOX.  845 

cause  he  rode  the  mare  farther  than  he  had  agreed  to  do ;  for  if  there 
had  been  no  special  agreement  the  privity  would  have  remained,  and 
it  could  not  have  been  felony. 


REX  V.  MADOX. 
Crown  Case  Reserved.     1805. 

[Reported  Russell  ^'  Ri/an,  301.] 

This  was  an  indictment  for  a  capital  offence  on  the  24  G.  IT.  c.  45, 
tried  before  Mr.  Baron  Graham  at  the  summer  Assizes  at  Winchester, 
in  the  year  1805. 

The  first  count  was  for  stealing  at  West  Cowes  six  wooden  casks 
and  one  thousand  pounds'  weight  of  butter,  value  £20,  the  goods  of  ty 

Richard  Bradley  and  Thomas  Clayton,  being  in  a  certain  vessel  called  ^  y 

a  sloop  in  the  port  of  Cowes,  the  said  port  being  a  port  of  entry  and 
discharge,  against  the  statute.  The  second  count  was  for  grand  lar- 
ceny. The  third  count  was  like  the  first  except  as  to  the  property 
in  the  goods,  which  was  laid  in  one  Richard  Lashmore ;  and  the 
fourth  count  was  for  grand  larceny  of  the  goods  of  the  said  Richard 
Lashmore.  0 

The  butter  stolen  was  part  of  a  cargo  of  280  firkins   or  casks,  N^Cj  / 
shipped  at  Waterford,  in  Ireland,  on  board  a  sloop,  the  "  Benjamin,"  \J 
of  which  the  prisoner  was  master  and  owner,  bound  to  Shoreham  and 
Newhaven  in  Sussex,  —  two  hundred  and  thirty  of  the  casks  being 
consigned  to  Bradley  and  Clayton  at  Shoreham,  and  fifty  of  them  to 
Lashmore  at  Brighthelmstone. 

It  appeared  that  the  ordinary  length  of  this  voyage,  with  fair  winds, 
was  a  week  or  nine  days,  but  in  winter  sometimes  a  month  or  five 
weeks.  In  the  present  instance  the  voyage  had  been  of  much  longer 
duration. 

The  vessel  first  touched  at  Sheepshead,  in  Ireland,  in  distress.  The 
prisoner  went  on  shore  at  Beerhaven,  where  he  signed  a  protest,  bear- 
ing date  on  the  20th  December,  1804.  From  thence  they  proceeded  to 
Lundy  Island  and  to  Tenby  in  Wales,  where  they  arrived  in  February, 
1805,  and  at  which  place  the  prisoner  went  on  shore  and  stayed  four 
or  five  weeks,  the  winds  being  foul.  From  thence  they  proceeded  to 
Scilly  and  then  to  Cowes,  where  they  arrived  on  the  last  day  of 
March  or  the  1st  of  April,  1805.  Cowes  was  in  their  course,  but  they 
had  previously  met  with  very  foul  weather  and  had  been  driven  to  the 
westward  of  Madeira,  during  which  time  the  vessel  had  been  often  in 
great  distress  ;  but  no  part  of  the  butter  had  at  any  time  been  thrown 
overboard.  LTpon  the  arrival  at  Cowes  the  prisoner  went  on  shore 
and  shortly  afterwards  applied  to  one  Lallow,  a  sailmaker,  for  a  suit  of 


846  KEX   V.   MADOX.  [cHAP.  XII. 

sails.  Lallow  went  aboard  the  vessel  and  took  measure  for  the  sails  ; 
and  after  his  return  to  Cowes  the  prisoner  called  upon  him  again  and 
bespoke  a  hammock,  and  then  stated  that  he  had  thirteen  casks  of 
butter  on  board  the  vessel,  belonging  to  himself,  and  requested  Lallow 
to  send  for  them  and  deposit  them  in  his  sail-loft  until  the  prisoner 
returned  from  Newhaven.  At  the  same  time  he  gave  Lallow  a  note 
or  order  for  the  mate  of  the  vessel,  by  which  the  mate  was  required 
to  deliver  thirteen  casks  of  butter  to  the  bearer.  Lallow  dispatched 
some  of  his  men  with  the  order  and  a  boat  to  the  vessel,  where  they 
arrived  in  the  night,  and  after  having  delivered  the  order  to  the  mate, 
received  from  him  seven  casks  of  butter  in  the  first  instance,  being  as 
much  as  the  boat  would  carry  ;  and  upon  their  return  to  the  vessel, 
during  the  night,  received  from  the  mate  the  other  six  casks.  The 
order  did  not  require  the  mate  to  deliver  any  particular  casks  ;  and  it 
appeared  by  the  evidence  of  the  mate  that  he  took  them  as  they  came 
to  hand.  The  casks  had  been  originally  stowed  in  the  hold  and  upon 
the  half-decks  as  they  came  on  board,  and  those  delivered  to  Lallow's 
men  were  taken  from  the  half-decks,  the  others  being  battened  down. 
The  seven  casks  first  delivered  by  the  mate  were  taken  to  Lallow's 
premises  and  deposited  there  ;  the  other  six  casks  were  seized  by  the 
custom-house  officers.  The  prisoner  was  at  Cowes  and  was  informed 
by  Lallow  of  the  seizure,  at  which  he  expressed  anger,  speaking  of  the 
seizure  as  a  robbery  and  of  the  casks  so  seized  as  his  own  property 
and  venture.  He  also  spoke  of  going  to  claim  his  propert}',  and  after- 
wards told  Lallow  that  he  would  give  him  an  order  to  claim  it,  as  he 
must  himself  go  away.  The  prisoner  afterwards  went  to  the  vessel 
and  passed  the  rest  of  the  night  on  board.  The  remainder  of  the 
cargo  was  delivered  at  Shoreham  and  Newhaven. 

The  protest  made  by  the  prisoner,  and  bearing  date  at  Beerhaven, 
the  20th  of  December,  1804,  purported,  among  other  things,  that 
the  prisoner  had  been  obliged  to  throw  overboard  several  casks  of 
butter ;  and  it  appeared  that  he  had  held  the  same  language  to  the 
consignees  as  his  excuse  for  delivering  short  of  their  respective 
consignments. 

Upon  this  case  the  counsel  for  the  prisoner  raised  two  objections : 
first,  that  no  larceny  had  been  committed  by  the  prisoner ;  and  sec- 
ondly, that  the  offence  was  not  capital,  —  the  larcen}^  if  any,  being  of 
goods  in  his  own  vessel. 

Lpon  the  first  objection  it  seemed  to  be  admitted  that  if  the  mate, 
by  the  order  of  the  prisoner,  had  broken  bulk  by  taking  the  casks 
from  those  which  were  battened  down,  it  might  have  been  larcenj'  in 
the  prisoner ;  and  the  learned  judge  thought,  that  as  the  casks  were 
taken  from  the  half-deck,  where  they  were  originally  stowed,  there  was 
no  material  difference.  It  was  then  contended  that  the  prisoner  went 
into  Cowes  without  any  necessity,  and  out  of  the  course  of  his  vo3'age  ; 
and  the  case  was  compared  to  those  wherein  it  had  been  held,  that  if 
goods  are  delivered  to  a  carrier  to  carry  to  a  certain  place,  and  he 


I 


REGINA   V.   POYSER. 


847 


SECT.  III.] 

carries  them  elsewhere  and  embezzles  them,  it  is  no  felony.  1  Hale, 
504,  505  ;  2  East  P.  C.  693,  695,  696.  But  the  learned  judge  thought 
that  the  severance  of  a  part  from  the  rest,  and  the  formed  design  of 
doing  so,  took  the  case  out  of  those  authorities,  if  they  could  be  con- 
sidered as  applying  to  the  present  case. 

Upon  tlie  second  objection,  those  cases  were  cited  wherein  it  had 
been  held  tliat  the  12  Anne  St.  1,  c.  7,  against  larceny  in  a  dwelling- 
house,  to  the  value  of  forty  shillings,  does  not  extend  to  a  stealing  by 
a  man  in  his  own  house  (2  East  P.  C.  644)  ;  but  the  learned  judge 
thought,  that  though  this  might  be  the  law  as  to  a  person  stealing  the 
good's  of  another  under  the  protection  of  his  own  house,  yet  the  case 
of  a  man  stealing  the  goods  of  another  laden  on  board  his  own  vessel 
was  different,  as  in  such  case  the  vessel  for  the  voyage  might  be  con^ 
sidered  as  the  vessel  of  the  freighter ;  and  that  if  the  owner  should 
take  the  command  of  the  vessel,  the  stealing  the  goods  committed 
to  his  care  would  be  an  aggravation  of  his  offence.  And  he  further 
observed  that  the  words  and  occasion  of  the  two  statutes  would  admit 
of  a  distinction. 

The  whole  case  was  therefore  left  to  the  jury,  who  found  the  pris- 
oner guilty  ;  but  the  sentence  was  respited,  in  order  that  the  opinion  of 
the  judges  miglit  be  taken. 

In  Michaelmas  term,  1805,  the  case  was  considered  by  the  judges, 
who  were  of  opinion  that  it  was  not  larceny ;  and  that  if  it  were 
larceny,  it  would  not  have  amounted  to  a  capital  offence  within  the 
statute  24  G.  II.  c.  45. 


REGINA  V.  POYSER 
Crown  Case  Reserved.     1851 


9W^v^ 


^-HjT 


[Reported  2  Denison  C.  C.  233.] 

The  prisoner  was  tried  before  Mr.  Baron  Alderson,  for  larceny,  at 
the  spring  Assizes,  a.  d.  1851,  for  the  county  of  Leicester.  It  ap- 
peared at  the  trial  that  the  prisoner  was  employed  by  the  prosecutor, 
who  was  a  tailor,  to  sell  clothes  for  him  about  the  country,  and  upon 
the  following  terms :  The  prosecutor  fixed  the  price  of  each  article, 
and  the  prisoner  was  entrusted  to  sell  them  at  that  fixed  price,  and 
when  he  had  done  so  he  was  to  bring  back  the  money  and  the  re- 
mainder of  the  clothes  unsold,  and  was  to  have  three  shillings  in  the 
pound  on  the  moneys  received  for  his  trouble.  On  the  12th  of  February 
last  he  took  away  a  parcel  of  clothes  upon  these  terms,  and  instead  of 
disposing  of  them  according  to  the  above  arrangement,  he  fraudulently 
pawned  a  portion  of  them  for  his  own  benefit,  and  having  so  done  he 
afterwards  fraudulently  appropriated  the  residue  to  his  own  use.  These 
facts  having  appeared,  the  learned  baron  directed  the  jury,  that  the 


>^ 


X 


<5 


848  EEGINA   V.    POYSER.  [CHAP.  XIT. 

original  bailment  of  the  goods  by  the  prosecutor  to  the  prisoner  was 
determined  by  his  unlawful  act  in  pawning  part  of  them,  and  that  the 
subsequent  fraudulent  appropriation  by  the  prisoner  of  the  residue  of 
the  goods  to  his  own  use  would  in  point  of  law  amount  to  larceny. 
Upon  this  direction  the  prisoner  was  found  guilty,  and  the  question 
for  this  court  was,  whether  this  direction  was  right. 

On  the  26th  of  April  this  case  was  argued  by  O'Brien,  for  the 
prisoner. 

The  contract  with  the  prisoner  was  distinct  and  separate  with  regard 
to  each  article  entrusted  to  him.  The  fact  of  his  receiving  all  the 
articles  at  one  time  was  a  mere  accident,  which  makes  no  legal  differ- 
ence in  the  case  ;  each  article  had  a  separate  price  affixed  to  it.  After 
he  had  pawned  some  of  the  articles,  when  was  the  original  bailment  of 
the  others  determined  ? 

Lord  Campbell.  The  case  states,  that  on  the  12th  of  February,  he 
took  away  a  parcel  of  clothes  ;  we  must,  therefore,  regard  the  delivery 
of  that  parcel  as  one  bailment  of  all  the  articles  contained  in  the 
parcel. 

O'Brien.  The  prisoner  had  authority  to  break  the  bulk  ;  the  con- 
tract imposed  on  him  the  necessity  of  opening  it  in  order  to  take  out 
each  article  and  deal  with  it  separately. 

Coleridge,  J.  Why  may  not  there  be  a  single  contract  embracing 
several  particulars,  as  for  instance,  where  a  carrier  is  entrusted  with 
various  articles  to  leave  at  different  places,  all  of  which  articles  are 
placed  in  one  bag ;  if  he  wrongfully  deals  with  any  one,  is  it  not  a 
breaking  bulk  of  the  whole  ? 

O'Brien.  The  doctrine  of  breaking  bulk  turns  on  there  being  no 
authority  to  open  the  parcel  and  deal  with  any  one  of  the  articles 
separate!}'  from  the  rest. 

Alderson,  B.  If  you  can  make  out  this  to  be  like  the  case  of  a 
carrier  entrusted  with  several  parcels  under  several  distinct  contracts, 
then  certainly  it  is  no  larceny. 

Lord  Campbell,  C.  J.  I  think  the  conviction  was  right.  The  case 
must  be  considered  as  though  it  was  a  single  baibnent.  If  there  had 
been  several  bailments,  then  the  wrongful  dealing  with  one  of  the 
articles  so  bailed  would  not  affect  the  case  as  to  any  other  article.  But 
it  makes  no  difference  that  in  one  parcel  there  were  several  articles. 
The  law  has  resorted  to  some  astuteness  to  get  rid  of  the  difficulties 
that  might  arise  in  the  case  of  a  wrongful  dealing  with  one  or  more  of 
several  articles,  all  of  which,  when  entrusted,  had  been  contained  in 
one  bulk. 

Alderson,  B.,  and  Platt,  B.,  concurred. 

Coleridgk,  J.  The  fact  of  different  prices  being  affixed  to  each 
article  makes  no  difference  in  the  case. 


SECT.  III.]  COMMONWEALTH   V.    JAMES.  849 


COMMONWEALTH   v.   JAMES. 
Supreme  Judicial  Court  of  Massachusetts.     1823. 

[Reported  1  Pickering,  375.] 

An  indictment  was  found  in  tliis  case  as  follows  :  ^  "  The  jurors, 
etc.,  present,  that  Noah  James,  of,  etc.,  miller,  on,  etc.,  at  Boston  afore- 
said, with  force  and  arms,  three  tons  weight  of  barilla  of  the  value,  etc., 
of  the  goods  and  chattels  of  one  Thomas  Park,  in  his  possession  then 
and  there  being,  did  then  and  there  feloniously  steal,"  etc. 

The  prisoner  was  convicted  and  sentenced  at  the  Municipal  Court 
and  he  appealed  to  this  court. 

At  the  trial  in  November  term,  1822,  before  Parker,  C.  J.,  it  was 
in  evidence  that.  Park  having  a  quantity  of  barilla  which  he  wished  to 
have  ground,  sent  it  to  a  mill  kept  by  the  prisoner  for  grinding  plaster 
of  Paris,  barilla,  and  other  articles  ;  that  after  it  was  ground,  a  mixture 
consisting  of  three-fourth  parts  of  barilla  and  one-fourth  part  of  plaster 
of  Paris  was  returned  by  the  same  truckman  who  carried  the  barilla  to 
the  mill,  he  being  on  both  occasions  in  the  employment  of  Park. 

The  prisoner's  counsel  contended,  that  it  appearing  that  the  barilla 
was  sent  to  and  brought  from  the  mill  by  a  truckman,  who  for  aught 
appearing  in  the  case  was  alive  and  within  the  reach  of  the  process  of 
the  court  at  the  time  of  trial,  without  his  testimony  there  was  no  legal 
proof  that  the  barilla  was  ever  delivered  to  the  prisoner  or  the  mixture 
received  from  him.  But  there  being  evidence  that  the  barilla  was 
ground  at  the  prisoner's  mill,  by  his  order,  he  being  sometimes  present, 
and  a  bill  of  the  expense  of  grinding  having  been  made  out  and  pre- 
sented by  liim,  and  the  money  received  by  him,  there  being  also  evi- 
dence tending  strongly  to  show  that  he  had  practised  a  fraud  upon  the 
barilla,  the  objection  was  overruled  ;  and  whether  the  mixture  was 
accidental  or  fraudulent,  and  whether  it  was  caused  by  the  prisoner  or 
not,  were  questions  left  to  the  jury  to  decide,  upon  a  great  deal  of  cir- 
cumstantial evidence,  no  person  having  seen  him  do  it,  and  the  laborer 
who  had  the  immediate  charge  of  the  grinding  having  sworn  that  no 
mixture  was  made  except  what  was  accidental. 

It  was  likewise  contended,  that  supposing  the  facts  to  be  as  the  evi- 
dence on  the  part  of  the  government  tended  to  prove  them,  the  case 
made  out  was  not  larceny  but  only  a  breach  of  trust,  or  at  most  a  fraud, 
with  which  the  prisoner  was  not  charged  in  the  indictment.  On  this 
point  the  jury  were  instructed  that  if  they  were  satisfied  from  the  evi- 
dence that  the  prisoner  had  taken  from  the  parcel  of  barilla  any  quan- 
tity with  a  view  to  convert  it  to  his  own  use,  introducing  into  the  mass 
an  article  of  inferior  value  for  the  purpose  of  concealing  the  fraud,  he 
was  guilt}'  of  larcen}'. 

1  Tlie  caption  of  the  indictment  is  omitted. 
54 


850 


COMMONWEALTH   V.    JAMES.  [CIIAP.  XII. 


The  jury  having  found  a  verdict  against  the  prisoner,  he  moved  for  a 
new  trial  on  account  of  these  directions  of  the  judge. ^ 

Putnam,  J.,  deUvered  the  opinion  of  the  court. 

To  constitute  the  crime  of  larceny,  there  must  be  a  felonious  taking 
and  carrying  away  of  the  goods  of  another.  It  is  supposed  to  be  vi  et 
armis,  invito  domino.  But  actual  violence  is  not  necessary  ;  fraud 
may  supply  the  place  of  force. 

The  jurj-  have  found  that  the  defendant  took  the  goods  with  an  intent 
to  steal  them  ;  and  the  verdict  is  well  warranted,  if  at  the  time  the 
defendant  took  them,  thej'  were  not  lawfully  in  his  possession  with  the 
consent  of  the  owner,  according  to  a  subsisting  special  contract,  in  con- 
sequence of  an  original  delivery  obtained  without  fraud.  If  that  was 
the  case,  the  inference  which  the  counsel  for  the  defendant  draw  would 
follow,  that  such  a  taking  would  not  be  felony  but  a  mere  breach  of 
trust,  for  which  a  civil  action  would  lie,  but  concerning  which  the  pub- 
lic have  no  right  to  inquire  by  indictment. 

The  counsel  for  the  defendant  have  referred  us  to  13  Ed.  IV.,  fol.  9, 
as  the  authority  upon  this  point.     The  case  was  as  follows.'^ 

I  have  been  thus  minute  in  examining  this  case,  as  it  is  referred  to  as 
the  foundation  upon  which  many  subsequent  decisions  rest.  It  will  be 
perceived  that  here  may  be  found  the  distinctions  which  are  recognized 
in  the  text  books  upon  this  subject.  Thus,  if  the  party  obtain  the 
delivery  of  the  goods  originally  without  an  intent  to  steal,  a  subsequent 
conversion  of  them  to  his  own  use  while  the  contract  subsisted  would 
not  be  felony  ;  but  if  the  original  intent  was  to  steal,  and  the  means 
used  to  obtain  the  delivery  were  merely  colorable,  a  taking  under  such 
circumstances  would  be  felony.  So  if  the  goods  were  delivered  origi- 
nally upon  a  special  contract,  which  is  determined  by  the  fraudulent 
act  of  him  to  whom  they  were  delivered,  or  by  the  completion  of  the 
contract,  a  taking  animo  furandi  afterwards  should  be  adjudged  to  be 
felon}-. 

In  the  application  of  these  general  rules  to  the  cases  which  arise,  it 
is  obvious  that  shades  of  difference,  like  the  colors  of  the  rainbow,  so 
nearly  approach  each  other  as  to  render  it  extremely  dirticnli  to  dis- 
criminate them  with  satisfactory  precision.  The  humane  rule  of  the 
law  is,  that  in  cases  of  doubt  the  inclination  should  be  in  favor  of  the 
defendant.  The  seeming,  perhaps  real,  contradictions  to  be  met  with 
in  the  English  decisions  may  have  been  influenced  by  the  desire  to  save 
human  life. 

The  case  of  Rex  v.  Channel,  2  Str.  793,  cited  for  the  defendant,  was 
an  indictment  against  a  miller  employed  to  grind  wheat,  stating  that 
lie  with  force  and  arms  unlmofidly  did  take  and  detain  part  of  it. 
The  indictment  was  held  bad  upon  demurrer.  The  reasons  assigned  in 
the  book  are,  that  there  was  no  actual  force  laid  and  that  this  was  a 

1  Argumeuts  of  counsel  aud  part  of  tlie  opinion  not  relating  to  the  question  of 
larceny,  have  been  omitted. 

2  The  learned  judge  here  stated  the  Carrier's  case,  supra. 


SECT.  III.]  COMMONWEALTH   V.    JAMES.  851 

matter  of  a  private  nature  ;  but  a  better  reason  seems  to  us  to  have 
been  that  there  was  no  averment  that  the  defendant  took  the  wheat 
feloniously. 

The  case  of  The  King  v.  Haynes,  cited  for  the  defendant  from  4  M. 
&  S.  214,  was  an  indictment  for  a  fraud  against  a  miller  for  delivering 
oatmeal  and  barley-  instead  of  wheat  which  was  sent  to  be  ground.  It 
is  not  for  a  felon}'.  The  court  tliought  no  indictable  offence  was  set 
forth.  The  question  whether  if  the  miller  had  taken  an}'  of  tlie  corn, 
which  was  sent  to  be  ground,  with  an  intent  to  steal  it,  was  not  then 
under  consideration. 

In  the  case  at  bar,  the  goods  came  lawfull}'  into  the  liands  of  the 
defendant  b}'  the  delivery  of  the  owner.  If  he  is  to  be  convicted,  it 
must  be  on  the  ground  that  he  took  the  goods  as  a  felon  after  the  spe- 
cial contract  was  determined.^ 

In  Kelyng,  35,  a  silk  throwster  had  men  to  work  in  his  own  house, 
and  delivered  silk  to  one  of  them  to  work,  and  the  workman  stole  away 
part  of  it ;  and  it  was  held  to  be  felony  notwithstanding  the  delivery. 
East,  in  his  Crown  Law,  supposes  that  if  the  silk  had  been  delivered  to 
be  carried  to  the  house  of  the  workman,  and  he  had  there  converted  a 
part  of  it  to  his  own  use,  it  could  not  have  been  felony  ;  but  that  as  it 
was  to  be  worked  up  in  the  house  of  the  owner,  it  might  be  considered 
as  never  in  fact  out  of  his  possession.  But  Keh'ng  seems  to  put  the 
case  upon  the  ground  of  the  special  contract,  "  that  the  silk  was  deliv- 
ered to  him  only  to  work,  and  so  the  entire  propert}'  remained  in  the 
owner." 

But  whatever  may  be  the  true  ground  of  decision  in  that  case,  there 
is  a  case  in  1  Roll.  Abr.  73,  pi.  16,  which  is  recognized  as  good  law  b}' 
Hawkins,  East,  and  other  writers,  which  is  very  applicable  to  the  case 
at  bar.  "  If  a  man  says  to  a  miller  who  keeps  a  corn  mill,  thou  hast 
stolen  three  pecks  of  meal,  an  action  lies  ;  for  although  the  corn  was 
delivered  to  him  to  grind,  nevertheless  if  he  steal  it,  it  is  felony,  being 
taken  from  the  rest."  Langley  v.  Bradshawe,  in  Error,  8  Car.  B.  R. 
That  decision  proceeded  upon  the  ground  of  a  determination  of  the 
privity  of  the  bailment.  Hawkins  observes  (bk.  i.  c.  33,  §  4)  that  such 
possession  of  a  part  distinct  from  the  whole  was  gained  b}'  wrong  and 
not  delivered  b}'  the  owner ;  and  also,  that  it  was  obtained  basely, 
fraudulently,  and  clandestinely. 

This  remark  is  peculiarl}'  applicable  to  the  case  at  bar ;  for  there  is 
no  evidence  that  the  owner  intended  to  divest  himself  of  his  property 
by  the  delivering  of  it  to  the  defendant.  The  defendant  did  not  pursue 
the  purpose  for  which  it  was  delivered  to  him,  but  separated  a  part  from 
the  rest,  for  his  own  use,  without  pretence  of  title  ;  and  b}'  that  act  the 
contract  was  determined.  From  thenceforward  the  legal  possession 
was  in  the  owner,  and  a  taking  of  the  part  so  fraudulently  separated 
from  the  rest,  animo  furandi,  must  be  considered  as  larceny. 

1  The  learned  judge  here  stated  the  case  of  Rex  v.  Charlewood,  2  East  P.  C.  689.  — 
Ed. 


852 


KEX  V.    SHARPLESS. 


[chap.  XII. 


SECTION  IV. 

Taking  ivith  Consent. 

(a)  What  Constitutes  Consent. 

EEX  V.   SHAEPLESS. 
Crown  Case  Reserved.     1772. 

[Reported  Leach  (ith  ed.),  92.] 

At  the  Old  Bailey  in  May  Session,  1772,  John  Sharpless  and  Samuel 
Greatrix  were  convicted  before  Mr.  Justice  Gould,  present  Mr.  Baron 
Adams,  of  steaUng  six  pair  of  silk  stockings,  the  property  of  Owen 
Hudson  ;  but  a  doubt  arising  whether  the  offence  was  not  rather  a 
fraud  than  a  felony,  the  judgment  was  respited,  and  the  question 
referred  to  the  consideration  of  the  judges  upon  the  following  case : 

On  the  14th  March,  1772,  Samuel  Greatrix,  in  the  character  of 
servant  to  John  Sharpless,  left  a  note  at  the  shop  of  Mr.  Owen 
Hudson,  a  hosier  in  Bridge  Street,  Westminster,  desiring  that  he 
would  send  an  assortment  of  silk  stockings  to  his  master's  lodgings,  at 
the  Red  Lamp  in  Queen  Square.  The  hosier  took  a  variety  of  silk 
stockings  according  to  the  direction.  Greatrix  opened  the  door  to  him, 
and  introduced  him  into  a  parlor,  where  Sharpless  was  sitting  in  a 
dressing-gown,  his  hair  just  dressed,  and  rather  more  powder  all  over 
his  face  than  there  was  any  necessity  for.  Mr.  Hudson  unfolded  his 
wares,  and  Sharpless  looked  out  three  pair  of  colored  and  three  pair 
of  white  silk  stockings,  the  price  of  which,  Mr.  Hudson  told  him,  was 
14.S.  a  pair.  Sharpless  then  desired  Hudson  to  fetch  some  silk  pieces 
for  breeches,  and  some  black  silk  stockings  with  French  clocks. 
Hudson  hung  the  six  pair  of  stockings  which  Sharpless  had  looked 
out,  on  the  back  of  a  chair,  and  went  home  for  the  other  goods  ;  but  no 
positive  agreement  had  taken  place  respecting  the  stockings.  During 
Hudson's  absence  Sharpless  and  Greatrix  decamped  with  the  six  pair 
of  stockings,  which  were  proved  to  have  been  afterwards  pawned  b\- 
Sharpless  and  one  Dunbar,  an  accomplice  in  some  other  transactions 
of  the  same  kind,  for  which  the  prisoners  were  indicted. 

The  judges  were  of  opinion  that  the  conviction  was  right ;  for  the 
whole  of  the  prisoners'  conduct  manifested  an  original  and  preconcerted 
design  to  obtain  a  tortious  possession  of  the  propertv.  The  verdict  of 
the  jury  imports  that  in  their  belief  the  evil  intention  preceded  the 
leaving  of  the  goods  ;  but,  independent  of  their  verdict,  there  does  not 
appear  a  sufficient  delivery  to  change  the  possession  of  the  property.^ 

1  Ace.  U.  S.  V.  Rodgers,  1  Mack.  419.— Ed. 


SECT.  IV.] 


REGINA   V.   EDWARDS. 


853 


REGINA   V.   LOVELL. 

Crown  Case  Reserved.     1881. 

[Reported  8  Queen's  Bench  Division,  ]  85.] 

The  following  case  was  stated  for  the  opinion  of  this  court  b}^  the 
Chairman  of  the  Worcestershire  Quarter  Sessions :  — 

The  prisoner  was  tried  before  me  at  the  last  Worcestershire  Quarter 
Sessions  on  an  indictment  which  charged  him  in  the  first  count  with 
stealing  the  sum  of  5s.  Gd.,  the  propert}'  of  Eliza  Grigg,  and  in  the 
second  count  with  demanding  with  menaces  from  the  said  Eliza  Grigg 
the  sum  of  5s.  6d.  with  intent  to  steal  the  same.  The  facts  were  these  : 
The  prisoner  was  a  traveUing  grinder.  He  ground  two  pairs  of  scis- 
sors for  the  prosecutrix,  for  which  he  charged  her  fourpence.  She  then 
handed  him  six  knives  to  grind.  He  ground  them  and  demanded 
5s.  Qd.  for  the  work.  She  refused  to  pa}'  the  amount  on  the  ground 
that  the  charge  was  excessive.  The  prisoner  then  assumed  a  menacing 
attitude,  kneeling  on  one  knee,  and  threatened  prosecutrix,  sa3ung, 
"You  had  better  pa}'  me,  or  it  will  be  worse  for  you,"  and  "  I  will 
make  you  pay."  The  prosecutrix  was  frightened  and  in  consequence 
of  her  fears  gave  the  prisoner  the  sum  demanded.  Evidence  was  given 
that  the  trade  charge  for  grinding  the  six  knives  would  be  Is.  3d 

It  was  contended  for  the  prisoner  that  as  some  money  was  due,  the 
question  rested  simply  on  a  qicantum,  meruit^  and  that  there  was  no 
larceny  or  menacing  demand  with  intent  to  steal. 

I  overruled  the  objection  and  directed  the  jury  on  the  authority  of 
Regina  v.  M'Grath,  Law  Rep.  1  C.  C.  R.  205,  that  if  the  money  was 
obtained  b}'  frightening  the  owner,  the  prisoner  was  guilt\'  of  larcen}'. 

The  jur}'  found  that  the  money  was  obtained  from  the  prosecutrix  by 
menaces  and  that  the  prisoner  was  guilt}'. 

I  I'eserved  for  the  consideration  of  this  court  the  question  whether 
upon  the  facts  stated  he  was  properly  convicted. 

Per  Curiam.  The  conviction  in  this  case  was  right.  Regina  v. 
M'Grath  is  conclusive  of  the  matter.^ 


REGINA   V.   EDWARDS 
Crown  Case 

[Reported 


^-^^^^'^^^   ^ 

:  Reserved.     1877.  ^^  ^  ^'^'^'^U.t.^?^^^  wZ^- 

13  Co.  C.  C.  384.]  ^^^^T^^J;^^ 


The  prisoners  were  tried  at  the  West  Kent  Quarter  Sessions,  held  at    ^    ^  Vv,-^^ 
Maidstone,  on  the  5th  of  Januar}',  1877,  on  an   indictment   charging    ^-  -/  y^^     ^ 

1  Ace.  Reg.?'.  MacGrath,  11  Cox  C.  C.  347;  Reg.  v.  Hazell,  11  Cox  C.  C.  597; 
State  V.  Bryant,  74  N.  C.  124.     See  U.  S.  v.  Murphy,  McA.  &  M.  375.  —Ed. 


354  EEGINA   V.   EDWA.RDS.  [CHAP.  XII. 

them  with  stealing  three  dead  pigs,  the  property  of  Sir  William  Hart 
Dyke,  Bart. 

The  evidence  was  to  the  following  effect :  The  three  pigs  in  question 
having  been  bitten  by  a  mad  dog,  Sir  William  Hart  Dyke,  to  whom 
they  belonged,  directed  his  steward  to  shoot  them.  The  steward 
thereupon  shot  them  each  through  the  head  and  ordered  a  man  named 
Paylis  to  bury  them  behind  the  barn.  The  steward  stated  that  he  had 
no  intention  of  digging  them  up  again  or  of  making  any  use  of  them. 
Paylis  buried  the  pigs,  pursuant  to  directions,  behind  the  barn  on  land 
belono-in^  to  Sir  William  Hart  Dyke,  in  a  place  where  a  brake-stack 
is  usually  placed.  The  hole  in  which  the  pigs  were  buried  was  three 
feet  or  more  deep,  and  the  soil  was  trodden  in  over  them. 

The  prisoner  Edwards  was  employed  to  help  Paylis  to  bury  the  pigs. 
Edwards  was  seen  to  be  covering  the  pigs  with  brakes,  and  in  answer 
to  Paylis's  question  why  he  did  so,  said  that  it  would  keep  the  water 
out,  and  it  was  as  well  to  bury  them  "  clean  and  decent." 

The  two  prisoners  went  the  same  evening  and  dug  up  the  pigs,  and 
took  them  to  the  railway  station,  covered  up  in  sacking,  with  a  state- 
ment that  they  were  three  sheep,  and  sent  them  off  for  sale  to  a  sales- 
man in  the  London  Meat  Market,  where  they  were  sold  for  £9  35.  9(7., 
which  was  paid  to  the  prisoners  for  them. 

The  counsel  for  the  prisoners  submitted  that  there  was  no  evidence 
in  support  of  the  charge  to  go  to  the  jury,  on  the  following  grounds : 
firstlj',  that  the  property  was  not  proved  as  laid  in  the  indictment,  as 
Sir  William  Hart  Dyke  had  abandoned  his  property  in  the  pigs ; 
secondly,  that  under  the  circumstances  the  buried  i)igs  were  of  no 
value  to  the  prosecutor ;  an  1,  thirdly,  that  under  the  circumstances 
the  buried  pigs  were  attached  to  the  soil,  and  could  not  be  the  subject 
of  larceny. 

The  Chairman,  however,  thought  that  the  case  was  one  for  the  jury, 
and  directed  them,  as  to  the  first  point,  that  in  his  opinion  there  had 
been  no  abandonment,  as  Sir  William's  intention  was  to  prevent  the 
pigs  being  made  any  use  of;  but  that  if  the  jury  were  of  opinion  that 
he  had  abandoned  the  property  they  should  acquit  the  prisoners.  He 
also  told  the  jury  that  he  thought  there  was  nothing  in  the  other  two 
objections. 

The  jur}^  found  the  prisoners  guilt}'. 

The  question  for  the  consideration  of  the  court  is  whether,  having 
reference  to  the  objections  taken  by  prisoners'  counsel,  there  was  evi- 
dence on  which  the  jur}-  were  justified  is  convicting  the  prisoners  of 
larceny. 

If  the  answer  to  this  question  be  in  the  negative,  then  the  conviction 
to  be  quashed,  otherwise,  affirmed. 

No  counsel  appeared  to  argue  on  either  side. 

By  the  Court  :  Conviction  affirmed. 


I 


SECT.  IV.]  ■    EEGINA  V.   HANDS.  855 


EEGINA  V.   HANDS. 
Crown  Case  Reserved.     1887. 

[Reported  16  Cox  C.  C.  188.] 

Case  reserved  by  the  Quarter  Sessions  for  the  Count}'  of  Gloucester 
as  follows  :  — 

Prisoners  Hands  and  Phelps  were  severally  indicted  for  that  on  the 
29th  da}'  of  November,  1886,  they  did  feloniously  steal,  take,  and  carry 
away  one  cigarette,  of  the  goods  and  chattels  of  Edward  Shenton, 
against  the  peace  of  our  said  Lady  the  Queen. 

Prisoner  Jenner  was  indicted  for  an  attempt  to  steal,  etc. 

Prisoners  Jenner  and  Phelps  pleaded  guilty. 

Prisoner  Henry  Hands  pleaded  not  guilty  and  was  given  in  charge  to 
the  jury. 

This  is  a  case  of  larceny  from  what  is  known  as  an  "  automatic  box," 
and  the  circumstances  are  as  follows  :  — 

Mr.  Edward  Shenton  is  the  lessee  of  the  Assembly  Rooms  at  Chel- 
tenham, and  has  fixed  against  the  wall  of  the  passage  leading  from  the 
High  Street  to  the  rooms  an  "  automatic  box." 

This  box  presents  the  appearance  of  a  cube  of  about  eight  or  ten 
inches,  and  in  the  upper  right-hand  corner  (facing  the  operator)  of  the 
front  face  there  is  a  horizontal  slit,  or  opening,  of  sufficient  size  to  admit 
a  penny  piece. 

In  the  centre  of  the  face  is  a  projecting  button  or  knob  about  the 
size  of  a  shilling. 

In  the  lower  left-hand  corner  is  a  horizontal  slit,  or  opening,  of  suffi- 
cient size  to  allow  of  the  exit  of  a  cigarette. 

There  is  an  inscription  on  the  face  of  the  box :  "  Only  pennies,  not 
halfpennies." 

Also  :  "To  obtain  an.Egyptain  Beauties  cigarette,  place  a  penny  in 
the  box  and  push  the  knob  as  far  as  it  will  go." 

If  these  directions  are  followed  a  cigarette  w-ill  be  ejected  from  the 
lower  slit  on  to  a  bracket  placed  to  receive  it. 

The  box  is  the  property  of  the  Automatic  Box  Company.  The  cig- 
arettes with  which  it  was  charged  belonged  to  Mr.  Shenton. 

For  some  time  past  Mr.  Shenton  has  found  on  clearing  the  box, 
which  he  did  once  or  twice  a  day,  that  a  large  number  of  metal  disks 
(brass  and  lead)  of  the  size  and  shape  of  a  penny  had  been  put  in,  and 
a  corresponding  number  of  cigarettes  had  been  taken  out. 

In  consequence  of  this  discovery  a  watch  was  set  upon  the  box,  and 
upon  the  day  named  in  the  indictment,  the  box  having  been  previously 
cleared,  two  gentlemen  were  seen  to  go  to  it ;  each  put  something  in 
and  each  took  a  cigarette  as  it  appeared. 


S56  RECINA   V.    HANDS.  [CHAP.  XII. 

The  box  was  then  examined  and  found  to  contain  one  English  penny 
and  one  French  penny.  Those  coins  were  left  in.  The  box  was  locked 
and  the  watch  was  again  set. 

Shortly  after  this,  three  lads  (afterwards  proved  to  be  the  three  pris- 
oners) were  seen  to  come  to  the  entrance  of  the  passage.  One  of  them 
came  in,  went  to  the  box,  put  something  in,  obtained  a  cigarette,  and 
then  rejoined  the  other  two  at  the  entrance.  This  was  repeated  a 
second  time.  The  third  time  it  was  observed  that  the  box  would  not 
work,  and  while  the  lad,  who  afterwards  was  found  to  be  the  prisoner 
Jenner,  was  pushing  at  the  knob  the  watchman  came  from  his  place  of 
concealment  and  put  his  hand  upon  him. 

The  box  was  then  opened  and  a  piece  of  lead  was  discovered  stuck 
in  the  "  valve,"  which  had  the  effect  of  preventing  the  machinery  of  the 
box  from  working. 

It  was  then  found  tliat  the  box  contained  (besides  the  English  and 
Fi-ench  pennies  already  mentioned)  two  disks  of  brass  about  the  size 
and  shape  of  a  penny. 

No  other  coin  or  metal  piece  was  found  in  the  box,  and  no  one  (but 
the  throe  lads  as  above  mentioned)  liad  approached  it  after  the  two 
gentlemen  who  had  put  in  the  English  and  French  pennies. 

The  prisoner  Jenner  was  given  in  charge  to  the  police,  and  the  two 
other  prisoners  were  subsequent!}-  apprehended. 

Upon  being  brought  together  at  the  police  station  the  prisoners  all 
made  statements  more  or  less  implicating  themselves  and  each  other. 

The  prisoner  Hands  said:  "Me  and  Jenner  met  Phelps  about  7.45 
p.  M.  Phelps  said  :  '  I  want  to  go  to  Dodwell's.'  I  did  not  go  and  we 
went  down  into  the  High  Street.  Phelps  and  Jenner  stopped  by  the 
Assembly  Rooms  and  went  in  ;  I  remained  outside.  I  believe  Jenner 
was  caught  at  the  box.  Mr.  Shenton's  man  took  liim  inside.  I  after- 
wards put  a  penn^'  in  the  box  and  had  a  cigarette  myself.  The  pieces 
of  brass  produced  are  cut  in  our  shop,  the  blacksmith's  shop  at  Mr. 
Marshall's." 

In  leaving  the  case  to  the  jury  the  learned  chairman  told  them  that 
they  would  have  to  consider:  First,  was  there  a  theft  committed  ;  that 
is,  was  Mr.  Shenton  unlawfully'  deprived  of  his  property  without  his 
knowledge  or  consent?  Secondl}',  if  that  were  so,  were  they  satisfied 
that  tlie  prisoner  (Hands)  took  an}'  part  in  the  robber}'?  He  also  told 
them  that  if  they  thouglit  that  the  prisoner  was  one  of  the  three  lads 
who  came  to  the  entrance  of  the  passage,  and  that  he  was  there  with  the 
others  for  the  common  purpose  of  unlawfully  taking  the  cigarettes  from 
the  box  ;  or  that  he  afterwards  partook  of  the  proceeds  of  the  robber}' ; 
or  that  he  had  taken  a  part  in  making  the  disks,  knowing  for  what 
purpose  they  were  to  be  used,  —  that  they  would  be  justified  in  find- 
ing liim  guilty  although  he  might  not  actually  have  put  the  disks  into 
the  box  or  have  taken  out  a  cigarette. 

The  jury  found  the  prisoner  (Hands)  guilty,  and  upon  motion  in  ar- 
rest of  judgment  on  the  ground  that  "  the  facts  as  disclosed  by  the  evi- 


SECT.  IV.]  MITCHUM   V,    STATE,  857 

dence  were  not  sufficient  to  constitute  a  larcen}-,"  all  the  prisoners  were 
allowed  to  stand  out  on  bail  until  the  next  Quarter  Sessions. 

The  question  for  the  court  was  whether  the  facts  as  disclosed  b}'  the 
evidence  were  suflicient  to  constitute  a  larceny. 

No  one  appeared  on  either  side. 

Lord  Coleridge,  C.  J.  In  tliis  case  a  person  was  indicted  for  com- 
mitting a  larceny  from  what  is  known  as  an  "  automatic  box,"  which 
was  so  constructed  that  if  you  put  a  penn}'  into  it  and  pushed  a  knob 
in  accordance  with  the  directions  on  the  box  a  cigarette  was  ejected  on 
to  a  bracket  and  presented  to  the  giver  of  the  penny.  Under  these 
circumstances  there  is  no  doubt  that  the  prisoners  put  in  the  box  a 
piece  of  metal  which  was  of  no  value,  but  which  produced  the  same 
effect  as  the  placing  a  penn}'  in  the  box  produced.  A  cigarette  was 
ejected,  which  the  prisoners  appropriated  ;  and  in  a  case  of  that  class 
it  appears  to  me  there  clearly  was  larcen}-.  The  means  by  which  the 
cigarette  was  made  to  come  out  of  the  box  were  fraudulent  and  the 
cigarette  so  made  to  come  out  was  appropriated.  It  is  perhaps  as  well 
to  sa}'  that  the  learned  chairman  somewhat  improperly  left  the  question 
to  the  jur}-.  He  told  them  that  if  they  thought  that  the  prisoner  Hands 
was  one  of  the  three  lads  who  came  to  the  entrance  of  the  passage  and 
that  he  was  there  with  the  others  for  the  common  purpose  of  unlawfully 
taking  the  cigarettes  from  the  box,  or  that  he  afterwards  partook  of  the 
proceeds  of  the  robbery,  they  would  be  justified  in  finding  him  guilty, 
—  he  did  not  say  larcenousl}'  or  feloniousl}' ;  and  he  further  directed 
them  that  if  the}'  thought  the  prisoner  had  taken  a  part  in  making  the 
disks,  knowing  for  what  purpose  the}'  were  to  be  used,  they  would  be 
justified  in  finding  him  guilty  although  he  might  not  actually  have  put 
the  disks  into  the  box  or  have  taken  out  a  cigarette.  Now  I  am  not 
quite  sure  that  simpl}-  the  fact  of  doing  an  unlawful  thing,  as  joining  in 
the  manufacture  of  a  disk  that  some  one  else  was  to  use,  would  make 
him  guilt}'  of  larceny.  He  miglit  be  guilty  of  something  else,  but  I 
doubt  very  much  whether  he  could  be  convicted  of  larceny.  As  upon 
the  facts  of  the  case,  however,  I  do  not  think  that  the  jury  could  have 
been  misled,  and  as  upon  the  facts  there  was  undoubtedly  a  larceny 
committed,  I  am  not  disposed  to  set  aside  the  conviction. 

Pollock,  B.,  Stephen,  Mathew,  and  Wills,  JJ.,  concurred. 

Conviction  affirmed. 


MITCHUM  V.   STATE. 
Supreme  Court  of  Alabama.     1871. 

{Reported  45  Alabama,  29.] 

Appeal  from  Circuit  Court  of  Shelby.  Tried  before  Hon.  Charles 
Pelham.  The  facts  material  to  the  point  decided  will  be  found  in  the 
opinion. 


858 


MITCHUM   V.    STATE.  [CdAP.  XII. 


Cobb  &  Lewis,  for  appellant.  The  testimony  shows  that  the 
matches  were  placed  upon  the  counter  for  the  use  of  the  public,  and 
the  accommodation  of  the  public,  that  any  and  every  person  had  the 
licrht  to  take  the  matches  without  limit,  to  light  their  pipes  and  cigars. 
The  defendant  certainly  had  the  right  to  take  the  matches  to  light  his 
pipe  or  cigar,  and  he  had  the  right  to  use  the  entire  box  in  this  way. 
The  fact  that  he  may  have  used  them  for  a  different  purpose  would  not 
make  the  taking  felonious.  There  can  be  no  larceny  where  the  owner 
consents  to  the  taking.  The  taking  must  be  without  authority  and 
against  the  will  of  the  owner.  If  the  taking  is  not  felonious,  although 
"  the  property  may  be  converted  to  an  improper  use,  yet  the  defendant 
is  not  guilty  of  larceny. 

John  W.  A.  Sanford,  Attorney  General,  contra. 
Saffold,  J.  The  defendant  was  indicted  for  petit  larceny-  On 
the  trial  the  evidence  material  to  the  exception  taken  by  him  was  that 
the  box  of  matches,  the  subject  of  the  larceny,  was  placed  on  the 
counter  of  the  store,  to  be  used  by  the  public  in  lighting  their  pipes  and 
cigars  in  the  room,  and  for  their  accommodation,  and  was  taken  there- 
from by  the  defendant.  The  court  was  requested  by  the  prisoner  to 
charge  the  jury  that  if  the  matches  were  placed  on  the  counter  of  the 
store'-house  for  the  use  of  customers,  or  the  public,  and  they  \yere 
taken  while  there  for  such  use,  the  defendant  was  not  guilty.  The 
charge  was  refused,  and  the  defendant  excepted. 

Larceny  may  be  committed  of  property  under  the  circumstances 
attached  to  the  box  of  matches.  The  owner  had  not  abandoned  his 
right  to  them.  They  could  only  be  appropriated  in  a  particular  manner 
and  in  a  very  limited  quantity  with  his  consent.  Taking  them  by  the 
boxful  without  felonious  intent  would  have  been  a  trespass,  and  with 
it,  a  larceny.     The  ownership  was  suflSciently  proved. 

The  Judgment  is  affirmed. 


SECT.  IV.]  ■       REX  V.   PEAR.  859 


SECTION  IV  (continued). 

Taking  with   Consent. 

(b)  Larceny  by  Trick. 

REX  V.  PEAR. 

Crown  Case  Reserved.     1779. 

^Reported  2  East  P.  C.  685.] 

John  Pear  was  indicted  for  stealing  a  black  mare,  the  propert}'  of 
Samuel  Finch.  On  the  2d  Jul}',  1770,  the  prisoner  hired  the  mai-e  of 
Finch,  who  lived  in  London,  for  that  dav,  in  order  to  go  to  Sutton  in 
Surre}',  and  told  him  that  he  should  return  at  eight  o'clock  the  same 
evening.  Finch,  before  he  let  the  prisoner  the  mare,  inquired  of  him 
where  he  lived,  and  whether  he  were  a  housekeeper ;  to  which  he 
answered,  that  he  lived  at  No.  25  in  King  Street,  and  was  only  a  lodger. 
The  prisoner  not  returning  as  he  had  promised,  the  prosecutor  went 
the  next  da}'  to  inquire  for  him  according  to  the  direction  he  had  given  ; 
but  no  such  person  was  to  be  found.  It  turned  out  that  the  prisoner 
had  in  the  afternoon  of  the  same  2dof  July  sold  the  mare  in  Smithfield. 
In  summing  up  this  evidence  to  the  jury,  Mr.  Justice  Ashhurst,  who 
tried  the  prisoner,  told  them  that  if  they  were  of  opinion  that  the  pris- 
oner hired  the  mare  with  an  intent  of  taking  the  journey  mentioned, 
and  afterwards  changed  that  intention,  then  as  she  was  sold  whilst  the 
privity  of  contract  subsisted,  they  ought  to  acquit  the  prisoner.  But 
if  they  were  of  opinion  that  the  journey  was  a  mere  pretence  to  get  the 
mare  into  his  possession,  and  that  lie  hired  her  with  an  intention  of 
stealing  her,  they  ought  to  find  him  guilty  :  and  he  would  save  the 
l)oint  for  the  opinion  of  the  judges.  The  jury  found  the  prisoner  guilty. 
This  case  underwent  a  great  deal  of  discussion,  and  the  judges  delivered 
their  opinion  seriatim  upon  it,  on  the  4tli  February,  1780,  at  Lord  C. 
J.  De  Grey's  house  ;  and  on  the  22d  of  the  same  month  — 

Mr.  Baron  Perryn  delivered  their  opinion  at  the  O.  B.  as  follows  :  ^ 
(After  stating  the  indictment,  evidence,  and  finding  of  the  jury  as  above 

1  Ace.  Com.  V.  Brown,  4  Mass.  580;  Nichols  v.  People,  17  N.  Y.  114.  —  Ed. 

2  This  judgmeut  was  settled  and  approved  by  several  of  the  judges  before  it  was 
delivered.     (East's  note.) 


860 


EEX   V.   PEAR.         -  [   IIAP.  XIT. 


stated.)  This  ease  has  been  maturely  considered  hy  all  the  judges, 
and  eleven  ^  of  them,  who  met  for  the  purpose,  delivered  their  opinions 
at  large  upon  the  subject :  seven  of  them  held  the  offence  to  be  a  clear 
felony  ;  two  of  them  were  of  opinion  that  it  was  not  felony  ;  and  the 
other  two  entertained  great  doubts  at  the  last-;  which  doubts  were 
founded  upon  two  statutes  which  he  should  take  notice  of.  Three  out 
of  the  four  dissenting  judges  agreed  with  the  seven,  that  by  the  princi- 
ples of  tlie  common  law  this  was  felony.  But  the  doubts  and  opinions 
of  those  four  judges  were  founded  chiefly  on  the  statutes  33  H.  8  and  30 
G.  2,  against  obtaining  goods  by  false  tokens  or  false  pretences.  Two 
of  the  judges  thought  tliat  as  the  delivery  of  the  mare  was  obtained 
from  the  owner  by  means  of  asserting  that  which  was  false,  viz.  that 
the  prisoner  wanted  to  go  a  journey  which  he  never  intended  to  take 
at  all ;  and  as  the  two  statutes  before  mentioned  had  made  the  offence 
of  obtaining  goods  by  false  tokens  or  false  pretences  punishable  as 
a  misdemeanor  only,  and  the  stat.  33  H.  8,  had  distinguished  the 
case  of  obtaining  goods  by  false  tokens  from  the  case  of  obtaining 
goods  by  stealth  ;  they  were  bound  by  those  statutes  to  a^y,  that  the 
prisoner's  offence  was  not  felon}'.  One  of  them  also  held  that  this 
was  not  felony  by  the  common  law  ;  because  there  was  no  actual  tak- 
ing of  the  mare  by  the  prisoner.  But  ten  out  of  the  eleven  judges 
held  it  to  be  clear  that  the  offence  would  have  been  felony  by  the 
common  law,  if  the  statutes  had  never  existed ;  and  seven  of  them  held 
that  it  was  not  within  or  at  all  affected  by  the  statutes  of  II.  8  or  G.  2. 
That  larceny  was  defined  b}'  Lord  Coke  to  mean  a  felonious  and  fraud- 
ulent taking  and  carrying  away  of  the  goods  of  another.  But  it  was 
settled  by  old  authorities,  that  the  taking  need  not  be  by  force.  If  a 
carrier  or  porter  received  goods  to  carry  from  one  place  to  another,  and 
he  opened  the  pack  and  sold  them,  that  was  felon}- ;  yet  in  that  case 
there  was  no  taking  by  force,  but  on  a  delivery  by  the  owner.  That 
the  reason  assigned  for  the  determination  in  Kel.  82  was  because  the 
opening  and  disposing  of  them  declared  that  his  intent  originally  was 
not  to  take  the  goods  upon  the  agreement  and  contract  of  the  party, 
but  only  with  a  design  of  stealing  them.  So  if  A.  cheapened  goods  of 
B.'s,  and  B.  delivered  them  to  A.  to  look  at,  and  A.  ran  away  with  them, 
this  was  felony  by  the  apparent  intent  of  A.  T.  Ray.  276  ;  Kel.  82.  So 
if  a  horse  were  upon  sale,  and  the  owner  let  the  thief  mount  him  in 
order  to  try  him,  and  the  thief  rode  away  with  him,  it  was  felony.  Kel. 
82.  So  in  the  case  of  one  Tunnard,  tried  at  the  O.  B.  in  October 
Sessions,  1729,  who  was  indicted  for  stealing  a  brown  mare  of  Henry 
Smith's :  and  upon  the  evidence  it  appeared,  that  Smith  lived  in  the 
Isle  of  Ely,  and  lent  Tunnard  the  mare  to  ride  three  miles  ;  but  he, 
instead  of  riding  three  miles  only,  rode  her  up  to  London  and  sold  her: 
this  was  holden  to  be  felony.     And  Lord  C.  J.  Raymond,  who  tried 

1  I\Ir.  Justice  Blackstone,  the  other  judge,  who  was  absent  on  account  of  illness, 
always  held  that  it  was  felony.     (East's  note. ) 


SECT.  IV.]  •         EEX   V.    PEAR.  861 

the  prisoner,  left  it  to  the  jury  to  consider,  Wliether  Tunnard  rode  away 
with  her  with  an  intent  to  steal  her?  and  the  jury  found  him  guilty. 
That  here  the  same  directions  were  given  to  the  jury  by  the  learned 
judge  who  tried  the  prisoner,  and  the  jury  had  given  the  same  verdict. 
That  even  in  the  case  of  burglary,  which  the  law  defined  to  be  the 
breaking  into  a  house  in  the  night  time  with  intent  to  commit  felony,  if 
a  man  procured  the  door  of  a  house  to  be  opened  by  fraud,  and  by  that 
means  entered  into  the  house  through  the  door-way  without  any  actual 
brealiing,  it  had  been  adjudged  to  be  burglary.  That  in  all  these  cases 
the  intention  was  the  thing  chiefly  regarded,  and  fraud  supplied  the 
place  of  force.  That  what  was  the  intention  was  a  fact,  which  in  ever}- 
case  must  be  left  upon  the  evidence  to  the  sound  judgment  of  a  jury. 
And  in  this  case  the  jury  had  found  that  at  the  time  when  the  prisoner 
obtained  the  possession  of  the  mare,  he  intended  to  steal  her.  That 
the  obtaining  the  possession  of  the  mare,  and  afterwards  disposing  of 
her  in  the  manner  stated,  was  in  the  construction  of  law  such  a  taking 
as  would  have  made  the  prisoner  liable  to  an  action  of  trespass  at  the 
suit  of  the  owner,  if  he  had  not  intended  to  steal  her.  For  she  was 
delivered  to  the  prisoner  for  a  special  purpose  only,  viz.  to  go  to  Sutton, 
which  he  never  intended  to  do,  but  immediately  sold  her.  That  in  this 
light  the  case  would  be  similar  to  what  was  laid  down  by  Littleton,  sect. 
-71,  who  says,  "If  I  lend  to  one  my  sheep  to  dung  his  land,  or  my 
oxen  to  plough  the  land,  and  he  killeth  my  cattle,  I  ma}'  have  trespass 
notwithstanding  the  lending."  Tliat  if  in  such  a  case  trespass  would 
have  lain,  there  could  be  no  doubt  but  that  in  this  case,  where  the 
felonious  intent  at  the  time  of  obtaining  the  possession  was  found  by 
the  jur}-,  that  it  was  felony  by  tiie  common  law.  That  ten  of  the 
judges  out  of  the  eleven,  therefore,  were  of  opinion,  that  if  a  person 
obtained  the  delivery  of  a  thing  by  fraud  and  falsehood,  intending  at 
the  time  that  he  so  obtained  the  delivery  to  steal  it ;  upon  the  principle 
of  the  common  law  and  the  adjudged  cases  which  had  been  mentioned, 
if  the  statutes  had  not  existed,  his  offence  would  be  felony.^  That  the 
next  question  was,  "Whether  this  offence  were  within  or  at  all  affected 
by  the  statutes  of  H.  8  and  G.  2.^  Seven  of  the  judges  were  of 
opinion  that  it  was  not.     That  the  stat.  of  H.  8  was  confined  to  the 

1  On  the  debate  of  tliis  case,  Ashurst,  J.,  said,  "  Wlierever  there  is  a  real  aiuUjona 
fide  contract  and  a  delivery,  and  afterwards  the  goods  are  converted  to  the  party's 
own  use,  that  is  not  felony.  But  if  there  be  no  real  and  bona  fide  contract,  if  the 
understanding  of  the  parties  be  not  the  same,  the  contract  is  a  mere  pretence,  and  the 
taking  is  a  taking  with  intent  to  commit  felony.     (East's  note.) 

2  On  the  debate  in  this  case  Eyre,  B.,  adverting  to  these  statutes,  said  he  doubted 
if  there  were  not  a  distinction  in  this  respect  between  the  owner's  parting  with  the 
possession  and  with  the  property  in  the  thing  delivered.  That  where  goods  were  de- 
livered upon  a  false  token,  and  the  owner  meant  to  part  with  the  property  absolutely 
and  never  expected  to  have  the  goods  returned  again,  it  might  be  difficult  to  reach  the 
case  otherwise  than  through  the' statutes;  aliter,  wherehe  parted  with  the  possession 
only :  for  there  if  the  possession  were  obtained  by  fraud,  and  not  taken  according  to 
the"  agreement ;  it  was  on  the  whole  a  taking  against  the  will  of  the  owner;  and  if 
done  animo  furandi,  it  was  felony.     (MS.  BuUer,  J.) 


862  REGINA  V.   BUNCE.  [CHAP.  XII. 

cases  of  obtaining  goods  in  other  men's  names,  b}^  false  tokens  or 
counterfeit  letters,  made  in  any  other  man's  name.  The  stat.  of  G. 
2  extended  that  law  to  all  cases  where  goods  were  obtained  by  false 
pretences  of  any  kind.  But  both  these  statutes  were  confined  to  cases 
where  credit  was  obtained  in  the  name  of  a  third  person  ;  and  did  not 
extend  to  cases  where  a  man,  on  his  own  account,  got  goods  wiili  an 
intention  to  steal  them.  That  besides,  the  seven  judges  held  that 
neither  of  those  statutes  were  intended  to  mitigate  the  common  law, 
or  to  make  that  a  less  offence  which  was  a  greater  before.  On  the 
contrary,  the  legislature,  by  those  statutes,  meant  to  inflict  a  severer 
punishment  in  the  cases  of  fraud  tlian  the  common  law  had  done.  That 
in  many  cases  it  was  extremely  difficult,  and  sometimes  impossible  to 
prove  what  the  oflfender's  original  intention  was.  The  circumstances 
evidencing  a  felonious  intent,  or  the  contrary,  were  so  various,  that 
Hale,  p.  509,  says  it  is  impossible  to  prescribe  them  ;  they  must  be  left 
to  the  consideration  of  a  judge  and  jur}-.  That  where  an  original 
felonious  intent  appeared,  the  statutes  did  not  apply.  Where  no  such 
intent  appeared,  if  tlie  means  mentioned  in  the  statutes  were  made  use 
of,  the  legislature  had  made  the  offender  answerable  criminally,  who 
before  by  the  common  law  of  the  land  was  only  answerable  civilly. 
That  in  the  prisoner's  case  the  intention  was  apparent,  and  the  jury 
had  rightly  found  that  it  was  felonious.  The  crime  then  was  felony, 
and  of  a  nature  which  the  statute  law  had  made  punishable  with 
death.^ 


REGIXA  V.  BUNCE. 
Oxford  Assizes.     1859. 

[Reported  I  Foster  4-  Finlason,  523.] 

The  prisoner,  a  gyps}'  woman,  surrendered  to  take  her  trial  upon  a 
charge  of  stealing  £10  ds.  id.,  and  various  articles,  the  property  of 
John  Prior,  at  AYitney,  on  the  13tli  of  January,  1859. 

It  had  been  usual,  on  this  circuit,  to  charge  offences  of  this  nature 
as  obtaining  money  by  false  pretences;  but  on  this  occasion,  in  defer- 
ence to  a  suggestion  tlirown  out  by  Crompton,  J.,  in  addressing  the  grand 
jur}',  tlie  offence  was  charged  as  one  of  larceny,  as  consisting  in  obtain- 
ing possession  of  the  goods  b}'  a  trick  or  fraud. 

R.  Sawyer  appeared  for  the  prosecution. 

Griffits  defended  the  prisoner. 

The  prisoner  was  a  gyps}'  woman  w4io  had  succeeded  in  getting  a 

1  Ace.  Kex  V.  Semple,  Leach,  691 ;  State  v.  Woodruff,  47  Kas.  151  ;  .Justices  v.  People, 
90  N.  Y.  12  ;  State  v.  Gorman,  2  N.  &  McC.  90 ;  Starkie  v.  Com..  7  Leigh,  752.  Contra 
Felter  v.  State,  9  Yerg.  397 ;  but  see  Defrese  v.  State,  3  Heisk.  53 ;  Holl  i-.  State,  6 
Baxt.  522  (statutory).  —  Ed. 


SECT.  IV.]  .   EEGINA   V.    BUNCE.  863 

large  amount  of  property  from  the  wife  of  the  prosecutor,  by  pretend- 
ing that  she  possessed  supernatural  powers  and  was  able  to  procure 
for  her  dupe  the  sum  of  £170.  On  the  12th  of  January  last,  the  pris- 
oner went  to  the  house  of  the  prosecutor  {who  was  out),  saw  his  wife, 
and  addressed  her,  saying,  "  Mrs.  Prior,  you  are  looking  very  ill.  I 
have  got  something  to  tell  you.  There  is  some  property  left  for  you 
that  you  have  been  cheated  out  of,  and,  I  can  get  it  for  you."  The 
prisoner  then  said  that  she  had  got  a  book,  and  she  could  raise  the 
spirits  and  lay  them  if  Mrs.  Prior  would  put  half  a  crown  on  a  certain 
spot  in  the  book  which  she  pointed  out.  Mrs.  Prior  said  to  tlie  pris- 
oner that  she  had  heard  of  such  things,  and  she  thought  that  spirits 
could  be  raised,  and  was  induced  to  put  some  money  in  the  book. 
The  prisoner  went  away,  and  returned  the  next  day,  and  said  she  had 
been  working  all  night,  and  that  her  husband's  money  would  not  do, 
and  she  must  have  sovereigns  ;  and  she  then  required  her  to  give  her 
all  the  money  she  had  got,  and  promised  she  would  bring  it  back  the 
next  Monday,  and  also  the  sum  of  £170,  which  she  said  belonged  to 
her.  On  these  representations,  the  wife  gave  her  all  the  money  she 
could  get,  amounting  to  £10  9s.  4(7.  Mrs.  Prior,  who  appeared  to  be 
a  very  nervous  woman,  and  afraid,  even  now,  to  look  at  the  prisoner 
in  the  dock,  said  she  was  so  frightened  at  what  the  prisoner  told  her, 
that  she  felt  she  must  go  and  get  the  money  she  wanted,  and  that  she 
let  her  have  it  because  she  believed  from  what  she  said  she  could  do 
her  good  or  evil  and  was  so  afraid  of  her.  When  Mrs.  Prior  gave  the 
prisoner  the  money,  she  required  a  shift  to  wrap  the  money  up  in,  and 
also  Mrs.  Frior's  shawl.  These  were  given  her,  on  her  promise  to 
return  them  on  the  Monday.  The  prisoner  then  wanted  a  cloth  to 
fasten  it  all  up  in,  saying  she  must  bury  it.  This  was  given,  and  also 
Mrs.  Prior's  gold  wedding-ring,  a  silver  thimble,  a  brass  ring,  and  five 
old  silver  coins,  the  prisoner  saying  she  must  have  everything  Mrs. 
Prior  had  got  that  was  valuable.  All  these  things  were  given  to  the 
prisoner  on  her  promise  to  bring  them  all  back  on  the  Monday,  to- 
gether with  the  £170,  and  to  have  a  cup  of  tea.  The  prisoner  was  to 
have  £5  for  her  trouble.  She  never  returned,  and  was  taken  into  cus- 
tody, on  the  12th  February,  with  Mrs.  Prior's  shawl  upon  her.  On  her 
cross-examination,  Mrs.  Prior  said  the  prisoner  always  came  when  her 
husband  was  out,  and  that  she  had  never  told  him  anything  about  it. 
A  friend  of  tlie  prisoner's  had  since  returned  £5  to  the  prosecutor,  and 
had  promised  £3  more. 

Griffits  submitted  that  there  was  no  case  for  the  jury. 

Channell,  B.,  after  consulting  Crompton,  J.,  ruled  that  there  was. 

Griffits  {to  the  jury)  contended  there  was  nothing  to  show  that  she 
had  got  possession  of  the  goods  with  a  felonious  intent,  but  only  with  a 
view  to  practice  her  art  as  a  witch,  in  which  the  prosecutrix,  like  many 
other  people,  was  foolish  enough  to  believe,  and  possibly  the  prisoner 
may  have  believed.  And  if  this  w-as  the  original  intention,  then, 
although  it  was  afterwards  altered,  there  would  be  no  larceny. 


864 


SMITH   V.    PEOPLE.  [CHAP.  XII. 


Channell,  B.,  to  the  jury.  It  is  for  you  to  say  whether  or  not  the 
prisoner  obtained  possession  of  the  goods  with  a  felonious  intent.  If 
the  original  intention  was  as  suggested,  there  would  be  no  larceny  ;  but 
if  it  wis  a  mere  trick  to  get  the  goods  with  no  intention  to  return  them 
it  would  be  larceny.^  Verdict  guUty. , 


SMITH   V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1873. 

{Reported  53  New  York,  111.] 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  first 
judicial  department  to  review  judgment,  atlirming  judgment  of  the 
Court  of  General  Sessions  in  and  for  the  city  and  county  of  New  York, 
entered  upon  a  verdict  convicting  plaintitf  in  error  of  the  crime  of 

grand  larceny. 

Upon  the  19th  day  of  July,  1872,  the  plaintiff  in  error  called  upon 
one  Sarah  March  and  informed  her  that  her  husband,  Charles  March, 
was  arrested  and  locked  up  on  a  charge  of  striking  a  man  over  the  head 
with  a  chair,  and  that  her  husband  had  sent  him  to  her  to  get  some 
money,  twelve  dollars,  and  unless  she  sent  it  he  would  be  locked  up  all 
night.  Not  having  any  money,  and,  upon  the  solicitation  of  the  pri- 
soner, believing  his  statement  to  be  true,  she  gave  him  a  watch,  chain, 
and  a  locket  or  cross,  and  two  dollars  in  money,  belonging  to  her  . 
husband,  wluch  property  he  was  to  pawn  and  give  the  ticket  and  money 
to  her  husband.  The  property  was  given  to  him  and  he  left.  The 
statement  of  the  prisoner  was  false.  Charles  Marcli,  the  husband, 
never  had  been  arrested,  never  sent  him  for  any  money,  and  did  not 
know  him.  The  plaintiff  in  error  appropriated  the  property  so  obtained 
to  his  own  use. 

The  court  charged  the  jury,  in  substance,  that  if  they  believed  the 
evidence  of  the  prosecution,  and  that  the  prisoner  at  the  time  of  the 
taking  had  the  felonious  intent  to  appropriate  the  property,  it  was 
larceny,  to  which  the  prisoner's  counsel  excepted.  The  jury  rendered 
a  verdict  of  guilty.^ 

William  F.  Kintzing,  for  the  plaintiff  in  error. 
Benjamin  K.  Fhelps,  for  the  defendants  in  error. 
Allen,  J.  The  accused  obtained  the  custody  of  the  chattels  and 
money  of  the  prosecutor  from  his  wife  by  a  fraudulent  device  and  trick, 
and  for  a  special  purpose,  connected  with  the  falsely  represented 
necessities  of  the  owner,  with  the  felonious  intent  to  appropriate  the 
same  to  his  own  use.     He  did  not  pawn  or  pledge  the  goods,  as  he 

1  See  Cantwell  v.  Peo.  (111.),  28  N.  E.  964.  —  Ed. 

2  Arguments  of  counsel  are  omitted. 


SECT.  IV.]  '  SMITH   V.    PEOPLE.  865 

proposed  to  do,  but  did  appropriate  the  same  to  his  own  use,  in 
pursuance  of  the  felonious  intent  with  which  he  received  them. 
This  constitutes  the  crime  of  larceny.  The  owner  did  not  part  with 
the  propert\'  in  the  chattels,  or  transfer  the  legal  possession.  The  ac- 
cused had  merely  the  custod}- ;  the  possession  -and  ownership  remain- 
ing in  the  original  proprietor.  The  proposition  is  elementary  that 
larcen}'  may  be  committed  of  goods  obtained  from  the  owner  bj- 
delivery,  if  it  be  done  animo  furandi.  Per  Cowen,  J.,  Gary  v. 
HotaiUng,  1  Hill,  311 ;  Am.  Grim.  Law,  by  Wharton,  §  1847,  et  seq.  ; 
Reg.  V.  Smith,  1  G.  &  K.  423  ;  Reg.  y.  Beaman,  1  C.  &  M.  595  ;  Reg. 
V.  Evans,  id.  632. 

The  rule  is,  that  when  the  delivery  of  goods  is  made  for  a  certain 
special  and  particular  purpose,  the  possession  is  still  supposed  to  reside, 
not  parted  with,  in  the  first  proprietor.  It  is  stated  that  if  a  watch- 
maker steal  a  watch  delivered  him  to  clean,  or  if  a  person  steals  clothes 
delivered  for  the  purpose  of  being  washed,  or  guineas  delivered  for  the 
purpose  of  being  changed  into  half  guineas,  or  a  watch  delivered  for 
the  purpose  of  being  pawned,  the  goods  have  been  thought  to  remain 
in  the  possession  of  the  proprietor,  and  the  taking  them  away  held  to 
be  a  felony.  1  Hawk.  P.  C.  33,  §  10 ;  2  Russell  on  Grimes,  22.  A 
distinction  is  made  between  a  bare  charge  or  special  use  of  the  goods, 
and  a  general  bailment;  and  it  is  not  larceny  if  the  owner  intends 
to  part  with  the  propert}',  and  deliver  the  possession  absolutely, 
although  he  has  been  induced  to  part  with  the  goods  bj-  fraudulent 
means.  If  b}-  trick  or  artifice  the  owner  of  property  is  induced  to  part 
with  the  eustod}'  or  naked  possession  to  one  who  receives  the  property 
animo  furandi^  the  owner  still  meaning  to  retain  the  right  of  propert}', 
the  taking  will  be  larcen}' ;  but  if  the  owner  part  with  not  onlv  the 
possession,  but  the  right  of  property  also,  the  oflTence  of  the  party 
obtaining  them  will  not  be  larceny,  but  that  of  obtaining  goods  by  false 
pretences.  Ross  v.  People,  5  Hill,  294;  Lewer  v.  Gommonwealth,  15 
S.  &  R.  93  ;  2  Russell  on  Grimes,  28.  Here  the  jury  have  found  the 
intent  to  steal  at  the  time  of  taking,  which  is  all  that  is  required  to 
constitute  larcen}',  where  the  mere  possession  is  obtained  by  fraud  or 
trick.  Wilson  v.  People,  39  N.  Y.  459  ;  People  v.  Call,  1  Den. 
120;  People  v.  McDonald,  43  N.  Y.  61. 

The  conviction  was  right,  and  the  judgment  must  be  affirmed. 

All  concur.  Judgment  affirmed} 

1  Ace.  Soltau  V.  Gerdau,  119  N.  Y.  380;  State  v.  McRae,  111  N.  C.  665 ;  State  v. 
Lindenthall,  5  Rich.  237. —  Ed. 


55 


866  COMMONWEALTH  V.  EUBIN.  [CHAP.  XH. 

COMMONWEALTH  v.  RUBIN. 

Supreme  Judicial  Court  of  Massachusetts.     1896. 

[Reported  165  Mass.  453.] 

Holmes,  J.  The  defendants  have  been  convicted  on  a  count  for 
larceny  of  a  horse,  the  property  and  in  the  possession  of  one  Perkins, 
in  Natick,  in  the  county  of  Middlesex.  The  question  presented  by  the 
exceptions  is  whether  the  evidence  justified  a  conviction.  The  horse 
had  been  bought  for  Perkins,  and  a  boy  had  been  engaged  by  Perkins's 
servant  to  take  it  from  the  sale  stable  in  Boston  to  Framinghain.  On 
his  way  the  boy  fell  in  with  the  defendants  driving,  and  they  took  him 
into  their  wagon.  While  driving,  they  said  they  would  deliver  the 
horse  for  him.  He  assented.  They  paid  him  what  he  was  to  receive 
from  Perkins,  and  he  left  the  horse  with  them  at  Welleslej',  in  the 
county  of  Norfolk.  The  defendants  misappropriated  the  horse  which 
afterwards  was  found  on  their  premises  at  Natick.  The  boy  was 
innocent. 

If  the  boy  had  converted  the  horse,  inasmuch  as  it  had  been  delivered 
to  him  by  a  third  person  and  iiad  not  reached  its  destination,  the  offence 
would  not  have  been  larceny  by  reason  of  the  ancient  anomaly  sanc- 
tioned by  Commonwealth  v.  King,  9  Cush.  204,  and  explained  in  Com- 
monwealth V.  Ryan,  155  Mass.  523.  But  that  is  in  consequence  of 
the  ambiguous  attitude  of  the  law  toward  his  custody,  which  prevents 
it  from  regarding  his  conversion  as  a  trespass.  There  is  no  such 
trouble  when  a  third  person  converts  the  chattel.  It  is  larceny  equally 
when  he  takes  the  thing  from  a  bailee,  from  a  servant,  or  from  the 
owner  himself.  Commonwealth  v.  O'Hara,  10  Gray,  469.  Common- 
wealth V.  Lawless,  103  Mass.  425.  Commonwealth  v.  Sullivan,  104 
Mass.  552.  Of  course  the  title  had  passed  to  Perkins,  and  for  most 
purposes  the  possession  also,  and  tliis  being  so,  either  there  is  no  ques- 
tion of  pleading  or  variance,  or  the  statute  disposes  of  it,  if  a  larceny 
is  proved.     Pub.  Sts.  c.  214,  §  14. 

But  the  horse  was  delivered  to  the  defendants,  and  the  question 
remains  whether  their  conduct  falls  under  any  recognized  exception  to 
the  requirement  of  a  taking  by  trespass.  One  such  exception  is  when 
the  possession  of  a  chattel,  but  not  the  title,  is  gained  by  a  trick  or 
fraud  with  intent  to  convert  it.  Commonwealth  v.  Barry,  124  Mass. 
325.  Commonwealth  v.  Lannan,  153  Mass.  287,  289.  It  may  be 
assumed  that  acceptance  of  a  chattel  upon  a  contract  or  promise,  with 
intent  not  to  carry  out  the  promise  but  to  convert  the  chattel,  is  within 
this  exception.  Commonwealth  i\  Barrv,  libi  supra.  2  Bish.,  Crim, 
Law,  (8th  ed.)  §  813.  So  that  the  question  is  narrowed  to  whether 
there  was  an}'  evidence  of  intent  at  the  time  when  the  defendants  re- 
ceived the  horse,  the  only  fact  bearing  upon  the  matter  being  what 


SECT.  IV.]  COMMONWEALTH   V.   RUBIN.  867 

they  did  shortly  afterwards.  This  has  been  settled,  so  far  as  precedent 
can  settle  it,  from  very  early  days,  although  the  principle  has  been 
disguised  in  an  arbitrary  seeming  form.  The  rule  that,  if  a  man  abuse 
an  authority  given  him  by  the  law,  he  becomes  a  trespasser  ab  initio, 
although  now  it  looks  like  a  rule  of  substantive  law  and  is  limited  to  a 
certain  class  of  cases,  in  its  origin  was  only  a  rule  of  evidence  by  which, 
when  such  rules  were  few  and  rude,  the  original  intent  was  presumed 
conclusively  from  the  subsequent  conduct.  It  seems  to  have  applied 
to  all  cases  where  intent  was  of  importance.  Hill,  J.,  in  Y.  B.  11  Hen. 
IV.  75,  pi.  16 ;  13  Ed.  IV.  9,  pi.  5.  The  Six  Carpenters'  case,  8  Co. 
Rep.  146  a,  b.  See  Y.  B.  9  Hen.  VI.  29,  pi.  34.  (Compare  as  to  bur- 
glary, 1  Hale  P.  C.  559,  560;  Stark.  Cr.  PI.  177;  2  East  P.  C.  509, 
510,  514.)  This  rule  was  mentioned  in  the  well  known  case  in  which 
it  was  decided  that  a  carrier  breaking  bulk  is  guilty  of  felony  :  Y.  B. 
13  Ed.  IV.  9,  pi.  5  ;  and  in  the  time  of  Charles  II.  even  was  thought 
to  explain  the  decision  there.  J.  Kel.  81,  82.  It  is  true  that  this  ex- 
planation hardly  can  be  accepted.  2  East  P.  C.  696.  It  was  repu- 
diated by  the  judges  who  decided  the  case.  But  seemingly  the  reason 
for  the  repudiation  was  that  at  that  time  the  intent  of  the  bailee  was 
supposed  to  be  always  immaterial,  and  that  as  yet,  and  indeed  as  late 
as  Lord  Coke  and  Lord  Hale,  no  exception  had  been  made  to  the  gen- 
eral rule  that  delivery  by  the  owner  prevents  a  conversion  from  being 
felony.  Y.  B.  13  Ed.  IV.  9,  pi.  5.  See  8  Co.  Rep.  146  b ;  1  Hale  P. 
C.  504  ;  Y.  B.  12  Ed.  IV.  8,  pi.  20;  21  Ed.  IV.  75,  76,  pi.  9.  Prob- 
ably the  first  suggestion  that  intent  can  be  important  when  there  is  a 
bailment  is  in  J.  Kel.  81,  82,  just  cited,  and  there  are  many  cases  in 
the  past  where  the  intent  of  the  bailee  was  open  to  question  but  was 
not  tried :  e.  g.  Raven's  case,  J.  Kel.  24  ;  Tunnard's  case,  2  East  P. 
C.  687,  694.  Since  the  law  has  changed  or  has  been  developed,  the 
carrier's  case  in  13  Ed.  IV.  9,  sometimes  has  tended  to  make  confusion. 
2  East  P.  C.  695-698,  c.  16,  §  115.  The  rule  as  to  trespass  ab  initio 
having  been  held  not  to  apply  to  bailments  when  the  intent  of  the 
bailee  made  no  difference,  still  was  not  applied  to  them  after  the  intent 
was  held  material.  In  this  way  it  became  ossified  and  took  on  the 
appearance  of  a  limited  and  technical  rule  of  a  substantive  law.  See 
Esty  V.  Wilmot,  15  Gray,  168;  Smith  v.  Pierce,  110  Mass.  35,  38. 
But  since  it  has  been  settled  that  the  intent  may  be  decisive  as  to  lar- 
ceny, the  less  extreme  and  more  rational  proposition  which  led  to  the 
technical  rule,  namely,  that  the  subsequent  conduct  is  some  evidence 
of  the  original  intent,  has  been  acted  on  frequently  in  England  by 
leaving  the  case  to  the  jury  when  the  whole  evidence  consisted  of  an 
ambiguous  receipt  and  a  subsequent  conversion.  J.  Kel.  81,  82.  Pear's 
case,  2  East  P.  C.  685,  687.  The  King  v.  Charlewood,  1  Leach  (4th 
ed.)  409  ;  S.  C.  2  East  P.  C.  689.  Leigh's  case,  2  East  P.  C.  694 ;  S. 
C.  1  Leach,  (4th  ed.)  411  note  (a).  Armstrong's  case,  1  Lewin,  195. 
Spence's  case,  1  Lewin,  197.     Rex  y.  Gilbert,  1  Moody  C.  C.  185.     The 


KEGINA   V.    MIDDLETON.  [CHAP.  XII. 

Queen  v.  Cole,  2  Cox  C.  C.  340.  See  also  Cbisser's  case,  T.  Rayra.  275, 
276,  and  2  East  P.  C.  697,  citing  2  MS.  Sum.  233.  Cases  like  those 
mentioned  in  1  Hawk.  P.  C.  Larceny,  c.  33,  §  10,  of  a  watchmaker  steal- 
inc^  a  watch  delivered  to  him  to  clean,  and  the  like,  cannot  be  explained 
on  the  ground  suggested,  that  the  possession  remains  in  the  owner, 
but  it  would  seem  must  be  accounted  for  on  the  same  ground  as  the 
last.     See  2  East  P.  C.  683,  684,  c.  16,  §  110. 

In  the  case  at  bar,  the  conversion  followed  hard  upon  the  receipt  of 
the  horse,  and  the  inference  is  not  unnatural  that  the  intent  existed 
from  the  beginning,  as  it  is  proved  to  have  existed  a  very  short  time 
afterwards.  There  is  the  less  cause  for  anxiety  upon  the  point,  in  view 
of  the  merely  technical  distinction  between  larceny  and  embezzlement. 

Of  course,  if  the  defendants  received  the  horse  with  felonious  intent 
in  Norfolk,  and  carried  it  away  into  Middlesex,  they  could  be  indicted 
in  the  latter  county.  Exceptions  overruled. 


SECTION  IV  (continued). 
Delivery  by  Mistake. 

REGINA  V.  MIDDLETON. 

Crown  Case  Reserved.     1873. 

[Reported  Law  Reports,  2  Crown  Cases  Reserved,  38.] 

Case  stated  by  the  Common  Sergeant  of  London. 

At  the  session  of  the  Central  Criminal  Court  held  on  Mondaj',  the 
23d  of  September,  1872,  George  Middleton  was  tried  for  feloniously 
stealing  certain  money  to  the  amount  of  £8  16s.  10c?.  of  the  moneys  of 
the  Postmaster-General. 

//  The  ownership  of  the  money  was  laid  in  other  counts  in  the  Queen 
and  in  the  mistress  of  the  local  post-office.  " 

It  was  proved  by  the  evidence  that  the  prisoner  was  a  depositor  in  a 
post-office  savings-bank,  in  which  a  sum  of  lis.  stood  to  bis  credit. . 


SECT.  IV.]  BEGIN  A   V.   MIDDLETON.  869 

In  accordance  with  the  practice  of  the  bank,  he  duly  gave  notice  to 
withdraw  10s.,  stating  in  such  notice  the  number  of  his  depositor's  book, 
the  name  of  the  post-office,  and  the  amount  to  be  withdrawn. 

A  warrant  for  10s.  was  duly  issued  to  the  prisoner,  and  a  letter  of 
advice  was  duly  sent  to  the  post-office  at  Notting  Hill  to  pay  the  pris-       ^ 
oner  10s.     He  presented  himself  at  that  post-office  and  handed  in  his    '^^<y}y^_i^ 
depositor's  book  and  the  warrant  to  the  clerk,  who,  instead  of  referring     Q^       -    ^^ 
to  the  proper  letter  of  advice  for  10s.,  referred  by  mistake  to  another  ^j  r~^^~^'^^*—^ 
letter  of  advice  for  £8  16s.  lOd.,  and  placed  upon  the  counter  a  £5    Sv-tT'    ^^^^-^L^t^ 
note,  three  sovereigns,  a  half-sovereign,  and  silver  and  copper,  amount-  ^  ^-  'feT^^ 

ing  altogether  to  £8  16s.  lOrf.     The  clerk  entered  the  amount  paid,  viz.,  ^^^ 

£8_16s^  lOd.  in  the  prisoner's  depositor's  book  and  stamped  it,  and  the 
prisoner  took  up  the  money  and  went  awa}'. 

The  mistake  was  afterwards  discovered,  and  the  prisoner  was  brought 
back,  and  upon  his  being  asked  for  his  depositor's  book,  said  he  had 
burnt  it.     Other  evidence  of  the  prisoner  having  had  the  money  was 


nvem 


/y  It  was  objected  by  counsel  for  the  prisoner  that  there  was  no  larceny,      «-> 
oecause  the  clerk  parted  with  the  property  and  intended  to  do  so,  and    "^^"^ 
because^the  prisoner  did  not  get  possession  b}'  an}'  fraud  or  trick.  // 

The  jury  found  that  the  prisoner  had  the  animus  furandi  at  the  mo- 
ment of  taking  the  money  from  the  counter,  and  that  he  knew  the  money 
to  be  the  rnone^-  of  the  Postmaster-General  when  he  took  it  up. 

Ajverdict  of  guilty  was  recorded,  and  the  learned  Common  Sergeant 
reserved  for  the  opinion  of  the  Court  for  Crown  Cases  Reserved  the 
question  whether  under  the  circumstances  above  disclosed  the  prisoner 
was  properly  found  guilt}'  of  larceu}'. 

Nov.  23,  1872.  The  Court  [Kelly,  C.  B.  Martin,  B.,  Brett,  Grove, 
and  Quain,  JJ.]  reserved  the  case  for  the  opinion  of  all  the  judges. 

Jan.  25,  1873.  The  case  was  argued  before  Cockburn,  C.  J.,  Bovill, 
C.  J.,  Kelly,  C.  B.,  Martin,  Bramwell,  Pigott,  and  Cleasln',  BB., 
Blackburn,  Keating,  Mellor,  Brett,  Lush,  Grove,  Quain,  Denmau,  and 
Archibald,  JJ. 

No  counsel  appeared  for  the  prisoner. 

Sir  J.  D.  Coleridge^  A.G-.  {Metcalfe  and  Slade  with  him),  for  the 
prosecution. 

The  arguments  and  the  cases  cited  sufficiently  appear  from  the 
judgments. 

Jan.  28.  Per  Curiam.  The  majority  of  the  judges  think  that  the 
com  iction  ought  to  be  affirmed,  for  reasons  to  be  stated  hereafter. 

June  /.     The  following  judgments  were  delivered  :  — 

Bovill,  C.  J.,  read  the  judgment  of  Cockburn,  C.  J.,  Blackburn, 
Mellor,  Lush,  Grove,  Denman,  and  Archibald,  JJ.,  as  follows  :  ^  — 

We  agree  that  according  to  the  decided  cases  it  is  no  felony  at  com- 
mon law  to  steal  goods  if  the  goods  were  already  lawfully  in  the  pos- 

1  Part  of  this  opinion  is  omitted. 


^^-^^ML^ 


^^■^^ 


tt. 


^>>^- 


MIDDLETON. 


[chap.  XII. 


and  that,  therefore,  at  common  law  a  bailee  of 

<^ods,  or  a  person  who  finds  goods  lost,  and  not  knowing  or  having  the 
means  of  knowing  whose  they  were,  takes  possession  of  them,  is  not 
guilty  of  larceny  if  he  subsequently,  with  full  knowledge  and  felonious 
intention,  converts  them  to  his  own  use. 

It  is,  to  say  the  least,  very  doubtful  whether  this  doctrine  is  either 
wise  or  just ;  and  the  legislature,  in  the  case  of  bailees,  have  by  statute 
enacted  that  bailees  stealing  goods,  &c.,  shall  be  guilty  of  larceny,  with- 
out reference  to  the  subtle  exceptions  engrafted  by  the  cases  on  the  old 
law.  But  in  such  a  case  as  the  present  there  is  no  statute  applicable, 
and  we  have  to  apply  the  common  law. 
yyO^ow,  we  find  that  it  has  been  often  decided  that  where  the  true  owner 
•^idl5arl""wTth~U3e^physical  possession  of  a  chattel  to  the  ^iiTsonei;,  and 
therefore  in  one  sense  the  takTng"^  ttre~"pO'ssession  was  n^t  against^his 
wttTryetTnTwas  provedlthat  the  "prisoner  from  the  beginning  had  the 
inteiiTto  steal,  and^  with  that  intent  obtained  the  possession,  U  is  suffi- 
cipnt  Tnlffng,  y^e  are  not  concerned  at  present  to  inquire  whether 
originally  the  judges  ought  to  have  introduced  a  distinction  of  this  sort, 
or  ought  to  have  left  it  to  the  legislature  to  correct  the  mischievous  nar- 
rowness of  the  common  law,  but  only  whether  this  distinction  is  not  now 
establislied,  and  we  think  it  is.  The  cases  on  the  subject  are  collected 
in  Russell  on  Crimes,  4th  ed.  vol.  2,  p.  207;  perhaps  those  that  most 
clearly  raise  the  point  are  Rex  v.  Davenport,  2  Russell  on  Crimes,  4th 
'  ed.  at  p.  201,  and  Rex  v.  Savage,  5  C.  &  P.  143,  2  Russell  on  Crimes, 

4th  ed.  at  p.  201. 
.      In  the  present  case  the  finding  of  the  jurj-,  that  the  prisoner,  at  the 
I  moment  of  taking  the  mone^',  had  the  animus  faramU  and  was  aware 
lof  the  mistake,  puts  an  end  to  all  objection  arising  from  the  fact  that 
jtlie  clerk  meant  to  part  with  the  possession  of  the  money. 

On  the  second  question,  namel}',  whether,  assuming  that  the  clerk 
was  to  be  considered  as  having  all  the  authorit}'  of  the  owner,  the  in- 
tention of  the  clerk  (such  as  it  was)  to  part  with  the  property  prevents 
this  from  being  larceny,  there  is  more  ditliculty,  and  there  is,  in  fact,  a 
serious  difference  of  opinion,  though  the  majority,  as  already  stated, 
think  the  conviction  right.  The  reasons  which  lead  us  to  this  conclu- 
sion are  as  follows :  At  common  law  the  property  in  personal  goods 
passes  by  a  bargain  and  sale  for  consideration,  or  a  gift  of  them  accom- 
panied by  delivery  ;  and  it  is  clear  from  the  very  nature  of  the  thing 
that  an  intention  to  pass  the  property  is  essential  both  to  a  sale  and  to 
a  gift.  But  it  is  not  at  all  true  that  an  intention  to  pass  the  property, 
even  though  accompanied  by  a  delivery,  is  of  itself  equivalent  to  either 
a  sale  or  a  gift.  We  will  presently  explain  more  fully  what  we  mean, 
and  how  this  is  material.  Now,  it  is  established  that  where  a  bargain 
between  the  owner  of  the  chattel  has  been  made  with  another,  by  which 
the  property  is  transferred  to  the  other,  the  property  actually  passes, 
tliough  the  bargain  has  been  induced  by  fraud.  The  law  is  thus  stated 
in  the  judgment  of  tlie  Exchequer  Chamber  in  Clough  v.  London  and 


I 


SECT.  IV.] 


KEGINA  V.   MIDDLETON. 


871 


Northwestern  Ry.  Co.,  Law  Rep.  7  Ex.  26,  at  pp.  34,  35,  where  it  is 
said,  "  We  agree  completely  with  what  is  stated  by  all  the  judges  be- 
low, that  the  property  in  the  goods  passed  from  the  London  Pianoforte 
Co.  to  Adams  by  the  contract  of  sale  ;  the  fact  that  the  contract  was 
induced  by  fraud  did  not  render  the  contract  void,  or  prevent  the  prop- 
erty from  passing,  but  merel3'  gave  the  party  defrauded  a  right,  on  dis- 
coveiing  the  fraud,  to  elect  whether  he  would  continue  to  treat  the 
contract  as  binding,  or  would  disaffirm  the  contract  and  resume  his  prop- 
ert}'.  .  .  .  We  think  that  so  long  as  he  has  made  no  election,  he  retains 
the  right  to  determine  it  either  way,  subject  to  this,  that  if  in  the  inter- 
val, whilst  he  is  deliberating,  an  innocent  third  part^-  has  acquired  an 
interest  in  the  property,  or  if,  in  consequence  of  his  delay,  the  position 
even  of  the  wrong-doer  is  affected,  it  will  preclude  him  from  exercising 
his  right  to  rescind." 

It  follows  obviously  from  this  that  no  conversion  or  dealing  with  the 
goods,  before  the  election  is  determined,  can  amount  to  a  stealing  of 
the  vendor's  goods ;  for  the}'  had  become  the  goods  of  the  purchaser, 
and  still  remained  so  when  the  supposed  act  of  theft  was  committed. 
There  are,  accordingly',  many  cases,  of  which  the  most  recent  is  Reg.  v. 
Prince,  Law  Rep.  1  C.  C.  150,  which  decide  that  in  such  a  case  the 
guilty  party  must  be  indicted  for  obtaining  the  goods  by  false  pre- 
tences, and  cannot  be  convicted  of  larceny.  In  that  case,  however, 
the  money  was  paid  to  the  holder  of  a  forged  check  payable  to  bearer, 
and  therefore  vested  in  the  holder,  subject  to  the  right  of  the  bank  to 
divest  the  property. 

In  the  present  case  the  property  still  remains  that  of  the  Postmaster- 
Ggneralj  and  never  did  vest  in  the  prisoner  at  all.  There  was  no  con- 
tract to  render  it  his  which  required  to  be  rescinded  ;  there  was  no  gift 
of  it  to  him,  for  there  wa,s  no  intention  to  give  it  to  him  or  to  any  one. 
It  was  simply  a  banding  it  over  by  a  pure  mistake,  and  no  property 
j2asse4i.  -A-s  this  was  money,  we  cannot  test  the  case  by  seeing  whether 
an  innocent  purchaser  could  have  held  the  property.  But  let  us  sup- 
pose that  a  purchaser  of  beans  goes  to  the  warehouse  of  a  merchant 
with  a  genuine  order  for  so  many  bushels  of  beans,  to  be  selected  from 
the  bulk  and  so  become  the  property  of  the  vendee,  and  that  by  some 
strange  blunder  the  merchant  delivers  to  him  an  equal  bulk  of  coffee. 
If  that  coffee  was  sold  (not  in  market  overt)  by  the  recipient  to  a  third 
person,  could  he  retain  it  against  the  merchant,  on  the  ground  that  he 
had  bought  it  from  one  who  had  the  property'  in  the  coffee,  though  sub- 
ject to  be  divested?  We  do  not  remember  any  case  in  which  such  a 
point  has  arisen,  but  surel}'  there  can  be  no  doubt  he  could  not ;  and 
that  on  the  principle  enunciated  by  Lord  Abinger,  in  Chanter  v.  Hop- 
kins, 4  M.  ife  W.  at  p.  404,  when  he  says  :  "  If  a  man  offers  to  buy  peas 
of  another,  and  he  sends  him  beans,  he  does  not  perform  his  contract, 
but  that  is  not  a  warranty ;  there  is  no  warranty  that  he  should  sell 
him  peas ;  the  contract  is  to  sell  peas,  and  if  he  sends  him  anything 
else  in  their  stead,  it  is  a  non-performance  of  it." 


REGIXA 


MIDDLETON. 


[chap.  XII. 


We  admit  that  the  case  is  undistinguishable  from  the  one  supposed 
in  the  argument,  of  a  person  handing  to  a  cabman  a  sovereign  by  mis- 
take for  a  shilling;  but  after  carefully  weighing  the  opinions  to  the 
contrary,  we  are  decidedly  of  opinion  that  the  property  in  the  sovereign 
would  not  vest  in  the  cabman,  and  that  the  question  whether  the  cab- 
man was  guilty  of  larceny  or  not.  would  depend  upon  this,  whether  he, 
at  the  time_beJonl<-  f.tip  sovereign,  was  aware  of  the  mistake  and  had 
then  the  guilty  intent^  the  animus  furancU. 

r^ut  it  is  further  urged  that  if  the  owner,  having  power  to  dispose 
of  the  property,  intended  to  part  with  it,  that  prevents  the  crime 
from  being  that  of  larceny,  though  the  intention  was  inoperative,  and 
\  no  property  passed.  In  almost  all  the  cases  on  the  subject,  the  property 
/  had  actually  passed,  or  at  least  the  court  thought  it  had  passed  ;  but 
two  cases.  Rex  v.  Adams,  2  Russell  on  Crimes,  4th  ed.  at  p.  200,  and 
^^  Rex  V.  Atkinson,  2  East  P.  C.  673,  appear  to  have  been  decided  on 
the  ground  that  an  intention  to  pass  the  property,  though  inoperative, 
and  known  by  the  prisoner  to  be  inoperative,  was  enough  to  prevent 
the  crime  from  being  that  of  larceny.  But  we  are  unable  to  perceive 
or  understand  on  what  principles  the  cases  can  be  supported  if  Rex  /'. 
Davenport,  2  Russell  on  Crimes,  4td  ed.  at  p.  201,  and  the  others  in- 
volving the  same  principle  are  law  ;  and  though  if  a  long  series  of  cases 
had  so  decided,  we  should  think  we  were  bound  by  them,  yet  we  think 
tliat  in  a  court  such  as  this,  which  is  in  elfect  a  court  of  error,  we 
ought  not  to  feel  bound  by  two  cases  which,  as  far  as  we  can  perceive, 
stand  alone,  and  seem  to  us  contrary  both  to  principle  and  justice. 

BoviLL,  C.  J.,  delivered  the  judgment  of  himself  and  Keating,  J.,  as 
follows  :  — 

tl{  The  proper  definition  of  larceny  according  to  the  law  of  England, 

•o    'fio™  tl^6  time  of  Bracton  downwards,  has  been  considered  to  be  the 

iWo      y^wrongful  or  fraudulent  taking  and  carrying  away  by  any  person  of  the 

f^y         personal  goods  of  another,  from  any  place,  without  any  color  of  right, 

r»  ffj^  with  a  felonious  intent  to  convert  them  to  the  taker's  own  use,  and 

^-^  ^       make  them  his  own  property,  without  the  consent  and  against  the  will 

of  tlie  owner^jtfAnd  the  question  for  our  consideration  is,  whether  the 

facts  of  the  present  case  bring  it  within  that  definition. 

Under  the  act  for  establishing  post-office  savings-banks,  24  &  25 
Vict.  c.  14,  deposits  are  received  at  the  post-offices  authorized  by  virtue 
of  that  act,  for  the  purpose  of  being  remitted  to  the  principal  office 
(§1).  By  §  2  the  Postmaster-General  is  to  give  an  acknowledgment 
of  such  deposits,  and  b}'  the  5th  section  all  moneys  so  deposited  with 
the  Postmaster-General  are  forthwith  to  be  paid  over  to  the  Commis- 
sioners for  the  Reduction  of  the  National  Debt.  By  the  same  section 
all  sums  withdrawn  b}'  depositors  are  to  be  repaid  out  of  those  moneys 
through  the  office  of  the  Postmaster-General.  By  §  3  the  authority  of 
the  Postmaster-General  for  such  repayment  shall  be  transmitted  to  the 
depositor,  who  is  to  be  entitled  to  repayment  at  a  post-office  within  ten 
-jdays. 


/  6   Wi^-tLcuy^--  //  ^  V  ^>-r 


SECT.  IV.] 


liEGINA   V.   MIDDLETON. 


873 


/ 


It  appears  to  us  that  the  nione3-s  received  by  the  postmasters  at 
their  respective  offices,  b}'  virtue  of  this  act,  are  the  property  of  the 
Crown  or  of  the  Postmaster-General,  and  that  neither  the  postmasters, 
nor  the  clerks  at  the  post-offices,  have  any  power  or  authority  either 
general  or  special,  to  part  with  the  property  in,  or  even  the  possession 
of,  the  moneys  so  deposited,  or  any  part  of  them,  to  any  person  except 
upon  the  special  authority  of  the  Postmaster-General. J 

In  this  case  the  prisoner  had  received  a  warrant  or  authority  from 
the  Postmaster-General,  entitling  him  to  repayment  of  10s.  (being  part 
of  a  sum  of  lis.  which  he  had  deposited)  from  the  post-offlce  at  Not- 
ting  Hill,  and  a  letter  of  advice  to  the  same  effect  was  sent  b}'  the 
Postmaster-General  to  that  post-offlce,  authorizing  the  pa3-ment  of  the 
10s.  to  the  prisoner. 

Under  these  circumstances  we  are  of  opinion  that  neither- the  clerk 
to  the  postmistress,  nor  the  postmistress  personalh',  bad  any  power  or 
autEority  to  part  with  the  £5  note,  three  sovereigns,  the  half-sovereign, 
and  silver  and  copper,  amounting  to  £8  16s.  10c?.,  which  the  clerk 
placed  upon  the  counter,  and  which  was  taken  up  b}'  the  prisoner. 

In  this  view  the  present  case  appears  to  be  undistinguishable  from 
other  cases  where  obtaining  articles  animo  furandi  fi'om  the  master  of 
a  post-office,  though  he  had  intentionall}'  delivered  them  over  to  the 
prisoner,  has  been  held  to  be  larcen}',  on  the  principle  that  the  post- 
master had  not  the  property  in  the  articles,  or  the  power  to  part  with 
the  propert}'  in  them  A.  For  instance,  the  obtaining  the  mail  bags  by 
pretending  to  be  the  mail  guard,  as  in  Rex  v.  Pearce,  2  East  P.  C. 
p.  603  ;  the  obtaining  a  watch  from  the  postmaster  b}'  pretending  to  be 
the  person  for  whom  it  was  intended,  as  in  Reg.  v.  Kay,  Dears.  &  B, 
Cr.  C.  231  ;  26  L.  J.  (M.  C.)  119  (where  Rex  v.  Pearce,  2  East  P.  C. 
p.  603,  was  relied  upon  in  the  judgment  of  the  court)  ;  and  the  obtain- 
ing letters  from  the  postmaster  under  pretence  of  being  the  servant  of 
the  party  to  whom  they  were  addressed,  as  in  Reg.  v.  Jones,  1  Den. 
Cr.  C.  188,  and  in  Reg.  v.  Gillings,  1  F.  &  F.  36,  were  all  held  to  be 
larceny. 

The  same  principle  has  been  acted  upon  in  other  cases,  where  the 
person  having  merely  the  possession  of  goods,  without  any  pflger,  to 
pa£t_with_the  property  in  them,  has  delivered  fEemtothe  prisoner, 
who  has  obtained  them_«j^^'mo/^rc)!y?c^^^;  for  instance,  such  obtaining  of 
a  parcel  from  a  carrier's  servant  by  pretending  to  be  the  person  to 
whom  it  was  directed,  as  in  Rex  v.  Longstreeth,  1  Mood.  Cr.  C.  137 ; 
or  obtaining  goods  through  the  misdelivery  of  them  by  a  carman's  ser- 
vant, through  mistake,  to  a  wrong  person,  who  appropriated  them 
animo  furandi^  as  in  Reg.  v.  Little,  10  Cox  Cr.  C.  559,  were,  in  like 
manner,  held  to  amount  to  larceny. 

In  all  these  and  other  similar  cases,  many  of  which  are  collected  in 
2  Russell  on  Crimes,  211  to  215,  the  property  was  considered  to  be 
^  taken  without  the  consent  and  against  the  will  of  the  owner,  though  the 
"^  possession  was  parted  with  by  the  voluntary  act  of  the  servant,  to 


\v 


874 


KEGINA  V.   MIDDLETON.  [CHAP.  XII. 


wliom  the  property  had  been  intrusted  for  a  special  purpose.  And 
where  property  is  so  taken  by  the  prisoner  knowingly,  with  intent 
to  deprive  the  owner  of  it  and  feloniously  to  appropriate  it  to  himself, 
he  may,  in  our  opinion,  be  properly  convicted  of  larceny. 

The  case  is  very  different  where  the  goods  are  parted  with  by  the 
owner  himself,  or  by  a  pereon  having  authority  to  act  for  him,  and 
where  he  or  such  agent  intends  to  part  with  the  property  in  the  goods ; 
for  then,  although  the  goods  be  obtained  by  fraud,  or  forgery,  or  false 
pretences,  it  is  not  a  taking  against  the  will  of  the  owner,  which  is 
necessary  in  order  to  constitute  larceny. 

The  delivery  of  goods  by  the  owner  upon  an  order  which  was  in  fact 
forged,  as  in  Reg.  v.  Adams,  1  Den.  Cr.  C.  38,  the  payment  of  money 
by  a  banker's  cashier  on  a  check  which  turned  out  to  be  a  forgery,  as 
in  Reg.  V.  Prince,  Law  Rep.  I  C.  C.  150,  and  the  delivery  up  of  pledges 
by  a  pawnbroker's  manager  by  mistake  and  through  fraud,  as  in  Rex 
V.  Jackson,  1  Mood.  Cr.  C.  119,  are  instances  of  this  kind,  and  where 
the  intent  voluntarily  to  part  with  the  property  in  the  goods,  by  a  per- 
son who  had  authority  to  part  with  the  property  in  them,  prevented  the 
offence  being  treated  as  a  larceny. 
//f.  In  the  present  case,  not  only  had  the  postmistress  or  her  clerk  no 
power  or  authority  to  part  with  the  property  in  this  money  to  the  pris- 
oner, but  the  clerk,  in  one  sense,  never  intended  to  part  with  the 
£8  16s.  lOd.  to  the  person  who  presented  an  order  for  only  IO5.,  and 
^^^^^\j^  he  placed  the  money  on  the  counter  by  mistake,  though  at  the  time  he 

- '  "^^  '    *"       (hy  mistake)  intended  that  the  prisoner  should  take  it  up,  and  by  mis- 
take entered  the  amount  in  the  prisoner's  book.A  When  the  money  was 
f^>v^  lying  upon  the  counter  the  prisoner  was  aware  that  he  was  not  entitled 

^  C^  to  it,  and  that  it  could  not  be,  and  was  not,  really  intended  for  him  ; 

T^i>^^^  yet,   with  a  full  knowledge  on  his  part  of  the  mistake,  he  took_the 

\  mfmey'nfTalTdr'carried  jt^jvay,  intending  at  the  tijupi  hp  tooIiU^r^to 

<^  ^  '  dqjrire  the  owner  of  all  property  in  it,  and^feloniouslyjai  ipi^rniiriflte  it 

to  his  own  use. 
"~There  was,  therefore,  as  it  seems  to  us,  a  wrongful  and  fraudulent 
taking  and  carrying  away  of  the  whole  of  this  money  by  the  prisoner, 
without  any  color  of  right,  animo  furandi,  and  against  the  will  of  the 
real  owner;  and  for  these"reasoTli?r~^rntl  upon^tne  autnonlies  before 
srated,  we  think  the  prisoner  was  properly  convicted  of  larceny.^ 

PiGOTT,  B.  I  agree  in  the  judgment  of  the  majority  of  the  court, 
except  that  I  do  not  adopt  the  reasons  which  are  there  assigned  for 
holding  that  the  mistaken  intention  of  the  clerk  did  not,  under  the  cir- 
cumstances here,  prevent  the  case  from  being  one  of  larceny  on  the 
part  of  the  prisoner.  I  quite  accede  to  that  proposition,  but  my  rea- 
son is  that,  in  the  view  I  take  of  the  facts,  the  intention  and  acts  of  the 
clerk  are  not  material  in  determining  the  nature  of  the  prisoner's  act 
and  intent,  because  the  transaction  between  them  stopped  short  of 

^  Kelly,  C.  B.,  delivered  an  opinion  concurring  with  that  of  Bovill,  C.  J. 


^ 

^^^ 


C^jeIaJCC>  **-''i-'a-*-<" 


SECT.  IV.]  REGINA   V.   MIDDLETOIST.  875        vy^o^Cf^^^lUiCf 

placing  the  money  completely  in  the  prisoner's  possession,  and  could  in  j^ 

uo  way  have  misled  the  prisoner.  '\^-'^^^^<^'''^^-'  - 

The  case  states  that  the  clerk  placed  the  mone}'  on  the  counter.     He        >^^ 
then  entered  the  amount  of  it  in  the  prisoner's  book  and  stamped  it.    /  ^  -  ^^"^-*-*'*-*^  -/- 
This,  no  doubt,  gave  the  prisoner  the  opportunity  of  taking  up  the  JQ.  ,     ^  CjL. 

money,  and  he  did  so  in  the  presence  of  the  clerk  ;  but  before  doing  so         ^  ^^Y"^^^^-^^^ 
he  must  have  seen  by  the  amount  that  the  clerk  was  in  error,  and  that  Ix^.  >v_c>»...><3(v_»>-Y 

the  money  could  not  really  be  intended  in  payment  of  his  order,  and     ,  y  ^^ 

therefore  was  not  for  him,  but  for  another  person.     It  was  with  full    Y''^-'^^'\^^^^--^^ 
knowledge  of  this  mistake  that  he  resolved  to  avail  himself  of  it,  and  in    ^^-«'Tr>*^^--a-'«-<'"^^ 
fact  to  steal  the  money.     The  interval  afforded  him  the  opportunity  of   fiSA>U<a^  \j-c*  UC^ 
conceiving,  and  he  did  in  fact  conceive,  the  animus  fiirandi,  while  as  r^  oajlTSC 

vet^he  had  not  got  the  money  in  his  manual  possession.  ~~ i-^^.J-fit.^'-c*-*-'*-^ 

The  dividing  line  may  appear  to  be  a  fine  one,  but  it  is,  I  think,  very 
distinct  and  well  defined  in  fact,  for  it  was  with  this  formed  intention 
in  his  mind  that  he  took  possession  of  the  mone}'.  If  complete  posses- 
sion had  been  given  by  the  clerk  to  the  prisoner,  so  that  no  act  of  the 
latter  was  required  to  complete  it  after  his  discovery  of  the  mistake  and 
his  own  formed  intention  to  steal  it,  I  should  not  feel  myself  at  liberty 
to  affirm  this  conviction.  In  that  case  the  prisoner  would  have  done  ~'-*--">-»^- 
nothing  to  defraud  the  clerk,  and  the  latter,  intending  (to  the  extent  to 
which  he  had  such  intention)  as  much  to  pass  the  property  as  the 
possession  in  the  money,  there  would  be  nothing  to  deprive  the  matter 
of  the  character  of  a  business  transaction  fully  completed. 

I  desire  to  adhere  to  the  law  as  stated  in  the  3d  Institute,  page  110 : 
"  The  intent  to  steal  must  be  before  it  cometh  to  his  hands  or  posses-  "^f  ^<-^ 
sion,  for  if  he  hath  the  possession  of  it  once  lawfully',  though  he  hath    <l-n 
animus  furandi  afterwards  and  carrieth  it  away,  it  is  no  larcenj'."  "X-^^ 
But  the  facts  satisf}'  me,  and  the  jury  have  found  upon  them,  that  the 
prisoner  had  the  animus  ^furandi  while  the  monej'  was  yet  on  the 
counter,  and  that  at  the  moment  of  taking  it  up  he  knew  the  money  to 
betlre  Postmaster-General's.    The  case  is  therefore  very  much  like  that 
of-ar  finder  who,  immediately  on  finding  it,  knows,  or  has  the  means  of 
knowing,  the  owner,  yet  determines  to  steal  it.     2  Russell  on  Crimes, 
4th  ed.  p.  169.     The  same  facts  satisf}'  the  requirements  in  the  defi- 
nition of  larcen}',  that  the  taking  must  be  invito  domi?io.     The  loser 
does  not  intend  to  be  robbed  of  his  property,  nor  did  the  clerk  in  this 
case,  and  the  prisoner's  conduct  is  unaff'ected  b}'  the  clerk's  apparent 
consent  in  ignorance  of  its  real  nature.     I  affirm  the  conviction. 

Bramwell,  B.  As  the  prisoner  has  now  undergone  his  nominal 
sentence,  I  should  think  it  better  that  the  small  minorit}'  in  this  case, 
of  whom  I  am  one,  should  give  up  their  opinions  to  the  majority,  if  the 
case  turned  on  its  own  particular  circumstances  and  no  principle  was 
involved.  But  in  my  opinion  great  and  important  principles  not  only  of 
our  law  but  of  general  jurisprudence  arise  here,  on  which  I  feel  bound 
to  state  my  views. 

It  is  a  good  rule  in  criminal  jurisprudence  not  to  multiply  crimes,  to 


^ 


876 


KEGINA   V.    MIDDLETON. 


[chap.  XII. 


make  as  few  matters  as  possible  the  subject  of  the  criminal  law,  and 
to  trust  as  much  as  can  be  to  the  operation  of  the  civil  law,  for  the  pre- 
vention and  remedy  of  wrongs.  It  is  also  a  good  rule  not  to  make 
that  a  crime  which  is  the  act,  or  partly  the  act,  of  the  party  complain- 
ino-.  Volenti  non  Jit  injuria  :  As  far  as  he  is  willing,  let  it  be  no 
crfme.  Here  the  taking  was  consented  to.  This  is  undoubtedly  a  rule 
of  the  English  common  law.  Obtaining  goods  by  false  pretences  was 
no  offence  at  common  law.  Ordinary  cheating  was  not.  Embezzle- 
ment, &c.,  by  servants  was  not  larcenous.  Breaches  of  trust  by  trus- 
tees and  bailees  were  not.  So  also  fraudulently  simulating  the  husband 
of  a  married  woman,  and  having  connection  with  her,  was  not.  And 
most  particularly  was  and  is  this  the  case  in  larceny,  for  the  definition 
of  it  is  that  the  taking  must  be  invito  domino. 

Whether  this  law  is  good  or  bad  is  not  the  question.  We  are  to 
administer  it  as  it  is.  I  think  those  statutes  that  have  made  offences 
of  such  matters  as  I  have  mentioned  improved  the  law,  because  the 
business  of  life  cannot  be  carried  on  without  trusting  to  representations 
that  we  cannot  verify,  and  without  trusting  goods  to  others  in  such  a 
way  that  the  owner  loses  all  power  of  watching  over  them  ;  and  it  is 
reasonable  that  the  law  should  protect  persons  who  do  so,  by  making 
criminals  of  those  who  abuse  that  confidence.  But  something  was  to 
be  said  in  favor  of  the  old  law,  viz.,  that  the  opportunity  for  the  crime 
was  afforded  by  the  complainant.  Further,  there  is  certainly  a  differ- 
ence between  the  privy  taking  of  property  without  the  knowledge  of 
the  owner,  or  its  forcible  taking,  and  its  taking  witli  consent  by  means 
of  a  fraud.  The  latter,  perhaps,  may  properly  be  made  a  crime ;  but 
it  is  a  different  crime  from  the  other  taking. 

I  say,  then,  that  on  principles  of  general  jurisprudence,  on  the  gen- 
eral principles  of  our  law,  and  on  the  particular  definition  of  larcen}',  the 
taking  must  be  invito  domino.  That  does  not  mean  contrary  to  or 
against  his  will,  but  without  it.  All  he  need  be  is  r??vitus.  This 
accounts  for  how  it  is  that  a  finder  of  a  chattel  nia^'  be  guilty  of  lar- 
ceny. The  dominus  is  invitus.  So  in  the  case  of  a  servant  who  steals 
his  master's  property.  There  are  certain  cases  apparently  inconsistent 
with  this,  but  which  are  brought  within  the  rule  indeed,  but  by  reason- 
ing which  ought  to  have  no  place  in  criminal  law.  I  mean  such  cases 
as  where  a  carrier  broke  bulk  and  stole  the  contents  or  part,  and  was 
guilty  of  larceny,  but  would  not  have  been  had  he  taken  the  whole 
package,  and  cases  where  possession  was  fraudulentlv  obtained,  animo 
farandi,  from  the  owner,  who  did  not  intend  to  part  with  the  property*. 
In  such  cases  it  has  been  held  that  the  breach  of  trust  by  the  carrier 
in  breaking  bulk  re-vested  the  possession  in  the  owner ;  and  in  the 
other  case  the  obtaining  of  possession  was  a  fraud,  and  so  null ;  and 
that  therefore  in  such  cases  the  possession  reverted  to  or  remained  in 
the  true  owner,  and  so  there  was  a  taking  invito  domino.  So  also 
cases  where  the  custod}'  is  given  to  the  alleged  thief,  but  not  pos- 
session or  propertj',  as  when  the  price  ^  a  chattel  delivered  is  to  be 


SECT.  IV.J 


EEGINA   V.   MIDDLETON. 


877 


paid  in  ready  money.  Reg.  v. 'Cohen,  2  Den.  Cr.  C.  249.  These  are 
not  exceptions  to  the  rule,  but  are  brought  within  it  by  artificial,  tech- 
nical, and  unreal  reasoning.  But  where  the  dominus  has  voluntarily 
parted  with  the  possession,  intending  to  part  with  the  property  in  the 
chattel,  it  has  never  yet  been  held  that  larcen}"  was  committed,  what- 
ever fraud  may  have  been  used  to  induce  him  to  do  so,  nor  whatever 
may  be  the  mistake  he  committed  ;  because  in  such  case  the  dominus  is 
not  invitus.  So  also  where  the  possession  has  been  parted  with  in  such 
way  as  to  give  the  bailee  a  special  property.  See  2  Russell  on  Crimes, 
4th  ed.  p.  191,  citing  2  East  P.  C.  p.  682  ;  Reg.  v.  Smith,  2  Russell  on 
Crimes,  4th  ed.  p.  191 ;  Reg.  v.  Goodbody,  8  C.  &  P.  665.  It  is  not 
necessary  that  the  property  should  pass,  the  intent  it  should  is  enough. 
See  Rex"v.  Coleman,  2  East  P.  C.  672. 

But  it  is  argued  that  here  there  was  no  intent  to  part  with  the  prop- 
erty', because  the  post-office  clerk  never  intended  to  give  to  Middleton 
what  did  not  belong  to  him.  A  fallac}^  is  involved  in  this  way  of 
stating  the  matter.  No  doubt  the  clerk  did  not  intend  to  do  an  act  of 
the  sort  described  and  give  to  Middleton  what  did  not  belong  to  him, 
yet  he  intended  to  do  the  act  he  did.  What  he  did  he  did  not  do 
involuntarily  nor  accidentally,  but  on  purpose.  See  what  would  follow 
from  such  reasoning.  A.  intends  to  kill  B. ;  mistaking  C.  for  B.,  he 
shoots  at  C.  and  kills  him.  According  to  the  argument,  he  is  not 
guilty  of  intentional  murder ;  not  of  B.,  for  he  has  not  killed  him  ;  not 
of  C,  for  he  did  not  intend  to  kill  him.  There  is  authority  of  a  very 
cogent  kind  against  this  argument.  A  man  in  the  dark  gets  into  bed 
to  a  woman,  who,  erroneously  believing  him  to  be  her  husband,  lets  him 
have  connection  with  her.  This  is  no  rape,  because  it  is  not  without  her 
consent,  j'et  she  did  not  intend  that  a  man  not  her  husband  should 
have  connection  with  her.  I  have  noticed  this  above  as  another  illus- 
tration of  how  the  common  law  refuses  to  punish  an  act  committed 
with  the  consent  of  the  complainant. 

To  proceed  with  the  present  matter :  If  the  reasoning  as  to  not 
intending  to  give  this  money  is  correct,  then,  as  it  is  certain  that  the 
post-office  clerk  did  not  intend  to  give  Middleton  10s.,  it  follows  that 
he  intended  to  give  him  nothing.  That  cannot  be.  In  truth,  he  in- 
tended to  give  him  what  he  gave,  because  he  made  the  mistake.  This 
matter  may  be  tested  in  this  way :  A.  tells  B.  he  has  ordered  a  wine 
merchant  to  give  B.  a  dozen  of  wine  ;  B.  goes  to  the  wine  merchant, 
bond  fide  receives,  and  drinks  a  dozen  of  wine.  After  it  is  consumed 
the  wine  merchant  discovers  he  gave  B.  the  wrong  dozen,  and  demands 
it  of  B.,  who,  having  consumed  it,  cannot  return  it.  It  is  clear  the 
wine  merchant  can  maintain  no  action  against  B.,  as  B.  could  plead 
the  wine  merchant's  leave  and  license.  But  it  is  said  that  if  B.  knew 
of  the  mistake,  and  took  the  wine  animo  furandi^  then  he  would  have 
taken  it  invito  domino  ;  so  that  whether  the  dominus  is  invitus  or  not 
depends,  not  on  the  state  of  his  own  mind,  but  of  that  of  B. 

It  is  impossible  to  say  that  there  was  a  taking  here  sufficient  to  con* 


878 


REGINA   V.   MIDDLETON. 


[chap.  XII. 


'Ss^ 


^ 


^-^S- 


stitute  larceny  because  the  money  was  picked  up,  but  that  if  it  had 
been  put  in  the  prisoner's  hand  there  was  not  such  a  taking. 

But  for  the  point,  then,  I  am  about  to  mention,  I  submit  the  domi- 
nus  was  not  invitus,  that  he  consented  to  the  taking,  and  that  it  was 
partly  his  act.  No  doubt  the  prisoner  was  a  dishonest  man,  maybe 
what  he  did  ought  to  be  made  criminal,  but  his  act  was  different  from 
a  privy  or  forcible  taking ;  he  was  led  into  temptation  ;  the  prosecutor 
had  very  much  himself  to  blame,  and  I  certainly  think  that  Middleton, 
if  punished,  should  be  so  on  different  considerations  from  those  which 
should  govern  the  punishment  of  a  larcenous  thief. 

But  a  point  is  made  for  the  prosecution  on  which  I  confess  I  have 
had  the  greatest  doubt.     It  is  said  that  here  the  dominus  was  invitus  ; 
that  the  dominus  was  not  the  post-offlce  clerk,  but  the  Postmaster- 
General  or  the  Queen  ;  and  that  therefore  it  was  an  unauthorized  act 
in  the  post-office  clerk,  and  so  a  trespass  in  Middleton  invito  domino. 
I  think  one  answer  to  this  is,  that  the  post-offlce  clerk  had  authority  to 
decide  under  what  circumstances  he  would  part  with  the  money  with 
which  he  was  intrusted.     But  I  also  think  that,  for  the  purposes  of 
this  question,  the  lawful  possessor  of  the  chattel,  having  authority  to 
transfer  the  property,  must  be  considered  as  the  dominus  witliin  this 
rule,  at  least  when  acting  bond  fide.     It  is  unreasonable  that  a  man 
should  be  a  thief  or  not,  not  according  to  his  act  and  intention,  but 
according  to  a  matter  which  has  nothing  to  do  with  them,  and  of  which 
^      he  has  no  knowledge- 
According^  to^this^  if  I  give  a  cabman  a  sovereign  for  a  shilling  by 
.  y      mistalcerhetaking  \\ranimo  furandi.,  it  is  no  larceny  \~hnt  if  1  tell  mv 
>3       servant  to  ta1ce  a  "shilling  gut  of^  my  purse^_aDd_he  by  mi.stake  takes^a 
L^       sovereign,  and  gives  it  to  the  cabman,  who  takesjt  animo  furandi^ 
^       Ore^atTTinnriTTrgHer^^rTsTu^icrdu^  that  if  a  man,  instead  of 

o^  himself  paying,  tells  his  wife  to  do  so,  and  she  gives  the  sovereign  for 
a  shilUng,  the  cabman  is  guilty  of  larceny,  but  not  if  the  husband  gives 
it.     It  is  said  that  there  is  no  great  harm  in  this  ;  that  a  thief  in  mind 
and  act  has  blundered  into  a  crime.     I  cannot  agree.     I  think  the 
criminal  law  ought  to  be  reasonable  and  intelligible.     Certainly  a  man 
who  had  to  be  hung  owing  to  this  distinction  might  well  complain,  and 
it  is  to  be  remembered  that  we  must  hold  that  to  be  law  now  which 
•would  have  been  law  when  such  a  felony  was  capital.     Besides,  juries 
are  not  infallible,  and  may  make  a  mistake  as  to  the  animus  furandi^ 
and  so  find  a  man  guilty  of  larceny  when  there  was  no  theft  and  no 
animus  fur andi.     Moreover,  Reg.  v.  Prince,  Law  Rep.  1  C.  C.  150,  is 
contrary  to  this  argument,  for  there  the  banker's  clerks  had  no  author- 
-Ts^ity  to  pay  a  forged  check  if   they  knew  it;    they  had  authority  to 
(>^  ^      make  a  mistake,  and  so  had  the  post-office  clerk.    And  suppose  in  this 
"^'^      case  the  taking  had  been  bond  fide,  —  suppose  Middleton  could  neither 
^^  write  nor  read,  and  some  one  had  made  him  a  present  of  the  book 
without  telling  him  the  amount,  and  he  had  thought  the  right  sum  was 
given  him,  —  would  his  taking  of  it  have  been  a  trespass?    I  think 


SECT.  IV.]  KEGINA   V.   MIDDLETON.  879 

not,-  and  that  a  demand  would  have  been  necessary  before  an  action 
of  conversion  could  be  maintained.^ 

Cleasby,  B.^  The  cases  establish  that,  where  there  is  a  complete 
dealing  or  transaction  between  the  parties  for  the  purpose  of  passing 
the  property,  and  so  the  possession  parted  with,  there  is  no  taking, 
and  the  case  is  out  of  the  category-  of  larceny. 

I  believe  the  rule  is  as  I  have  stated,  and  that  it  is  not  limited  to 
cases  in  which  the  property  in  the  chattel  actually  passes  by  virtue  of 
the  transaction.  I  have  not  seen  that  limitation  put  upon  it  in  any  text- 
book on  the  criminal  law,  and  there  are,  unless  I  am  mistaken,  many 
authorities  against  it.  The  cases  show,  no  doubt,  beyond  question  that 
where  the  transaction  is  of  such  a  nature  that  the  property  in  the  chat- 
tel actually  passes  (though  subject  to  be  resumed  by  reason  of  fraud 
or  trick),  there  is  no  taking,  and  therefore  no  larceny.  But  they  do 
not  show  the  converse,  viz.,  that  when  the  property  does  not  pass 
there  is  larceny.  On  the  contrary,  they  appear  to  me  to  show  that 
where  there  is  an  intention  to  part  with  the  property  along  with  the 
possession,  though  the  fraud  is  of  such  a  nature  as  to  prevent  that 
intention  from  operating,  there  is  still  no  larceny.  This  seems  so 
clearly  to  follow  from  the  cardinal  rule  that  there  must  be  a  taking 
against  the  will  of  the  owner,  that  the  cases  rather  assume  that  the 
intention  to  transfer  the  property  governs  the  case  than  expressly 
decide  it.  For  how  can  there  be  a  taking  against  the  will  of  the 
owner  where  the  owner  hands  over  the  possession,  intending  by  doing 
so  to  part  with  the  entire  property  ? 

As  far  as  my  own  experience  goes,  many  of  the  cases  of  fraudulent 
pretences  which  I  have  tried  have  been  cases  in  which  the  prisoner  has 
obtained  goods  from  a  tradesman  upon  the  false  pretence  that  he 
came  with  the  order  from  a  customer.  In  these  cases  no  property 
passes  either  to  the  customer  or  to  the  prisoner,  and  I  never  heard 
such  a  case  put  forward  as  a  case  of  larceny.  And  the  authorities  are 
distinct,  upon  cases  reserved  for  the  judges,  that  in  such  cases  there 
is  no  larceny.  In  Reg.  v.  Adams,  1  Den.  Cr.  C.  38,  the  prisoner  was 
indicted  for  stealing  a  quantity  of  bacon  and  hams,  and  it  appeared 
that  he  went  to  the  shop  of  one  Aston,  and  said  he  came  from  Mr. 
Parker  for  some  hams  and  bacon,  and  produced  the  following  note, 
purporting  to  be  signed  by  Parker :  — 

Have  the  goodness  to  give  the  bearer  ten  good  thick  sides  of 
bacon,  and  four  good,  showy  hams,  at  the  lowest  price.  I  shall  be  in 
town  on  Thursday  next,  and  will  come  and  pay  you. 

Yours  respectfully,  T.  Parker. 

Aston,  believing  the  note  to  be  the  genuine  note  of  Parker  (who 
occasionally  dealt  with  him),  delivered  the  articles  to  Adams.     The 

1  The  remainder  of  the  opinion  is  omitted.     Martin  and  Cleasby,  BB.,  and 
Brett,  J  ,  delivered  concurring  opiniona. 
*  Part  only  of  the  opinion  is  given. 


880  WOLFSTEIN   V.   PEOPLE.  [CHAP.  XII. 

jury  convicted,  but  upon  a  case  reserved,  upon  the  question  whether 
the  ofifence  was  larceny,  the  judges  were  all  of  opinion  that  the  con- 
viction was  wrong.  Rex  v.  Coleman,  2  East  P.  C.  p.  672,  is  to  the 
same  effect.  In  that  case  the  prisoner  got  some  silver  as  change, 
falsely  pretending  to  come  from  a  neighbor  for  it ;  and  it  was  held  not 
to  be  a  case  of  larceny.  Rex  v.  Atkinson,  2  East  P.  C.  p.  673,  wag 
a  similar  one,  and  the  prisoner  was  convicted ;  but  on  a  reference  to 
the  judges  after  conviction,  all  present  held  that  it  was  no  felony,  on 
the  ground  that  the  property  was  intended  to  pass  by  the  delivery 
of  the  owner. 

I  do  not  think  a  man  ought  to  be  exposed  to  a  charge  of  felony 
upon  a  transaction  of  this  description,  which  is  altogether  founded 
upon  an  unexpected  blunder  of  the  clerk.  The  prisoner  was  undoubt- 
edly at  the  office  for  an  honest  purpose,  and  finds  a  larger  sura  of 
money  than  he  demanded  paid  over  to  him  and  charged  against  him. 
A  man  may  order  and  pay  for  certain  goods,  and  by  mistake,  a  larger 
quantity  than  was  paid  for  may  be  put  in  the  package  and  he  may 
take  them  away.  Or  he  may  pay  in  excess  for  that  which  is  ordered 
and  delivered.  Is  the  person  receiving  to  be  put  in  the  peril  of  a  con- 
viction for  felony  in  all  such  cases,  upon  the  conclusion  which  may  be 
arrived  at  as  to  whether  he  knew,  or  had  the  means  of  knowing,  and 
had  the  animus  fur  andif  I  think  not;  I  think  such  cases  are  out  of 
the  area  of  felony,  and  therefore  the  animus  furandi  is  inapplicable, 
and  ought  not  to  be  left  to  the  jury.  And  any  conclusion,  founded 
upon  the  finding  of  the  jury  upon  a  question  which  ought  not  to  be 
left  to  them  must  be  erroneous,  because  the  foundation  is  naught.  I 
think  the  conviction  was  against  law  and  ought  to  be  quashed. 

Conviction  affirmed} 


WOLFSTEIN   V.   PEOPLE. 
Supreme  Court  of  New  York.     1875. 

[Reported  &  Hun,  121.] 

Writ  of  error  to  the  Court  of  General  Sessions  for  the  city  and 
county  of  New  York,  to  review  the  conviction,  of  the  plaintiff  in  error, 
of  the  crime  of  grand  larceny. 

Charles  W.  Isrooke,  for  the  plaintiff  in  error. 

Benjamin  K.  Phelps,  for  the  defendants  in  error. 

Westbrook,  J.  The  plaintiff  in  error  having  been  convicted  in  the 
Court  of  General  Sessions  of  the  city  and  county  of  New  York  during 
the  month  of  April,  1875,  of  the  crime  of  grand  larceny,  has,  by  wril 
of  error,  brought  the  proceedings  into  this  court  for  review. 

1  But  see  Com.  v.  Hays,  14  Gray,  62.  — Ed. 


if 


SECT.  IV."]  WOLFSTEIN   V.    PEOPLE.  881 

By  the  evidence  given  upon  the  trial  and  the  verdict  of  the  jury,  the 
foUowing  facts  were  estabUshed  :  The  prisoner  was  the  possessor  of  a 
dra ft ,_ dated  February  loth,  1875,  di'awn  payable  to  his  order  by  one  L. 
Boell,  on  Heidelbach,  Frank,  «fe  Co.,  for  the  sum  of  seventy-four  dollars 
in  gold.  It  was  accepted  by  the  parties  upon  whom  it  was  drawn,  on 
the  9th  day  of  March,  1875,  and  made  payable  on  demand  at  the 
German  American  Bank.  On  the  day  of  its  acceptance  it  was  presented^ 
by  the  accused  at  the  bank  for  payment,  and  the  pavino^  teller,  wlio  was^ 
unable  to  read  the  French  language  Tiiwhich  it  was  writteivTand  who  /^  <=)  .  « 
read  the  figures  upon  the  draft  as  $742,  paid  to  the  ~pi'l§6ner  that  sum  '  <^  ^ 
^f-mone^n'gold.  The  party  to  whom  the  money  was  paid,  knowings 
that  he^as  entitled  to  receive  only  seventy-four  dollars,  took  the  larger 
sum  ($742)  tlius  paid  to  him  by  mistake,  and,  without  disclosing  the 
error,  concealed  and  denied  the  over-pajmeut,  and  feloniously  appro- 
priated it  to  his  own  use. 

The  case  then  presents  this  question  :  If  a  party  who  receives  from^ 
another  money  to  which  he  knows  he  is  not  entitled,  and  which  he 
knows_JiaA-.lbeen_paid  to  him  by  mistake,  should  conceal  such  over- 
pa^'ment  and  appropriate  the  mone^'  to  his  own  use,  intending  thus  to 
cheat  and  defraud  the  ownerJli£u:eQjlji;muid  he  or  not  be  guilty  of  the 
crime  of  larceny  ?  If  it  be  answered  that  he  would  not,  can  the  ele- 
ment needed  to  make  it  such,  and  which  is  absent,  be  pointed  out? 
The  money,  in  excess  of  that  which  he  is  entitled  to  receive,  is  taken 
without  the  owner's  consent,  and  that  which  is  thus  taken  is  appropri- 
ated to  the  taker's  use  with  intent,  fraudulently,  to  deprive  the  owner 
thereof.  These  two  elements  make  the  crime  of  theft,  and  they  are 
both  present  here. 

It  will  not  do  to  say  that  the  owner  parts  with  the  property  volun- 
tarily, and  therefore  there  is  no  unlawful  taking.  There  may  be  the 
physical  act  of  the  owner  handing  that  which  is  his  to  another,  but 
there  is  absent  the  intellectual  and  intelligent  assent  to  the  transfer, 
upon  which  the  consent  must  necessarily  depend.  Where  money  or 
property  is  obtained  from  the  owner  by  another  upon  some  false  pre- 
tence, for  a  temporary  use  only,  with  the  intent  to  feloniously  appro- 
priate it  permanently,  the  taking,  though  with  the  owner's  consent, 
is  larceny.  Wherein  do  the  cases  differ?  In  both  there  is  a  physical 
delivery  by  the  owner,  and  in  both  the  taker  knows  that  it  was  given 
for  no  such  purpose  as  he  has  in  mind,  and  j-et  he,  unlawfully  and 
wickedly,  in  both  cases,  seeks  to  deprive  the  owner  thereof.  If  the  one 
case  is  larceny,  the  other  is  also. 

So,  too,  the  finder  of  m-opertv,  if  he  knows  the  owner  and  conceals 
such  finding,  and  appropriates  it  to  his  own  use,  with  mtent  to  deprive 
ttte'^wner  thereof,  is  guilty  of  larceny. /|^o  in  this  case,  if  the  prisoner 
fgOTTd,  on  counting  the  money,  that  irTliis  ])^session  to  which  heknew 
he~was~not  entitled,  and  which  he  also  knew  the  owner  did  not  intend 
to  clelTver  to  him,  he  was  bound  to^eturn  it  to  the  owner,  and  if  he  did 
not7~T)ut~concealed  its  possession  and  sought  to  deprive  the  owner 
ttrefeof,  the  crime  was  complete. 
^  56 


882 


WOLFSTEIN   V.    PEOPLE. 


[chap,  xil 


From  the  evidence  in  this  case,  and  the  verdict  rendered,  we  are 
bound  to  assume  that  the  mistake  was  noticed  and  discovered  by  the 
prisoner  at  some  time.  If  f^hp  nvpr-pnvment  was  observed  in  the  bank 
when  the  money  was  delivered,  and  the  prisoner  took  it  with  the  intent 
to  cliear  and  deTraud  the  owncr,Jhe_crime  was  then  complete.  If,  how- 
ermTtfie~eiToFwas~no^rtEeirnotrced,  but  was  afterward,  and  the  intent 
of  felonious  appropriation  was  then  formed  and  executed,  the  legal 
guilt  of  the  prisoner  was  at  that  time  incurred.  As  in  the  case  of  the 
finder  of  the  lost  article,  the  original  taking  may  be  lawful,  but  legal 
accountability  as  for  crime  begins  when  the  owner  is  discovered  and 
the  intent  formed  unlawfully  and  feloniously  to  deprive  him  of  the 
possession  thereof. 

The  questions  which  the  case  involves,  and  the  points  to  be  found  by 
the  jury  before  a  verdict  of  guilty  could  be  rendered,  were  properly  stated 
by  the  recorder,  and  the  finding  was  well  warranted  by  the  testimony. 

The  i-equest  to  charge,  made  by  the  counsel  of  the  prisoner  at  folio 
eighty-two,  was  amended,  and  as  amended  was  charged.  There  is  no 
error  here.     The  conviction  of  the  prisoner  is  therefore  affirmed. 

Davis,  P.  J.,  and  Daniels,  J.,  concurred.* 

Conviction  affirmed. 

1  See  Com.  v.  Eiclielberger,  119  Pa,  254.  —  Ed. 


\^ 


SECT.  IV.J  EEGINA   V.    LITTLE.  883 


EEGINA  V.   LITTLE. 

Central  Criminal  Court.     1867. 

[Reported  10  Cox  C.  C.  559.] 

George  Cohen  Little  and  William  Eustace  were  charged  with 
stealing  276  yards  of  carpet,  the  property  of  the  Midland  Railway 
Company, 

Three  bales  of  carpet  were  entrusted  to  Froome,  a  carman  in  the 
service  of  the  Midland  Railway  Company,  for  delivery  to  Easteu  & 
Co.,  Addle  Street.  From  something  Froome  heard  in  Addle  Street  he 
went  to  7  Philip  Lane,  which  leads  out  of  Addle  Street.  There  was.no 
name  lip  at  No.^7,  but  it  appeared  as  if  it  had  been  newlv  done  up. 
At  No.  7  Froome  saw  the  prisoner  Little  and  asked  him  whether  that 
was  Easten's  of  Addle  Street.  Little  said,  "Yes."  Froome  told  him 
he  had  three  trusses  of  carpet,  and  showed  him  the  way-bill,  which  indi- 
cated that  three  bales  marked  E.  959-61  were  to  be  delivered  to  Fas- 
ten &  Co.  of  Addle  Street.  Little  told  him  to  bring  them  in,  and  they 
were  brought  in  and  signed  for  by  "  T.  C.  Little."  Eustace  appeared 
to  have  rented  the  premises  on  which  the  goods  were  left,  and  became 
acquainted  with  the  fact  of  their  being  in  his  house  shortly  after  they 
were  so  left,  and  according  to  his  own  account  had  sold  them  to  a  man 
from  whom  he  had  received  no  monej',  although  by  his  own  statements 
to  a  witness  he  had  said  they  had  been  left  at  this  place  in  mistake,  and 
did  not  belong  to  him. 

Sleigh,  on  behalf  of  Eustace,  submitted  that  there  was  no  case  of 
larceny  made  out,  —  the  Railway  Company,  in  whom  the  property-  was 
laid,  having  parted  not  only  with  the  possession,  but  also  with  the  prop- 
erty in  the  goods,  and  no  trick  having  been  shown  to  have  been  used 
1)}'  Eustace  in  order  to  get  possession  of  them. 

■Poland  contended  that  the  Railway  Compan}',  having  authorily_to 
eliver  to  Fasten  &  Co.,  had  no  power  to  part  with  thfijn-opeyt.y  in-tlip. 
gDudsTo  any  other  parties;  that  the  mistake  ot"TEe~carman  in  leaving 
ttrem  al  the  wrong  premises  did  not  deprive  the"company  of  their  prop- 
ert^Tii  them  ^  and  that  the  subsequent  cojijersion  of  them  by  Eustace 
to'his  own  purposes  was  in  fact  a  larceny  of  the  goods  of  the  company, 
just  as  much  as  if  he  had  taken  them  out  of  the  cart  hiraselfv^>^ 

Besley,  on  the  same  side,  argued  that  as  the  goods  came  into  the 
possession  of  Little,  he  by  accepting  possession  of  them  might  be 
deemed  a  bailee  for  the  owner,  and  that  directly  Eustace  became  ac- 
quainted with  the  circumstances  and  co-operated  with  him  he  was  acces- 
sary with  him  as  bailee  ;  and  then  if,  contrary  to  that  bailment,  they 
jointly  converted  the  goods  to  their  own  purposes,  a  case  of  larceny 
would  be  established.   He  referred  to  Regina  v.  Robson,  9  Cox  C.  C.  29. 

The  Recorder  said  he  should  leave  the  case  to  the  jury,  not  upon 
the  ground  that  the  prisoners  were  bailees,  but  that  the  property  in  the 


884  EEX  V.   MOOKE.  [CHAP.  XIL 

goods  had  not  been  parted  with/'yThe  earmiin  had  the  limited  author- 
itj'  to  part  with  them  to  Easten  &  Co.  only,  and  by  leaving  them  in 
mistake  the  property  was  not  reall}'  parted  with.  -^ 


SECTION  V. 


\\ 


t 


\ 


^. 


^ 


M 


y 


0^\ 


Transfer   of   Title. 

REX  V.   MOORE. 
Crown  Cask  Reserved.     1784. 

'^1^''    V    ^      N"*  [Reported  Leach  {4th  €d.),3li.] 

r^  This  was  a  ease  reserved  for  the  opinion  of  the  twelve  judges  b}-  Mr. 
Sergeant  Adair,  Recorder,  at  the  Old  Bailey,  in  April  Session,  1784, 
upon  the  trial  of  an  indictment  for  stealing  twenty  guineas,  and  four 
pieces  of  forejaa,  gfil^Zeoin  called  doubloons,  the'property  of  John 
Field,  in  the  dwelling-house  of  John  Brown. 

The  material  circumstances  of  this  case,  as  they  appeared  in  evidence, 
were  as  follow :  The  prosecutor,  John  Field,  a  soldier,  just  returned 
from  the  war  in  America,  was  walking  along  James  Street,  Covent 
Garden,  when  a  stranger  joined  company  with  him.  As  they  walked  in 
friendly  conversation  with  each  other  down  Long  Acre,  the  stranger  sud- 
denly stopped  and  picked  up  a  purse  which  was  lying  at  a  door.  After 
they  had  proceeded  about  forty  yards,  "  Come,"  says  the  stranger,  "  we 
will  go  and  drink  a  pot  of  porter,  and  see  what  we  have  picked  up." 
The  prosecutor  was  persuaded  to  comply  ;  and  they  accordingly  wont 
into  a  private  room  in  an  adjacent  public  house,  where  the  stranger 
pulled  out  the  purse,  and  from  one  end  of  it  produced  a  receipt,  signed 
"W.Smith,"  for  £210  "for  one  brilliant  diamond-cluster  ring,"  and 
from  the  other  end  he  pulled  out  the  ring  itself.  A  conversation 
ensued  upon  the  subject  of  their  good  fortune,  during  which  time  the 
prisoner,  Humphrey  Moore,  entered  the  room  ;  and  being  shewed  the 
ring,  he  praised  the  beauty  of  its  lustre,  and  offered  to  settle  the  divi- 
sion of  its  value.  Upon  the  stranger's  lamenting  that  he  had  no  money 
about  him,  tlie  prisoner  asked  the  prosecutor  if  he  had  any.  The  prose- 
cutor replied  that  he  had  forty  or  fifty  pounds  at  home.  "That  sum 
will  just  do,"'  said  the  prisoner.  A  coach  was  immediately  called,  and 
all  three  were  driven  to  the  prosecutor's  lodgings  at  Chelsea.  The 
prosecutor  and  the  stranger  went  into  the  house  together,  leaving  the 
prisoner  at  the  Five  Fields.  The  prosecutor  took  his  money  from  his 
bureau,  put  it  into  his  pocket,  and  returned  with  the  stranger  to  a 
public  house  in  the  Five  Fields,  Chelsea,  kept  by  John  Brown,  where 
they  again  met  the  prisoner,  who  said,  "  I  will  give  you  your  share  of 
the  ring,  if  you  will  be  content  till  to-morrow."  The  prosecutor  put 
down  twenty  guineas  and  four  doubloons,  which  the  stranger  took  up, 


.vvi^^ 


SECT,  v.]  REX   V.   MOORE.  885 

and  in  return  gave  the  prosecutor  the  ring,  desiring  that  he  would 
meet  him  at  the  same  place  on  the  next  moniing  at  nine  o'clock,  and 
promising  that  he  would  then  return  the  twenty  guineas  and  the  four 
doubloons  to  the  prosecutor,  and  also  one  hundred  guineas  for  his  share 
of  the  ring.  The  prisoner  and  the  stranger  went  away  together.  The 
prosecutor  attended  the  next  morning  pursuant  to  the  appointment, 
but  neither  of  the  parties  came.     The  ring  was  of  a  very  trilling  value. 

It  was  left  with  the  jury  to  consider  whether  the  prisoner  and  the 
other  man  were  not  confederated  together,  for  the  purpose  of  obtaining 
money  on  pretence  of  sharing  the  value  of  the  ring,  and  whether  he 
had  not  aided  and  assisted  the  other  man  to  obtain  the  mone}-  b}-  tlie 
means  that  were  used  for  that  purpose.  And  the  jur}-  were  of  opinion 
that  the  prisoner  was  confederating  with  the  person  unknown  for  the 
purpose  of  obtaining  the  money  by  means  of  the  ring,  and  did  therefore 
aid  and  assist  the  person  unknown  in  obtaining  the  twenty  guineas  and 
the  four  doubloons  from  the  prosecutor.  They  accordingly  found  him 
guilty  of  stealing,  but  not  in  the  dwelling-house,  subject  to  the  opinion 
of  the  twelve  judges  whether  it  was  felony. 

On  the  first  day  of  Michaelmas  Terra,  1784,  all  the  judges,  except 
Lord  Mansfield,  assembled  at  Lord  Loughborough's  chambers  to  con- 
sult upon  this  case  ;  and  in  the  December  Session  following,  Mr.  Jus- 
tice WiLLES  delivered  their  opinion  at  the  Old  Bailey  to  the  following 
effect :  all  the  judges  agreed  that  in  considering  the  nature  of  larceny' 
it  was  necessary  to  attend  to  the  distinction  between  the  parting 
with  the  possession  only,  and  the  parting  with  the  property  ;  that  in 
the  first  case  it  is  felon}',  and  in  the  last  case  it  is  not.  Upon  the  cir- 
cumstances of  the  present  case  two  of  the  judges  ^  were  of  opinion 
that  the  doubloons  were  to  be  considered  as  money,  and  that  the  whole 
was  a  loan  on  the  security  of  the  ring,  which  the  prosecutor  believed  to 
be  of  much  greater  value  than  the  money  he  advanced  on  it,  and  there- 
fore that  he  had  voluntaril}'  parted  with  the  property  as  well  as  with 
tiie  possession  of  the  doubloons// But  nine  of  the  judges  were  clearly 
of  opinion  that  it  was  felony,  for  ihfey  thought  the  twenty  guineas  and 
the  four  doubloons  were  deposited  in  the  nature  of  a  pledge  till  the  half 
of  the  supposed  value  of  the  ring  was  paid  to  the  prosecutor,  and  not  as 
a  loan  ;  and  therefore  he  had  parted  with  the  possession  only,  and  not 
with  the  property,  —  more  especially  as  to  the  doubloons,  which  he 
clearly  understood  were  to  be  returned  the  next  day  in  specie  ;  and  they 
could  not  distinguish  this  case  from  The  King  v.  Patch  in  this  court  in 
February  Session,  1782,  and  the  King  v.  Pear,  in  September  Session, 
1779./y^rhe  majority  of  the  judges,  therefore,  were  of  opinion  that 
this  case  had  been  properly-  left  to  the  jury,  and  that  the  prisoner  waa 
guilty  of  felony. 

The  prisoner  was  accordingly  transported. 

1  Lord  Loughborough,  and  Skinner,  C.  B. 


8S6        rt^  REGINA  V.    PRINCE.  [cHAP.  XII. 

^^^Jvy  REX  V.   ATKINSON. 

Crown  Case  Reserved.     1799. 

[Reported  2  East  P.  C.  673.] 

James  "Williaji  Atkinson  was  indicted  foi-  stealing  two  bank-notes, 
the  property  of  William  Duun,  ao;ainst  the  statute.  It  appeared  that 
the  prisoner  sent  one  Dale  (to  whom  he  was  unknown)  with  a  letter 
directed  to  Dunn.;  bidding  Dale  to  tell  Dunn  that  he  brought  the 
letter  from  Mr.  Broad,  and  to  bring  the  answer  to  him  (the  prisoner) 
in  the  next  street,  where  he  would  wait  for  him.  Dale  accordingly 
carried  to  Dunn  the  letter,  which  was  wn'itten  in  the  name  of  Broad, 
a  friend  of  Dunn's,  soliciting  the  loan  of  £3  for  a  few  days,  and 
^desiring  that  the  money  might  be  inclosed  back  in  the  letter  imme- 
/diately.  Dunn  thereupon  sent  the  bank-notes  in  question,  inclosed  in 
a  letter  directed  to  Broad,  and  delivered  the  same  to  Dale,  who  deliv- 
ei'ed  them  to  the  prisoner  as  he  was  first  ordered.  The  letter  turned 
out  to  be  an  imposition.  r/^It  was  objected  at  the  trial  that  this  was  no 
felony,^  because  the  absolute  dominion  of  the  property  was  parted 
with  by  the  owner,  though  induced  thereto  by  means  of  a  f^lsp.  and 
fraudulent, pretence. fcJAnd  on  reference  to  the  judges  after  conviction, 
all  present  held  that  it  was  no  felony,  on  the  ground  that  the  property' 
was  intended  to  pass  by  thejifiiixfiry  of  the  owner ;  and  that  this  case 
came  within  the  Stat.  33  H.  8.  c.  1,  against  false  tokens,  which  partic- 
ularly speaks  of  counterfeit  letters.^  // 


REGINA   V.   PRINCE. 

Crown  Case  Reserved.     1868. 

[Reported  Law  Reports  1  Croum  Cases  Reserved,  150.] 

The  following  case  was  stated  by  the  Common  Sergeant :  — 
The  prisoner  was  tried  before  me  at  the  August  session  of  the  Cen- 
tral Criminal  Court  on  an  indictment  charging  him^in  the  first  count, 
with  stealing  money  to  the  amount  of  £100,  the  propertv  of  Henrv 
Allen  ;  in  the  second  count,  with  receiving  the  same,  knowing  it  to 
have  been  stolen ;  and  in  two  other  counts  the  ownership  of  the  money 
was  laid  in  the  London  and  Westminster  Bank. 

It  appeared  in  evidence  that  the  prosecutor,  Henry  Allen,  had  paid 
moneys  amounting  to  £900  into  the  London  and  Westminster  Bank 
on  a  deposit  account  in  his  name,  and  on  the  27th  of  April,  1868,  that 

1  Ace.  Rex  V.  Colman,  Leach  (4th  ed.)  303  n. ;  Kelly  r.  People,  6  Hun,  509  ; 
Kellogg  V.  State,  26  Oh.  St.  15.    See  Reg.  v.  Middleton,  L."  R.  2  C.  C.  38,  ante.  —  Ed. 


SECT,  v.]  EEGINA   IK  PRINCE.  8S7 

sum  was  standing  to  his  credit  at  that  bank.  On  that  day  the  wife  of 
Henry  Allen  presented  at  the  bank  a  forged  "oTdei  piii  porting  to  be 
the  order  of  the  said  Henry  Allen,  for  payment  of  the  deposit,  and  the 
cashier  at  the  bank,  believing  the  authority  to  be  genuine,  paid  to 
her  the  deposit  and  interest  in  eight  banknotes  of  £100  each,  and  other 
notes.  Among  the  notes  of  £100  was  one  numbered  72,799,  dated  the 
19th  of  November,  1867.  ~ 

On  the  first  of  July,  18G8,  the  wife  of  Henry  Allen  left  him  and 
his  house,  and  she  and  the  prisoner  were  shortly  afterwards  found  on 
board  a  steamboat  at  Queenstown  on  its  way  from  Liverpool  to  New 
York,  passing  as  Mr.  and  Mrs.  Prince,  Mrs.  Allen  then  having  in  her 
possession  nearly  all  the  remainder  of  the  notes  obtained  from  the 
bank.  The  note  for  £IQQ^No^J2^799,  was  proved  to  have  been  paid 
away  by  the  prisoner  in  payment  for  some  sheep  in  May,  1868,  and 
he  said  he  had  it  from  Mrs.  Allen. 

Upon  this  evidence  it  was  objected  by  prisoner's  counsel  that  the 
counts  alleging  the  property  to  b^^njlenry  Allen  must  fail,  as  the  note 
had  never  been  in  his  possession  ;  and  tbaTas  to  the  other  counts  the 
evidencedid_not  show  anv_^larceny  of  the  note  from  the  bank  by  the 
'  wTre7"5urT^ie7ljrobtaIn^  by  forgery  or  false  pretences  by  her,_aud^ 
that  the  recefpt  by  the_jirign»or  from  her  was  not  a  receipt  of  stolen 
property:.//  I  held,  however,  that  the  forged  order  presented  by  the  ^ifeU 
was  undef  the  circumstances  a  mere  mode  of  committing  a  larcen3|^) 
against  the  London  and  Westminster  Bank,  and  that  the  prisoner  was 
liable  to  be  convicted  on  the  fourth  count. 

The  jury  found  the  prisoner  guilty  on  that  count  and  I  respited  judg- 
ment and"  reserved  for  the  consideration  of  the  court  the  question 
whether  the  obtaining  the  note  from  the  bank  by  Mrs.  Allen  under  the 
circumstances  stated  was  a  larceny  by  her ;  if  not,  the  conviction  must 

be  reversed.^      Cxf^v:;^>^^^~''^'^  - 

BoviLL,  C.  J.  I  am  of  opinion  that  this  conviction  cannot  be  sus- 
tained. The  distinction  between  larceny  and  false  pretences  is  mate- 
rial.    In  larceny  the  taking  must  be  against  the  will  of  the  owner.     That 


is  of  the  essence  of  the  offence.  The  cases  cited  Dy  Mr.  uollins  on  be- 
half of  the  prisoner  are  clear  and  distinct  upon  this  point,  showing  that 
theobtaining:  of  property  from  its  owner  or  his  servant  absolutely  au- 
thorized to  deal  with  it  by  false  pretences  will  not  amount  to  larceny. 
The  cases  cited  on  the  other  side  are  cases  where  the  servant  had  only 
a  limited  authority  from  his  master.  Here,  however,  it  seems  to  me 
that  the  bank  clerk  had  a  general  authority  to  part  with  both  the  prop- 
erty  in  and~possession  of  bis  master's  tnOne}'  bn  receiving  what  he  be- 
iievecTtoTe  a  genuine  order,  and  that  as  he  did  so  part  with  both  the 
property  in  and  possession  of  the  nole  in  question  the  offence  commit- 
ted by  Mrs.  Allen_fel]sjvithin  the~cases  which  make  it  a  false  pretence 
and  noFa" larceny,  and  therefore  the  prisoner  cannot  be  uunvicledi:)! 
knowingly  receiving  a  stolen  note. 

1  Arguments  of  counsel  are  omitted. 


ggg  EEGINA   V.   PRINCE.  [CHAP.  XII. 

Channell,  B.  I  am  of  tbe  same  opinion.  Tlie  cases  cited  on  one 
side  and  tlie  other  are  distinguisliable  on  the  ground  that  in  one  class 
of  cases  the  servant  had  a  general  authority  to  deal  with  his  master's 
property,  and  in  the  other  class  merely  a  special  or  limited  authority. 
If  the  bank  clerk  here  had  received  a  genuine  order  he  would  have  paid 
the  money  for  his  master  and  parted  with  the  property,  and  the  trans- 
action would  have  really  been  what  it  puri>orted  to  be.  If,  however, 
the  clerk  makes  a  mistake  as  to  the  genuineness  of  a  signature,  never- 
tlieless  he  has  authority  to  decide  that  point ;  and  if  he  pays  money  on 
a  forged  order  the  property  therein  passes  from  the  master  and  cannot 
be  said  to  have  been  stolen.  ^ 

Btles,  J.  I  am  of  the  same  opinion.  I  would  merely  say  that  I 
ground  my  judgment  purely  pn  authority. 

Blackburn,  J.     I  also  am  of  the  same  opinion.     I  must  say  I  can- 
not but  lament  that  the  law  now  stands  as  it  does.     'rhe__distinction 
drawn  between  larceny  and  false  pretences  —  ojiejjejng  maxU-a-feteny 
ami  the  other  a  misdemeanor,  and  yet_thelsaiii<^  pmii^hment  attached 
to'^ach  —  seem^to  me,  I  must  confess,  unmeaning  and  mischievous. 
The  distinction  arose  in  former  times,  and  I  take  it  that  it  was  then  held 
ill  favor  of  Ufejhat  in  larceny  the  taking  must  be  against  th/Aill  of  the 
owner,  jarceny  then  being  a  capital  offence,  i  However,  as  the  law  now 
stands,  if  the  owner  intended  the  property  to  pass,  though  he  would  not 
so  have  in'ten'ded  hadlie  known  the  real  facts,  that  is  sufficient  tojji-e- 
vent  the  offence  of  obtaining  another's  property  from_amouiitiiig  to 
Tarcerivj_and  where  the  servant  has_an_authority"ca^equal  with  his 
master's  and  parts  with  his  master's_property^such  property  cannotjje 
sard"Ton)r~§tgteTrtnMm"''^'^   aslEeservant  intends  to  part  with  the 
propeit^i-iiLit-     ^U  however,  the  servant's  authority  is  limited,  then  he 
can  only  part  with  the  possession,  and  not  with  the  property ;  if  he  is 
tricked  out  of  the  possession  the  offence  so  committed  will  be  larceny. 
In  Regina  v.  Longstreeth,  1  Moody,  C.  C.  137,  the  carrier's  servant  had 
no  authority  to  part  with  the  goods  except  to  the  right  consignee.     His 
authority  was  not  generally  to  act  in  his  master's  business,  but  limited 
in  that  way.     The  offence  was  in  that  case  held  to  be  larceny  on  that 
ground,  and  this  distinguishes  it  from  the  pawnbroker's  case  Regina  v. 
Jackson,  JL  Moody  C.   C.  119,  which  the  same  judges,  or  at  any  rate 
some  of  them,  had  shortly  before  decided.     There  the  servant  from 
whom  the  goods  were  obtained  had  a  general  authority  to  act  for  his 
master,   and  the  person  who  obtained  the  goods  was  held  not  to  be 
guilty  of  larceny.     So  in  the  present  case  the  cashjer  holdsJhejDoney 
of  the  bank  with  a  general  auiMnty_ft:om^tlie-baDl^to_deaLJEith^ 
He  has  authorityjo  part  with  it  on  receiving  what  he  believes  to  be  a 
genuine_ofHerr70fthe  genuineness  he  is  the  judge ;  and  if  under  a 
niislake  he   parts  with  money  he  none  the  less  intends  to  part  with 
the  property  in  it,  and  tJKisJiie^offenceJsjiotLa^cc^^^^ 
larceny^but  an  obtaining  by  false  pretences.     The  distinction  is  in- 
scrutable to  my  mind,  but  it  exists  in  the  cases.     There  is  no  statute 


SECT,  v.]  REGINA   V.    BUCKMASTER.  889 

enabling  a  count  for  larcen}-  to  be  joined  with  one  for  false  pretences  ; 
and  as  the  prisoner  was  indicted  for  the  felony  the  conviction  must, be 
quasEedl 

Lush,  J.  I  also  agree  that  the  conviction  must  be  quashed.  I 
ground  ra}'  judgment  on  the  distinction  between  the  cases  which  has 
been  pointed  out.  Tlie  cashier  is  placed  in  the  bank  for  the  very  pur- 
pose of  parting  with  the  monev  of  the  bank.  He  has  a  general  autiior- 
rtyto  act  for  the_bank,  aiKHhere  fore  that  whichjie  does,  his  masters  the 
bankers  do  tliemselves  through  him.  Conviction  'quashMF' 


•V- 


:.^ 


REGINA   V.   BUCKMASTER. 
Crown  Case  Reserved.     1887^. 

[Reported  16  Cox  C.  C.  339.] 

This  was  a  case  stated  for  the  opinion  of  the  Court  by  the  Chair- 
man of  the  Court  of  Quarter  Sessions  for  the  County  of  Berks,  which 
was  as  follows  :  — 

1.  At  the  General  Quarter  Sessions  for  the  County  of  Berks,  held  on 
the  27th  day  of  June,  1887,  Walter  Buckmaster  was  tried  before  me 
upon  an  indictment,  omitting  formal  parts,  which  charged  that  he 
did  on  the  9th  day  of  June,  1887,  feloniously  steal,  take,  and  carry 
away  certain  money  o^the  moneys  of  John  Ry.mer. 

2.  It  was  proved  that  the  prisoner  and  another  man,  at  about  3  p.  m. 
on  the  9th  day  of  June  last,  during  the  Ascot  Race  Meeting,  were  the 
only  persons  standing  upon  a  platform  or  stand  made  to  represent 
"  safes."  or  iron  safe  chests.  The  words  "  Griffiths,  the  Safe  Man," 
were  printed  upon  it.  The  stand  was  outside  the  course,  on  a  spot  on 
Ascot  Heath  where  carriages  were  placed,  and  was  not  within  any 
betting  inclosure  or  ring. 

3.  The  prisoner,  with  a  book  in  his  hand,  was  calling  out,  "  Two  to 
one  against  the  field,"  just  before  a  race  was  about  to  be  run.  Rymer 
went  up  to  him  and  asked,  "  What  price  Bird  of  Freedom?  "  to  which 
he  replied,  "  Seven  to  one  to  win."  Rvmer  then  deposited  five  shillings 
with  Buckmaster,  who  told  him  that  if  the  horse  won  he  (Ryraef}"would 
win  thirty-five  t^^h'^^'^g;"  <^'"'^^  get-liia^ow:n  five  shillings  back.  He  also 
deposited  another  five  shillings  with  Buckmaster,  who  told  him  that  he 
would  have  fifteen  shillings  back,  including  bis  own  five  shillings,  if  the 
horg^Jwas  first  or  second.  The  man  who  was  witETuucKm aster  and 
was  acting  with  him,  received  the  money,  and  the  latter,  with  whom 
all  the  conversation  took  place,  appeared  to  take  down  the  bet  in  his 
book,  and  gave  Rymer  a  card-ticket  with  the  words  "  Griffiths,  Safe 
Man"  upon  it. 

1  See  People  v.  McDonald,  43  N.  Y.  61.  —  Ed. 


890  UEGINA   V.   BUCKMASTER.  [cHAP.  XII. 

4.  While  the  race  was  being  run,  the  prisoner  and  the  other  man 
■were  seen  by  one  of  the  witnesses  to  walk  quietly  away.  They  were 
followed  for  about  twenty  yards,  and  on  the  witness  at  once  returning, 
the  stand  had  gone.  The  horse  Bird  of  Freedom  won  the  race, 
and  thereupon  Rymer  went  back  to  the  jjlace  where  the  stand  had  been, 
and  he  found  that  the  prisoner  and  the  other  man  had  gone.  He  waited 
there  for  half  an  hour  and  then  left.  Much  later  in  the  afternoon 
Rymer  saw  the  prisoner  on  another  part  of  Ascot  Heath  and  said,  "  I 
want  £2  155.  from  you."  The  prisoner  said  be  knew  nothing  about  it. 
Upon  being  told  by  Rymer  that  he  would  be  detained,  he  admitted  the 
bet  and  said  he  had  not  the  money,  but  that  he  was  only  the  clerk 
and  could  take  the  prosecutor  to  the  man  who  had  it.  He  was  then 
taken  into  custody,  and  upon  him  were  found  card-tickets  with  the 
words  "Griffiths,  the  Safe  Man"  upon  them.  It  was  elicited  from 
Rymer  in  cross-examination  that  he  would  have  been  satisfied  if  he  did 
not  receive  back  the  same  particular  coins  he  had  deposited. 

5.  At  the  close  of  the  case  for  the  prosecution,  on  behalf  of  the 
prisoner  it  was  submitted  that  Rymer  having  parted  voluntarily  with 
tTie  money  there  was  no  evidence  of  larceny  nor  of  any  taking  by 
prisoner,  and  none  of  obtaining  by  false  pretence  or  trick. 

The  learned  chairman  declined  to  withdraw  the  case  from  the  jury, 
but  assented  to  state  this  case.  No  evidence  at  all  was  called  on  the 
part  of  the  prisoner,  and  a  verdict  of  guilty  was  returned. 

The  question  for  the  opinion  of  the  court  was  whether  there  was  any 
evidence  to  be  left  to  the  jury. 

Keith-Frith,  for  the  prisoner.  In  this  case  the  prisoner  might  per- 
haps have  been  convicted  of  obtaining  money  by  false  pretences.  But 
he  has  not  been  indicted  for  false  pretences ;  and  although  upon  an 
indictment  for  false  pretences  a  prisoner  can  be  convicted  of  larceny, 
he  cannot  upon  an  indictment  for  larceny  be  convicted  of  false  pre- 
tences. There  was  no  larceny  here,  because  here  there  was  no  taking 
invito  domino.  [Lord  Coleridge,  C.J. —Why  cannot  it  be  larceny 
by  a  trick?]  In  larceny  by  trick,  although  the  possession  is  parted 
with,  the  ownership  does  not  pass.  But  here*  the  prosecutor  did  intend 
to  part  with  the  ownership  of  the  specific  coins  he  gave  the  prisoner, 
and  therefore  the  ownership  in  them  passed.  [Hawkins,  J.  —  No  ;  the 
prosecutor  merely  intended  to  give  the  prisoner  the  coins  as  a  deposit 
to  abide  the  event  of  the  race.]  If  that  were  so,  then  the  person  who 
makes  a  bet  with  a  Geo.  III.  sovereign  can  insist  upon  that  particular 
coin  being  returned  to  him  if  he  wins.  [Smith,  J.  — Although  the 
whole  thing  was  a  sham,  do  you  say  that  the  prosecutor  intended  to 
part  with  his  coin?]  No  ;  but  if  the  ownership  was  obtained  by  means 
of  a  trick  as  well  as  the  possession,  the  prisoner  ought  to  have  been 
indicted  for  false  pretences.  Here  the  prosecutor  said  he  would  have 
been  satisfied  had  he  not  got  the  same  coins  back  ;  therefore  he  clearly 
intended  that  the  property  in  the  particular  coins  should  pass.  [Haw- 
kins, J.  —Is  not  Rex  v.  Robson,  Russ.  &  Ry.  413,  an  authority  that  the 


SECT,  v.]  EEGIXA   V.   BUCKMASTER.  891 

property  did  not  pass  under  the  circumstances?]  No;  for  there  the 
notes  were  never  intended  to  be  changed ;  they  were  merely  deposited 
as  a  stake.  Suppose  here  that  Bird  of  Freedom  had  lost,  the 
prisoner  would  have  been  entitled  to  keep  the  bs.  and  could  not  have 
been  indicted  for  stealing  his  own  property ;  and  therefore  as  the 
property  passed,  there  could  be  no  larceny,  and  the  conviction  should 
be  quashed. 

No  counsel  appeared  on  behalf  of  the  prosecution. 

Lord  Coleridge,  C.  J.     I  am  of  opinion  that  in  this  case  the  con- 
viction is  right  and  should  be  affirmed.     The  only  question  left  to  us 
by  the  learned  chairman  is,  whether  there  was  any  evidence  that  the 
prisoner  had  been  guilty  of    larceny  to  be  left  to  the  jury.     In  my 
opinion  there  was  abundant  evidence  from  which  the  jury  might  infer 
that  the  prisoner  was  guilty.     On  behalf  of  the  prisoner  it  has  been 
argued  that  there  is  no  doubt  that  the  money  was  intended  to  be  parted 
with,  and  that  not  only  was  the  possession  of  the  money  parted  with 
but  the  property  in  it  was  also  intended  to  be  parted  with  ;  and  that 
therefore,  as  the  property  was  intended  to  be  parted  with,  there  could 
be  no  larceny,  but  only  the  offence  of  obtaining  money  by  false  pre- 
tences ;  and  that,  although  the  prisoner,  if  he  had  been  indicted  for  the 
false  pretences,  could  have  been  convicted  of  larceny,  the  converse  does 
not  hold  good,  and  he  cannot,  upon  an  indictment  for  larceny,  be  con- 
victed of  obtaining  money  by  false  pretences.    To  that  there  seems  to 
me  to  be  two  answers  :  the  first,  that,  supposing  there  was  an  intention 
on  the  part  of  the  prosecutor  to  part  with  the  property  in  the  coin,  in 
order  to  pass  the  property  from  him  to  the  prisoner  there  must  have 
been  a  contract  under  which  it  could  pass ;  for  a  change  of  property 
could  only  have  taken  place  by  virtue  of  a  contract  of  some  sort,  and 
a  contract,  by  the  very  meaning  of  the  word,  must  be  the  bringing 
together   of   two   minds.     Nowhere    there   never  was  any  bringing 
together  of  the  mindj  ofjthe-^rosecutor  and  the  prisoner  in  the  shape 
nr^  ponti-act :  for_supposing  the  prosecutor  to  have  intended  to  have 
parted "withliis  money,  he^nlvjntended  to  do  so  on  the  assumption 
tlaaTthe  prisoner  intended  to^dJaThonestly  with^the  money  ;  whereas, 
on  the  contrary,  the  prisoner  never  intended^  to  do  that,  but  as  the 
evidence  shows  clearly,  intended  to  do  that  which  the  prosecutor  never 
for  a  moment  consented  to.     No  contract  ever  existed  therefore  ;  and 
there  is  high  authority  that,  under  such  circumstances,  the  property  in 
the  article  does  not  pass.     In  Rex  v.  Oliver,  Russ.  on  Crimes,  vol.  ii. 
p.  170,  which  was  a  case  tried  before  "Wood,  B.,  the  prosecutor  there 
had  a  quantity  of  bank-notes,  which  he  wanted  to  change,  and   the 
prisoner  offered  to  change  them  for  him.    The  prosecutor  gave  him  the 
bank-notes,  on  which  the  prisoner  decamped,  and  the  prosecutor  never 
got  any  money  in  return.    It  was  argued  that,  as  the  prosecutor  clearly 
intended  to  pass  the  property  in  the  bank-notes  to  the  prisoner,  he 
could  not  be  convicted  of  larceny.     But  Wood,  B.,  held  that  the  case 
clearly  amounted  to  larceny  if  the  jury  believed  that  the  intention  of 


JL    . 


892 


REGINA  V.    BUCKMASTER. 


[chap.  XII. 


V. 


the  prisoner  was  to  run  away  with  the  notes  and  never  to  return  with  the 
gold,  and  that  whether  the  prisoner  had  at  the  time  the  animus  furandi 
was  the  sole  point  upon  which  the  question  turned,  for  if  the  prisoner 
had  at  the  time  the  animus  furandi,  all  that  had  been  said  respecting 
the  property  having  been  parted  with  by  the  delivery  was  without 
foundation,  as  the  property  in  truth  had  never  been  parted  with  at  all. 
The  learned  judge  further  said  that  "  a  parting  with  the  property  in 


^'C^ 


'y^ 


^Uc^ 


goods  could  only  be  effected  by  contract,  which  required  the  assent  oil/ 

eTtlier'ortlie  prosecutoror  of  thepnsoner,  the  prosecutor  only  meaning/ 
to  part  with  his  notes  on  the  faith  of  having  the  gold  in  return,  and  the 
prisoner  never  meaning  to  barter,  but  to  steal."  It  appears  to  me  that 
that  is  not  only  good  sense  but  very  sound  law,  and  it  is  decisive  of 
the  point  raised  here.  I  am  of  opinion  therefore  that  there  is  evidence 
of  larceny  here,  and  that  the  true  view  to  take  of  this  case  is  that  the 
property  did  not  pass.  The  second  answer  appears  to  me  to  be  found  in 
the  case  of  Rex  v.  Robson,  Russ.  &  Ry.  413,  which  is  even  more  like  this 
case  than  the  case  I  have  already  cited.  In  Rex  v.  Robson  the  prose- 
cutor was  induced  by  the  prisoner's  confederates  to  make  a  bet  with  one 
of  them  and  to  part  with  a  number  of  bank-notes  to  another  of  the 
confederates,  who  passed  it  on  to  the  prisoner  to  hold  as  stake-holder. 
The  prosecutor  having  apparently  lost  the  bet,  the  money  was  given  by 
the  prisoiier  to  the  confederate  with  whom  the  bet  was  made,  and  he 
went  away.  Upon  these  facts  it  was  held  that,  where  there  is  a  plan 
to  cheat  a  man  of  his  property  under  color  of  a  bet,  and  he  parts 
with  the  possession  only  to  deposit  the  property  as  a  stake  with  one  of 
the  confederates,  the  taking  by  such  confederates  is  felonious.  The 
y^  case  was  tried  by  Bayley,  J.,  who  told  the  jury  that  if  they  thought, 
',r^at^when  the  notes  were  received,  there  was  a  plan  and  concert  between 
the  prisoners  that  the  prosecutor  should  never  have  them  back,  but 
that  they  should  keep  them  for  themselves,  under  the  false  color  and 
pretence  that  the  bet  had  been  won,  he  was  of  opinion  that  in  point  of 
law  it  was  a  felonious  taking  by  all.  The  jury  convicted,  but  the 
^learned  judge  thought  proper,  as  the  case  came  very  near  Rex  v. 
Nicholson,  2  East  P.  C.  669,  to  submit  it  to  the  consideration  of  the 
judges,  making  the  distinction  between  the  cases  that  in  Rex  v.  Robson, 
at  the  time  the  prisoners  took  the  prosecutor's  notes,  he  parted  with 
the  possession  only  and  not  the  property ;  and  that  the  property  was 
only  to  pass  eventually,  if  the  confederate  really  won  the  wager ;  and 
that  the  prosecutor  expected  to  have  been  paid  had  the  confederate 
guessed  wrongly.  Ten  of  the  judges  considered  the  case  and  held  the 
conviction  right,  because  at  the  time  of  the  taking  the  prosecutor 
parted  only  with  the  possession  of  the  money.  Now,  the  true  view  of 
y^  the  case  here  is  exactly  like  the  view  which  the  judges  took  in  that 
C  case.  In  this  case  the  prosecutor  deposits  money  with  the  prisoner, 
never  intending  to  part  with  that  money,  but  being  told  that  in  a  certain 
event  he  was  to  have  that  money  and  something  more  added  to  it  givea 


^?v  -^ 


SECT,  v.] 


EEGINA   V.   BUCKMASTEK. 


893 


back  to  him.  The  prisoner,  on  the  other  hand,  took  the  money,  never 
intending  to  give  it  back,  and  decamped  with  it.  It  appears  to  me, 
therefore,  that  the  possession  only  of  the  money  was  parted  with,  and-^Lo 
that  the  prosecutor  never  intended  to  part  with  the  property  in  it.  No 
doubt  had  he  had  money  given  back  to  him,  he  would  not  have  inquired 
into  the  question  whether  his  own  5s.  came  back  to  him  or  not.  But 
that  does  not  affect  the  question  whether,  when  he  placed  the  coins 
in  the  prisoner's  hands,  he  intended  to  pass  the  property  in  them  to  the 
prisoner.  At  all  events  there  was  plenty  of  evidence  from  which 
the  jury  could  find  that  such  was  not  his  intention ;  and  in  my  opinion 
the  conviction  should  be  affirmed. 

Pollock,  B.     I  have  nothing  to  add. 

Manisty,  J.  I  have  very  few  words  to  say.  I  take  it  on  the  author-  •y^^ 
ities  cited  by  my  Lord  that  it  is  settled  law  that  if  a  man  parts  with  the  ^ 
possession  of  money  but  does  not  intend  to  part  with  the  property  in 
it,  and  the  person  receiving  the  money  intends  at  that  time  to  steal  the 
money  in  a  certain  event,  that  there  then  is  larceny.  That  is  the 
ground  on  which  I  think  that,  as  in  this  case  the  prosecutor  never 
intended  to  part  with  his  5s.  except  in  the  event  which  did  not  occur 
and  the  prisoner  never  intended  to  return  the  money,  the  prisoner  was 
guilty  of  larceny. 

Hawkins,  J.  The  only  question  for  our  determination  is,  whether 
there  was  any  evidence  to  go  to  the  jury.  I  am  of  opinion  that  there 
was  abundant  evidence.  I  think  the  evidence  pointed  to  this,  that  the 
whole  of  the  prisoner's  conduct  pointed  to  an  original  and  preconcerted 
plan  of  the  prisoner  to  obtain  possession  of  and  keep  the  money  of 
the  prosecutor  ;  and  that  the  prosecutor  never  intended  on  such  terms 
to  part  with  the  property  in  his  5s.  I  think  therefore  that  there  was 
abundant  evidence  of  larceny  in  this  case,  and  that  the  conviction  should 
be  affirmed. 

Smith,  J.  I  think  that  it  is  cleaTthejvrosecntor  neverjntended  to 
part  with  the  property  in  the  5g.  except  on  conditioQ^-that  a  bona  fide 
bet  was  made.  1  think  also  tMt  there  is  evidence  that  at  the  time  the 
prosecutor  handed  the  5s.  to  the  prisoner,  thejjrisonerjntended  to  keep 
possession  "of  the  money,  whether  Bird  of  Freedom  lost  or  won.  He 
therefore  obtained  the  possession  of  the  prosecutor's  money'Bylrneans 
of  a  preconcerted  and  premeditated  fraud  ;  in  other  words,  by  a  trick. 
There  was  therefore  abundant  evidence  of  larceny,  and  in  my  opinion 
the  conviction  should  be  affirmed.^  Conviction  affirmed. 

J^iy^L^XAA^^ ^=- 

1  Stinson  v.  People,  43  111.  397  ;  Grunson  v.  State,  8^  Ind.  533  ;  Miller  v.  Com., 
78  Ky.  15  ;  People  v.  Sluaw,  57  Mich.  403 ;  Loomis  v.  People,  67  N.  Y.  322.  But  see 
Rex  V.  Nicholson,  Leach  (4th  ed.),  610;  Keg.  v.  Rilej,  1  Cox  C.  C.  98.  —  Ed. 


# 


894  REGINA   V.    SOLOMONS.  [CHAP.  XII. 

REGINA  V.   SOLOMONS. 
Crown  Case  Resekved.     1890. 

[Reported  17  Cox  C.  C.  93.] 

Case  stated  by  the  Deputj-chairmau  of  the  Loudon  Count}'  Quarter 
Sessions,  as  follows  :  — 

The  above  prisoner  was  tried  before  me  on  the  20th  day  of  Februarj', 
1890,  upon  an  indictment  which  charged  that  he  "  did  on  the  2d  day  of 
February,  1890,  felgmousl^  steal,  take,  and  carry  away  three  shillings 
and  sixpence,  the  property  of  Edward  Davy,"  The  second  count 
charged  him  "  witM'eloniously  recei\Jng  the  same,  well  knowing  it  was 
stolen." 

The  prosecutor  Edward  Dav}-  deposed  as  follows  :  — 

That  on  the  2d  day  of  February  in  this  year  I  was  near  Aldgate, 
when  the  prisoner  came  up  to  me.  At  that  time  there  was  another  man 
standing  a  little  way  off  selling  purses.  The  prisoner  said,  "  I  '11  show 
you  how  the  trick  is  done."  He  then  opened  a  purse  which  he  had  in 
his  hand,  and  putting  three  shillings  in  his  other  hand  said,  "  You  see 
there  are  three  shillings  there."  I  said,  "Yes."  He  then  dropped  them, 
or  appeared  to  do  so,  into  the  purse.  He  then  asked  me  if  I  would 
give  hiui  one  shilling  for  the  three  shillings  and  the  purse.  I  hesitated, 
but  afterwards  gave  him  a  shilling  for  the  three  shillings  and  the 
purse,  and  put  the  purse  into  my  pocket.  He  then  pulled  out  another 
purse,  and  showing  two  half-crowns  in  his  hand,  put  them,  or  appeared 
to  put  them,  into  the  purse,  and  asked  me  if  I  would  give  him  half  a 
crown  for  the  two  half-crowns  and  the  purse.  I  gave  him  half  a  crown. 
The  prisoner  then  said,  "  Just  to  show  that  I  am  not  cheating,  and  to 
let  the  public  see  it,  you  had  better  give  me  one-and-sixpence  for  ni}'- 
self,"  which  I  did.  I  then  walked  a  little  distance  away  and  opened 
the  first  purse  which  he  had  said  contained  three  shillings,  and  found 
only  three  halfpence.  In  the  second  purse,  which  was  said  to  contain 
two  half-crowns,  I  found  two  penny  pieces  only. 

In  cross-examination  the  prosecutor  stated  that  the  prisoner  prom- 
ised him  three  shillings  for  one  shilling,  that  he  bought  the  three 
shillings  and  the  purse,  that  he  did  not  buy  on  speculation,  and  that 
he  was  willing  to  take  the  half-crown,  if  the  prisoner  was  willing  to 
part  with  it ;  that  he  never  said  that  he  parted  with  his  money  to  see 
how  the  trick  was  done,  and  that  at  the  time  he  was  on  his  way  to  the 
Tabernacle  to  hear  INIr.  Spurgeon, 

Another  witness,  named  Norfolk,  in  everv  particular  corroborated  the 
storj',  but  his  evidence  will  be '-unnecessary  to  give  in  detail. 

A  constable  namecl  Burnett  was  also  called,  and  stated  that  he  took 
the  prisoner  intogcustody  for  stealing  three  shillings  and  sixpence. 
Prisoner  in  reply  said,  "  Serve  him  right;  more  fool  he  to  buy  them." 
On  being  searched  there  were  found  on  prisoner  seven  purses  and 
eleven  shillings  in  silver.    The  prosecutor  on  being  recalled  stated  that 


\ 


SECT,  v.]  EEGINA    V.    SOLOMONS.  895 

* 

he  did  not  care  for  the  purses,  but^that  he  wanted  the  money  which 
the  prisoner  promised. 

Upon  this  state  of  facts  it  was  argued  b}^  counsel  for  the  prisoner 
that  the  prisoner  ou^t  not  to  have  been  indicted  for Jarcen^^^e£au^ 
the  prosecutor  vohintarily  parted  with  his  money,  both  the  possession 
and  the  owDership,"ln  return  for  the  money  wEch  he  hoped  to^^t- 
Cases  were  quoted  in  support  of  this  statement. 

I  overruled  the  objection,  and  pointed  out  that  in  my  opinion  there 
was  no  difference  between  the  present_state  of  facts  an^  the  crime  of 
larcenv^lircommTtted  in  "thecase  of  "ring  dropping,"  and  that  although 
tTie  indictment  might  have  been  framed  for  obtaining  money  by  false 
pretences,  the  present  ^ne  was  equally  good  to  maintain  the  crime  of 
larceny  by  a  trick. 

The  verdict  was  as  follows:  "  We  find  the  prisoner  guilty  of  '  ob- 
aining '  the  money  by  a  trick."  I  asked  the  jury  what  they  meant ; 
id  they  mean  that  the  prisoner  committed  the  crime  of  larceny  by 

trick  as  explained  by  me  ?  and  they  answered  in  the  afflrmativeT*    j, 

I,  considering  it  of  importance  to  have  it  determined  whether  this"^^^. 
form  of  crime  came  within  the  misdemeanor  of  obtaining  goods  by  false     • 
pretences,  or  whether  it  was  a  felony,  decided  to  state  this  case,  which 
I   respectfully   do,    for   the   consideration   of  the  Court   of  Criminal 
Appeal. 

The  question  for  the  opinion  of  the  court  is,  whether  I  was  riglit  in 
holding  and  directing  the  jury  that  the  prisoner  might  be  convicted  of 
larceny  by  trick. 

Keith  Frith,  on  behalf  of  the  prisoner.     There  was  no  larceny  or 
trick  here,   for  wherever  the  ownership  aswell_as_Jhe_4LOS^£asimL of 
goods  is  parted  with,  there  can  "be  no  larceny!     The  prisoner  should 
haTrt)eeTrmdtcted  for  obtaining  the  coins  by  false  pretences.     Where 
it  has  been  held  that  there  has  been  larceny  by  a  trick,  such  as  the 
confidence  trick,  the  possession  and  not  the  ownership  has  been  parted 
with.     [Lord  Coleridge,  C.J.  —  In  Reg.  v.  Robson  (R.   &  R.  413)  \ 
(money  was  deposited  for  a  pretended  bet,  and  it  was  held  to  have  \ 
Vbeen  a  case  of  larceny.]     That  was  because  there  the  money  was  only  I 
deposited,  and  though  the  possession  was  parted  with  the  ownership 
of  the  money  did  not  pass.     In  Reg.  v.  Wilson  (8  C.  &  P.  Ill),  the 
ring-dropping  case,  it  was  held  to  be  a  case  of  false  pretences.     [The 
court  here  adjourned,  and  upon  re-assembling  on  the  17th  day  of  May, 
called  upon  the  counsel  for^the  prosecution  to  support  the  conviction.]     ^ 

May  llth.     Slade  Butler  for  the  prosecution.     The  question  here  ^^^^uTr 

is,  whetheiLQi:, not  this  particular  trick  comes  within.,  the  definitiou  of       ^^^*^;^c. 
larcenxT"  It  is  said  that  it  does  not,  because  the  prosecutor  intended  _y^    ^C     -  ^ 
to  part  with  the  ownership  of  the  coins.//  But  the  intention  in  the  mind     ^^^<^^y^^ 
of  the  prosecutor  cannot  alter  the  nature  of  the  crime.'' The  question  is  -^2j>^^^Y   *\ 
really  what  was  the  intention  of  the  prisoner  when  he  took  the  coins  ; 
and  there  can  be  no  doubt  but  that  he  intended  to  obtain  them  wrong- 
fully.   The  point  is  concluded  bv  the  case  of  Reg.  v.  Middleto^  (28  L.  T. 
llep.irs.  777  ;  12  Cox  C.  C.  417  ;  L.  Rep.  2  C.  C.  R.  38  ;  42  L.  J.  73, 


896  ,  /-'*^       EEGTNA   V.    SOLOMONS.  [CIIAP.  XII. 


M.  C.>7/ There  must  be  a  genuine  contract  in  order  to  pass  the  prop- 
erty, ami  here  there  was  never  any  contract.  The  prosecutor  here 
never  intended  to  contract  for  what  he  obtained.^He  also  cited  Reg,  v. 
Buckmaster  (57  L.  T.  Rep.  N.  S.  720 ;  10  Cox  C.  C.  339  ;  20  Q.  B. 
Div.  182;  57  L.  J.  25,  M.  C). 

LoKD  Coleridge,  C.J.  This  case  is  really  upon  consideration  too 
clear  for  me  to  entertain  any  doubt  about  it.  Of  course  one  hesitates 
to  let  off  a  man  if  he  is  guilty  of  a  gross  fraud,  and  it  is  matter  for 
regret  to  have  to  let  off  a  man  who  is  reall}'  guilty  of  something.  But  as 
long  as  we  have  to  administer  the  law  we  must  do  so  according  to  the 
law  as  it  is.  AV^e  are  not  here  to  make  the  law,  and  b}*  the  law  of 
England,  though  it  is  enacted  by  24  &  25  Vict.  c.  90,  s.  Hb,  that  a  man 
indicted  for  false  pretences  shall  not  be  acquitted  if  it  be  proved  that 
he  obtained  the  property'  with  stealing  which  he  is  charged  in  any  such 
manner  as  to  amount  in  law  to  larceny,  unfortunately  the  statute  stops 
there,  and  does  not  go  on  to  say  that  if  upon  an  indictment  for  larceny 
the  offence  committed  is  shown  to  be  that  of  false  pretences,  the  prisoner 
ma}'  be  found  guilt}'  of  the  latter  offence.  The  statute  not  having  said 
it,  and  the  one  offence  being  a  mi-sdemeanor  while  the  other  is  a  felon}', 
you  cannot  according  to  the  ordinary  principles  of  the  common  law 
convict  for  the  misdemeanor  where  the  prisoner  is  indicted  for  the 
felony.  Now  the  law  is  plain  that,  where  the  property  in  an  article  is 
intended  to  be  parted  with,  the  offence  cannot  be  that  of  larceny.  Here 
it  is  quite  clear  that  the  prosecutor  did  intend  to  part  with  the  property 
in  the  piece  of  coin,  and  the  case  is  not  like  any  of  those  cases  in  which 
the  prosecutor  clearly  never  intended  to  part  with  the  property  in  the 
article  alleged  to  have  been  stolen.  Whether  or  not  the  prosecutor 
here  intended  to  part  with  the  property  in  the  coin  does  not  signify  if 
what  he  did  was  in  effect  to  part  with  it  for  something  which  he  did 
not  get.  I  have  already  said  that  you  cannot  convict  of  false  pretences 
upon  an  indictment  for  larceny,  and  as  the  offence  here  was,  if  any- 
thing, that  of  false  pretences,  and  the  indictment  was  for  larceny,  it 
follows  that  this  man  must  get  off  upon  this  indictment.  I  am  there- 
fore of  opinion  that  this  conviction  must  be  quashed. 

Hawkins,  J.  I  cannot  myself  imagine  a  clearer  illustration  of  the 
difference  between  the  offence  of  false  pretences  and  that  of  larceny 
than  is  afforded  by  this  case.  It  is  perfectly  clear  that  i^^r\  pi-^ppfntrir 
intended  to  part  with  the  pi-nporty  in  tha  pnins^  and  that  V)ein^  so,  the 
case  is  clearly  not  that  of  larceni'.     The  convictjon  nnist  therefore  be  ^ 

quaira^  (UjC^^ci^     '^Zj-^^Kj^^^i^^    W_c<  o(    ^V.  C/CJUUIUA 

Matiiew,  J.  Tliis  is  a  cage  of  false  pretences,  if  anything,  ana  not 
of  larceny.;  and  I  am  of  opinion  therefore  that  the  conviction  must  6e 
quashed.  x: — 

Day,  J.     I  entirely  concur  with  my  Lord.  '^  ^^       .  ^  ^># 

Grantham,  J.     I  am  of  the  same  opinion.       .     Jl/^'^^'^-'^^  "^ 


1 


1  Acn.  Keg.  V  WilliJuns,  7  Cox  C.  C.  M5 ;  J{cg.  v  McKalc,  11  Cox  C.  C.  32;  Reg.  v. 
Twist,  12  Cox  C.  C.  509;  Reg.  v.  HoUis,  15  Cox  C.  C.  32.  — Ed. 


SECT,  v.]  KEGINA   V.   EUSSETT.  897 

REGINA  V.   RUSSETT. 

Crowx  Case  Reserved.     1892. 

[Reported  [1892]  2  Q.  B.  312] 

Case  stated  by  the  Deputy-cbairmau  of  the  Gloucestershire  Quarter 
Sessions  :  — 

The  prisoner  was  tried  and  convicted  upon  an  indictment,  charging 
him  with  having  feloniously  stolen  on  March  26.  1892,  the  sum  of  £8 
in  money  of  the  moneys  of  James  Brothertou.  It  appeared  from  the 
facts  proved  in  evidence  that  on  the  day  in  question  the  prosecutor- 
attended  Winchcomb  fair,  wh^ere  he  met  the  prisoner,  who  offered  to- 
sell  him  a  horse  for  £2JL ;  he  subsequently  agreed  to  purchase  the 
horse  for  £23,  £ji  oL  whicb_v\^s  to  be  paid  down,  and  the  remaining 
£15  was  to  be  handed  over  to  the  prisoner  either  as  soon  as  the  pros- 
ecutor was  able  to  obtain  the  loan  of  it  from  some  friend  in  the  fair 
(which  he  expected  to  be  able  to  do)  or  at  the  prosecutor's  house  at 
Little  Hampton,  where  the  prisoner  was  told  to  take  the  horse  if  the 
balance  of  £15  could  not  be  obtained  in  the  fair.  The  prosecutor,  his 
son,  the  prisoner,  and  one  or  two  of  his  companions,  then  went  into  a. 
public  house  where  an  agreement  in  the  following  words  was  written 
out  by  one  of  the  prisoner's  companions,  and  signed  by  prisoner  and 
prosecutor:  "  26th  3Iarch,  G.  Russett  sell  to  Mr.  James  and  Brother 
[^sic']  brown  horse  for  the  sum  of  £23  05.  Od.  Mr.  James  and  Brother 
pay  the  sum  of  £8,  leaving  balance  due  £15  Os.  Orf.  to  be  paid  on 
delivery."  The  signatures  were  written  over  an  ordinary  penny  stamp. 
The  prosecutor  thereupon  paid  the  prisoner  £8.  The  prosecutor  said 
in  the  course  of  his  evidence:  "■  I  never  expected  to  see  the  £8  back, 
but  to  have  the  horse."  The  prisoner  never  gave  the  prosecutor  an 
opportunity  of  attempting  to  borrow  the  £15,  nor  did  he  ever  take  or 
send  the  horse  to  the  prosecutor's  house ;  but  he  caused  it  to  be 
removed  from  the  fair  under  circumstances  from  which  the  jury  in- 
ferred that  he  had  never  intended  to  deliver  it. 

It  was  objected  on  behalf  of  the  prisoner  that  there  was  no  evidence 
to  go  to  the  juiy,  on  the  ground  that  the  prosecutor  parted  absolutely 
with  the  £8,  not  only  with  the  possession  but  with  the  property  in  it ; 
and,  consequently,  that  the  taking  by  the  prisoner  was  not  larceny, 
but  obtaining  money  by  false  pretences,  if  it  was  a  crime  at  all :  the 
objection  was  overruled.  In  summing  up.  the  Deput\--chairman  directed 
the  jury  that  if  they  were  satisfied  from  the  facts  that  the  prisoner 
Uad  pevgy  Jntended  to  deliver  the  horse,  but  had_goue__thraiigli- the 
form  of  a  bargain  as  a  devicj_by_ which  to  obtain  the  prost^i^ntnr's 
nigney,  and  that  the  prosecutor  never  would  have  parted  with  his  £8 
had  he  known  what  was  in  the  "prisoner's  mind,  they  should  find  the 
pj^oner  guilty  QjMarcen^:^^ 

57 


898 


KEGINA   V.    RUSSETT. 


[chap.  XII. 


The  question  for  the  court  was  whether  the  Deputy-chairman  was 
right  in  leaving  the  case  to  the  jury. 

Gwynne  James,  for  the  prisoner.  The  conviction  was  wrong.  The 
only  offence  disclosed  was  that  of  obtaining  money  by  false  pretences. 
There  was  no  evidence  to  go  to  the  jury  upon  a  charge  of  larceny. 
The  property  in  the  money  passed  to  the  prisoner  at  the  time  when  it 
was  handed  to  him  by  the  prosecutor,  who  admittedly  never  expected  to 
see  it  again  ;  the  receipt  given  for  the  money  is  strong  evidence  of  the 
change  of  property.  The  case  is  distinguishable  from  Reg.  v.  Buck- 
master,  20  Q.  B.  D.  182  ;  for  in  that  case  the  question  was  whether 
the  prosecutor  expected  to  have  his  money  back.  There  is  in  the 
present  case  a  breach  of  contract,  for  which  the  prosecutor  has  a  civil 
remedy,  and  it  is  immaterial  that  the  prisoner  in  making  the  contract 
had  a  fraudulent  intent.  Rex  v.  Harvey,  1  Leach,  467.  For  the  fact 
that  the  contract  was  induced  by  fraud  did  not  render  the  contract 
void,  or  prevent  the  property  from  passing.  Clough  v.  London  and 
North  Western  Ry.  Co.,  Law  Rep.  7  t^x.  at  p.  34.  The  principle  of 
law  is  stated  in  Roscoe's  Criminal  Evidence,  11th  ed.  at  p.  620,  where  it 
is  said  :  "  The  doctrine  is  clearly  established  that,  if  the  owner  intends 
to  part  witli  the  property  in  the  goods,  and  in  pursuance  of  such  inten- 
tion delivers  the  goods  to  the  prisoner,  who  takes  tliem  away,  and  the 
property  becomes  his,  this  is  not  larceny,  even  though  the  prisoner  has 
from  the  first  a  fraudulent  intention." 

Stroud,  for  the  prosecution,  was  not  called  upon. 

LoRT)  Coleridge,  C.J.  I  ain^of  opinion  that  this  conviction  must 
be  supported.  The  principle  which  underlies  the  distinction  between 
larceny  and  false  pretences  has  been  laid  down  over  and  over  again, 
and  it  is  useless  for  us  to  cite  cases  where  the  facts  are  not  precisely 
similar  when  the  principle  is  always  the  same.  "When  the  question  is 
approached  it  will  be  found  that  all  the  cases,  with  the  jmssible  excep- 
tion of  Rex  V.  Harvey,  1  Leach,  467,  as  to  which  there  may  be  some 
slight  doubt,  are  not  only  consistent  with,  but  are  illustrations  of,  the 
principle,  which  is  shortly  this  ;  M  the  possession  of  the  money  or 
J  goods  said  to  have  been  stolen  has  beenjjarted  with,  but  th3  owner 


not  intend 
actTon 


o  part  with  the  property  in  them,  so  that  part  of  the  trans- 
Tiicompicte,  and  the  parting  wiCK'the  possession  has  been 
obtained  by  fraud —  that  is  larceny//  This  seems  to  me  not  only  good 
law,  but  good  sense,  and  this  principle  underlies  all  the  cases.  If, 
however,  authority  be  wanted,  it  is  to  be  found  in  two  cases  which  we 
could  not  overrule  without  tlie  very  strongest  reason  for  so  doing :  the 
first  is  Reg  v.  McKale,  Law  Rep.  1  C.  C.  125,  where  Kelly,  L.C.B., 
said,  "  The  distinction  between  fraud  and  larceny  is  well  established 
In  order  to  reduce  the  taking  under  such  circumstarifflp  «»  \r\  ihp. 
present  case  from  larceny  to  fraud,  the  transaction  must  be  complete. 


If  the  tran.saction  is  not  complete,  if  the  owner  has  not  parted  witK 
the  property  in  the  thing,  and  the  accused  has  taken  it  with  a  fraudu- 
lent intent,  that  amounts  to  larceny.".  The  distinction,  in  whichi 


SECT,  v.] 


REGINA   V.   RUSSETT. 


899 


entirely  concur,  is  there  expressed  in  felicitous  language  by  a  very 
high  authority.  The  other  case  is  that  of  Reg.  v.  Buckmaster,  20 
Q.  B.  D.  182,  which  seems  to  me  directly  in  point;  that  decision  was 
grounded  on  Rex  u.  Oliver,  2  Russell  on  Crimes,  170,  and  Rex  v. 
Robson,  Russ.  &  Ry.  413,  where  the  same  principle  was  applied,  and 
the  same  conclusion  arrived  at. 

Pollock,  B.  I  agree  in  the  conclusion  at  which  the  court  has 
arrived,  and  would  add  nothing  to  the  judgment  of  my  Lord  but  tliat  I 
wish  it  to  be  understood  that  this  case  is  decided  on  a  ground  which 
does  not  interfere  with  the  rule  of  law  which  has  been  so  long 
acted  on  :  that  where  the  prosecutor  has  intentionally  parted  with  the 
property  in  his  money  or  goods  as  well  as  with  their  possession  there 
can  be  no  larceny.  My  mind  has  therefore  been  directed  to  the  facts 
of  the  case,  in  order  to  see  whether  the  prosecutor  parted  with  his 
money  in  the  sense  that  he  intended  to  part  with  the  property  in  it. 
In  my  opinion,  he  certainly  did  not.  This  was  not  a  case  of  a  payment 
made  on  an  honest  contract  for  the  sale  of  goods,  which  eventually 
may,  from  some  cause,  not  be  delivered,  or  a  contract  for  sale  of  a 
chattel  such  as  in  Rex  v.  Harvey,  I  Leach,  467 ;  from  the  first  the 
prisoner  had  the  studied  intention  of  defrauding  the  prosecutor ; 
he  put  forward  the  horse  and  the  contract,  and  the  prosecutor,  believ- 
ing in  his  bona  fides,  paid  him  £8,  intending  to  complete  the  purchase 
and  settle  up  that  night.  The  prisoner  never  intended  to  part  with  the 
horse,  and  there  was  no  contract  between  the  parties.  The  money 
paid  by  the  prosecutor  was  no  more  than  a  payment  on  account. 

Hawkins,  J.  I  am  entirely  of  the  same  opinion.  In  my  judgment 
the  money  was  merely  handed  to  the  prisoner  by  way  of  deposit,  to 
remain  in  his  hands  until  completion  of  the  transaction  by  delivery 
of  the  horse.  He  never  intended,  or  could  have  intended,  that  the 
prisoner  should  take  the  money  and  hold  it,  whether  he  delivered  the 
horse  or  not.  The  idea  is  absurd;  his  intention  was  that  it  should  be 
held  temporarily  by  the  prisoner  until  the  contract  was  completed, 
while  the  prisoner  knew  well  that  the  contract  never  would  be  com- 
pleted, by  delivery  ;  the  latter  therefore  intended  to  keep  and  steal  the 
money.  Altogether,  apart  from  the  cases  and  from  the  principle  which 
lias  been  so  frequently  enunciated,  I  should  not  have  a  shadow  of 
doubt  that  the  conviction  was  right. 

A.  L.  Smith,  J.  The  question  is  whether  the  prisoner  has  been 
guilty  of  the  offence  of  larceny  by  a  trick  or  that  of  obtaining  money 
by  false  pretences  ;  it  has  been  contended  on  his  behalf  that  he  could 
only  have  been  convicted  on  an  indictment  charging  the  latter  offence  ; 
but  I  cannot  agree  with  that  contention.  The  difference  between  the 
two  offences  is  this :  if  possession  only  of  money  or  goods  is  given, 
and  the  property  is  not  intended  to  pass,  that  may  be  larceny  by  a 
trick ;  the  reason  being  that  there  is  a  taking  of  the  chattel  by  the 
thief  against  the  will  of  the  owner ;  but  if  possession  is  given  and  it 
is  intended  by  the  owner  that  the  property  shall  also  pass,  that  is  not 


900 


EEX   V.    TIDESWELL.  [CIIAP.  XII. 


larceny  by  a  trick,  but  may  be  false  pretences,  because  in  tbat  case 
there  is  no  taking,  but  a  handing  over  of  the  chattel  by  the  owner. 
This  case,  therefore,  comes  to  be  one  of  fact,  and  we  have  to  see 
whether  there  is  evidence  that,  at  the  time  the  £8  was  handed  over, 
the  prosecutor  intended  to  pass  to  the  prisoner  the  property  in  that 
Slim,  as  well  as  to  give  possession.  I  need  only  refer  to  the  contract, 
which  provides  for  payment  of  the  balance  on  delivery  of  the  horse,  to 
shew  how  impossible  it  is  to  read  into  it  an  agreement  to  pay  the  £8 
to  the  prisoner  whether  he  gave  delivery  of  the  horse  or  not ;  it  was 
clearly  only  a  deposit  by  way  of  part  payment  of  the  price  of  the 
horse,  and  there  was  ample  evidence  that  the  prosecutor  never  intended 
to  part  with  the  property  in  the  money  when  he  gave  it  into  the 
prisoner's  possession. 

Wills,  J.  I  am  of  the  same  opinion.  As  far  as  the  prisoner  is 
concerned,  it  is  out  of  the  question  that  he  intended  to  enter  into  a 
binding  contract ;  the  transaction  was  a  mere  sham  on  his  part.  The 
case  is  not  one  to  which  the  doctrine  of  false  pretences  will  apply,  and 
I  agree  with  the  other  members  of  the  court  that  the  conviction  must 
be  affirmed.  A.-A>^>''^**^\ciiLiJ^^^"^*^^*^"  ^-^''^^^^^'^ 


REX  V.  TIDESWELL. 
CouKT  FOR  Crown  Cases  Reserved.     1905. 

[Reported  1 905,  2  A'.  B.  273.] 

Case  stated  by  the  chairman  of  the  Staflfordshire  Quarter  Sessions 
for  the  consideration  of  the  Court  for  Crown  Cases  Reserved. 

1.  The  prisoner  was  tried  on  an  indictment  charging  him  — 

(a)  With  felonioiLslv  stealing  1  ton  10  cwt.  of  casters'  ashes  on  Jan- 
uary 28,  11)04,  the  propertv  of  Allen  Everitt  &  Sons,  Limited. 

(i^)  With  receiving  the  said  goods  on  the  date  aforesaid  well  knowing 
them  to  have  been  stolen. 

(c)  With  feloniously  stealing  1  ton  6  cwt.  of  casters'  ashes  on  April 
21,  1904,  tiie  property  of  the  said  Allen  Everitt  &  Sons,  Limited. 

(d)  With  receiving  tlie  last-mentioned  goods  on  the  said  date  well 
knowing  them  to  have  been  stolen. 

2.  It  was  proved  that  the  prisoner  had  been  a  customer  of  Allen 
Everitt  &  Sons,  Limited,  for  a  number  of  years,  purchasing  waste  and 
residual  metal  products  from  them.  A  man  named  Ephraim  Ka3-e  was 
employed  by  Allen  Everilt  &  Sons,  Limited,  as  general  metal  weigher, 
and  it  was  his  duty  to  weigh  out  waste  and  residuals,  and  to  enter  in  a 
book,  called  the  residual  metal  book,  a  record  of  such  weights  for  the 
purpose  of  enal)ling  the  customers  to  be  charged  in  the  books  of  the 
company  with  tiie  proper  weights.  It  was  also  the  duty  of  Ephraim 
Kaye  to  keep  another  book,  called  the  receipt  book,  in  which  he  took 

1  Ace.  People  v.  Eae,  66  Cal.  423.    See  People  v.  Easchke,  73  Cal  378.  —  Ed. 


SECT,  v.]  REX    V.   TIDESWELL.  901 

from  the  customers  signed  receipts  for  the  weights  of  waste  and  resid- 
uals taken  by  them. 

3.  Oil  January  23,  1904,  Ephraim  Kaye  weighed  and  delivered  into 
trucks  of  the  railway  company  a  quantity  of  casters'  ashes,  a  residual 
metal  product,  the  property  of  Allen  Everitt  &  Sons,  Limited,  weighing 
in  fact  32  tons  13  cwt.  EjTbraim  Kaye  made  out  a  receipt  for  these 
casters'  aslies  by  the  prisoner~Tir"h:s  receipt-book,  describing  thenTivs 
weighijig  31  tons  3  cwt.  only,  and  IhTs^-eceipt  was,  on  January  23, 
signed  by  the  prisoner,  who  was  charged  with  that  amount  only  in  the 
books  of  the  company.  On  January  20  and  23  the  prisoner  rpade  out 
two  consignment  notes  to  the  railway  company  in  his  own  handwritino- 
for  19  tons  9  cwt.  and  1^  tons  4  cwt.  respectively  of  casters'  ashes, 
amounting  together  to  32  tons  13  cwt. 

4.  On  April  21,  1904,  Ephraim  Kaye  weighed  and  delivered  into 
two  trucks  of  the  railway  company  a  quantity  of  casters'  ashes,  the 
property  of  Allen  Everitt  &  Sons,_LLaiiLed^  weighinjgjnjact  12  tons  16 
cwt^2  qjrs^  The  prisoner  on  April  20  signed  a  receipt  made 'out  by  ~ 
Ephraim  Kaye  in  his  receipt-book  for  11  tons  10  cwt.  2  qrs.  only,  and 
was  charged  with  that  weight  in  the  books  of  the  couipany.  The  pris- 
oner on  April  21  made  out  a  consignment  note  to  the  railway  company 
in  his  own  handwriting  for  12  tons  16  cwt.  2  qrs.  of  casters'  ashes. 

5.  Ephraim  Kaye,  who,  on  being  charged  with  the  aforementioned 
felonies  before  magistrates  at  petty  sessions,  pleaded  guilty,  and  was 
sentenced  to  three  months'  imprisonment,  was  called  on  behalf  of  the 
prosecution,  and  stated  that  he  entered  the  lesser  weights  in  the  resid- 
ual metal  book  and  receipt-book  intentionally,  and  that  he  kept  a  pri- 
vate book,  to  which  he  referred  at  the  trial,  in  which  he  entered  all  the 
correct  weights  of  goods  weighed  out  to  the  prisoner,  who  obtained 
these  correct  weights  from  him,  or  through  being  present  at  the  time 
they  were  entered.  He  said  that  he  had  no  previous  arrangement  or 
understanding  with  the  prisoner  that  he  was  to  be  charged  for  less 
casters'  ashes  than  were  to  be  sent,  and  that  he  could  not  say  that  he 
had  ever  told  the  prisoner  that  he  was  being  charged  for  less  than  the 
actual  weights  on  any  occasion,  and  that  there  was  no  understanding  as 
to  any  particular  deduction  from  weights,  though  (he  added)  deductions 
were  as  a  matter  of  fact  made;  but  the  prisoner  had  given  him  suras 
of  money  from  time  to  time  as  a  reward  for  these  services  generally, 
though  not  as  a  payment  in  respect  of  any  particular  transaction.  All 
the  casters'  ashes  that  were  put  into  the  railway  company's  trucks  were 
loaded  in  the  ordinary  course  of  business  between  Allen  Everitt  &  Sons, 
Limited,  and  the  prisoner.         5v^.-7  ^ •     -^  c      • 

6.  On  this  evidence  it  was  o^cted  by  counsel  for  the  prisoner  that 
the  indictment  was  not  supported  by  the  evidence,  on  the  ground  that 
there  was  no  proof  of  the  larceny  or  receiving  by  the  prisone_r_oL.any 
s^jgcific  goods,  ^ 

/^  7.    I  overruled  the  objection,  but  consented  to  reserve  the  point  for 
the  consideration  of  the  Court  for  Crown  Cases  Reserved.     I  told  the 


992  EEX    V.   TIDESWELL.  [cHAP.  XII. 

jury  that  if  they  believed  the  evidence  for  the  prosecution,  their  duty 
was  to  find  the  prisoner  guilty.     The  jury  found  the  prisoner  guilty. 

March  18.  Vachell,  for  the  prisoner.  The  ashes  put  into  the  trucks 
were  never  divided,  so  that  it  was  impossible  to  say  which  particular 
tons  or  hundredweight  were  stolen.  "  In  larceny  some  particular  arti- 
cle must  be  proved  to  have  been  stolen ;  "  per  Alderson,  B.,  Reg.  v. 
Lloyd  Jones  (1838),  8  C.  &  P.  288.  Secondly,  the  evidence  shews  that 
the  property  in  the  whole  of  the  ashes  weighed  out  by  Kaye  passed  from 
the  prosecutors.     Sale  of  Goods  Act,  1893,  §  18,  rule  3. 

R.  W.  Cove  fit  ry,  for  the  prosecution.  It  is  enough  to  specify  the 
amount  stolen,  although  it  forms  part  of  a  larger  bulk.  Kaye  had  no 
authority  from  the  prosecutors  to  transfer  ttie  property  in  anj-  portion 
of  the  ashes  except  to  the  extent  of  the  entry  made  by  him  in  the  resid- 
ual metal  book.  And  the  prisoner,  knowing  that  he  had  no  such 
authority,  got  no  property  in  the  excess.  Reg.  v.  Hornby  (1844), 
1  C.  &  K.  305. 

The  Court  ordered  the  case  to  be  remitted  to  the  quarter  sessions 
with  directions  that  the  following  questions  should  be  answered :  — 

((/)  Was  there  any  previous  or  contemporary  contract  between  the 
prisoner  and  Allen  Everitt  &  Sons,  Limited,  or  any  authorized  agent 
or  servant  of  Allen  Everitt  &  Sons,  Limited,  other  than  Kaye,  either 
for  the  sale  of  these  ashes  or  the  sale  of  any  quantities  of  ashes  ?  If  so, 
the  particulars  of  the  terms  of  the  contract  should  be  set  out. 

(b)  Was  there  an}'  contract  between  the  prisoner  and  Kaye  for  the 
sale  of  the  ashes  on  either  of  the  dates  laid  in  the  indictment?  If  so, 
the  particulars  of  the  contract  should  be  set  out. 

In  accordance  with  that  order  the  chairman  stated  as  follows :  — 

The  evidence  at  the  trial  did  not  disclose  any  such  contract  as  re- 
ferred to  in  paragraph  (a)  or  in  paragraph  (b).  The  managing  director 
of  the  prosecutors  stated  in  evidence  tliat  the  prisoner  was  a  customer 
as  buyer  of  residuals,  and  that  he  had  sold  as  much  as  3000/.  in  value 
to  the  prisoner,  and  that  he  had  known  the  prisoner  fifteen  years  in 
the  way  of  business.  The  practice  appears  to  have  been  that  when 
Allen  Everitt  &  Sons,  Limited,  had  an  accumulation  of  waste  residuals 
or  ashes  they  sent  for  the  prisoner,  who  saw  the  managing  director  and 
arranged  verballj'  with  him  to  bu}-  so  much  as  he  should  require  of  the 
bulk  at  so  much  per  ton.  ■  No  specific  quantities  would  be  mentioned, 
the  understanding  being  that  the  quantities  purchased  should  be  de- 
fined by  the  weighing.  The  ashes,  the  subject  of  the  indictment,  formed 
part  of  one  of  these  accumulations. 

May  20.     H.  W.  Coventry^  for  the  prosecution. 

Vachell,  for  the  prisoner.  The  property  in  the  whole  of  the  truck- 
loads  passed  to  the  prisoner  as  soon  as  they  were  separated  from  the 
bulk  and  weighed  and  put  into  the  trucks  for  the  prisoner.  For  noth- 
ing else  remained  to  be  done  to  pass  the  property*.  Whatever  fraud 
was  afterwards  perpetrated  could  not  alter  the  fact.  The  prosecutors 
intended  the  whole  of  the  goods  to  go  to  the  prisoner,  for,  by  the  terms 


SECT,  v.]  I^EX    V.   TIDESWELL. 


903 


of  the  arrangement,  he  was  to  take  as  much  as  he  pleased.  "What  the 
prosecutors  were  deprived  of  was  not  a  certain  quantity  of  goods,  but 
a  part  of  the  price. 

Lord  Alverstone,  C.  J.     Upon  the  point  reserved  for  our  consid- 
eration upon  the  case  as  originally  stated,  namely,  whether  the  indict- 
ment for  larceny  could  be  supported  in  the  absence  of  proof  of  larceny 
of  any  specific  portion  of  the  goods,  I  entertained  no  doubt  whatever. 
But  in  the  course  of  the  argument  a  question  was  raised  as  to  whether 
the  property  in  the  goods  had  not  already  passed  to  the  prisoner  at  the 
time  of  the  fraudulent  entry  in  the  weight-book,  and  whether  conse- 
quently, whatever  other  criminal  offence  he  might  have  committed,  he 
could  be  properly  charged  with  larceny  ;  and  as  we  thought  the  case 
did  not  sufficiently  state  the  facts  with  respect  to  that  matter,  we  sent 
it  back  to  be  restated.     The  question  whether  the  prisoner's  offence 
amounts  to  larceny  must  depend  upon  the  circumstances  under  which 
he  received  the  goods.     Suppose  the  owner  of  a  flock  of  sheep  were  to 
offer  to  sell,  and  a  purchaser  agreed  to  buy,  the  whole  flock  at  so 
much  a  head,  the  owner  leaving  it  to  his  bailiff  to  count  the  sheep  and 
ascertain  the  exact  number  of  the  flock,  and  subsequently  the  purchaser 
were  to  fraudulently  arrange  with  the  bailiff  that  whereas  there  were  in 
fact  thirty  sheep  they  should  be  counted  as  twenty-five,  and  the  pur- 
chaser should  be  charged  with  twenty-five  only,  there  would  be  no 
larceny,   because  the  property   would   have   passed  to  the   purchaser 
before  the  fraudulent  agreement  was  entered  into.     On  the  other  hand, 
if  the  owner  were  to  leave  it  to  his  bailiff  to  arrange  the  sale,   author- 
izing him  to  sell  as  many  sheep  out  of  the  flock  as  the  purchaser  should 
be  willing  to  bu\',  then  if  the  contract  of  sale  arranged  between  the 
bailiff  and  the  purchaser  was  expressed  to  be  for  twenty-five  sheep, 
and  the  whole  thirty  were  fraudulently  delivered  to  the  purchaser,  the 
obtaining  possession  of  the  five  sheep  as  to  which  there  was  no  contract 
of  sale  would  amount  to  larceny.     In  the  present  case,  as  restated,  it 
appears  that  there  was  no  contract  with  the  managing  director  that  the 
prisoner  should  buy  the  whole  of  the  ashes  in  the  trucks,  but  only  such 
a  quantity  as  should  be  defined  by  the  weigliing  ;  in  other  words,  there 
was  no  contract  of  purchase  except  that  made  with  Kaye.     That  being 
so,  the  case  is  governed  b}'  the  principle  of  Reg.  v.  Hornby,  1  C.  &  K. 
305,  where  the  prisoner  received  goods  from  the  servant  of  the  owner 
under  color  of  a  pretended  sale,  and  it  was  held  that  the  fact  of  his 
having  received  the  goods  with  the  knowledge  that  the  servant  had  no 
authority  to  sell,  and  was  in  fact  defrauding  his  master,  was  sufficient 
to  support  an  indictment  for  larceny.     I  am  of  opinion  that  the  convic- 
tion in  this  case  must  be  upheld. 

Lawrance,  J.     I  am  of  the  same  opinion. 


904  KEX    V.   TIDESWELL.  [ciIAP.  XII. 

Kennedy,  J.  I  agree  in  the  statement  of  the  law  by  my  Lord,  and 
I  also  think  that  upon  the  case  as  originally  stated  it  was  not  clear 
that  the  facts  shewed  the  prisoner  to  have  been  guilty  of  larceny  within 
that  statement.  It  was  contended  that  what  took  place  was  an  ar- 
rangement whereby  the  property  passed  to  the  prisoner.  If  there  had 
been  a  completed  contract  with  the  managing  director,  or  some  other 
official  of  the  company  covering  all  the  goods  in  the  trucks,  then  no 
doubt  the  property  would  have  passed,  and  no  subsequent  fraud  would 
make  the  receipt  of  the  goods  larceny.  The  ofifence  in  such  a  case 
would  be  only  a  conspiracy  to  defraud  the  sellers  of  part  of  the  price. 
But  here,  on  the  facts  as  now  .stated,  there  was  no  intention  by  the 
prosecutors  to  pass  the  property  except  in  such  goods  as  should  be 
ascertained  by  the  weighing, — that  is  to  say,  in  the  smaller  quantity. 
Conseqently  there  was  a  larceny  of  the  balance. 

Channell,  J.  I  agree.  It  appears  to  me  that  the  question  whether 
the  prisoner  could  properly  be  convicted  of  larceny  depends  upon 
whether  there  was  a  contract  between  Allen  Everitt  &  Sons,  Limited, 
and  the  prisoner  for  the  sale  of  the  casters'  ashes  other  than  a  contract 
made  through  the  agency  of  tiie  fraudulent  man  Kaye.  To  take  the 
illustration  given  during  the  argument  of  the  sale  of  sheep.  If  a  farmer 
sells  all  the  sheep  in  a  field  to  a  purchaser  at  so  much  per  head,  but  not 
knowing  for  certain  how  many  sheep  there  are,  sends  his  servant  with 
the  purchaser  to  count  them,  and  the  servant  and  the  purchaser  fraud- 
ulently agree  to  say  that  there  were  only  nineteen  sheep  when  there 
really  were  twenty,  there  is  no  larceny  because  all  the  sheep  have  been 
sold  by  their  owner  to  the  purchaser,  but  the  purchaser  and  the  servant 
have  conspired  to  defiaud  the  owner  of  the  price  of  one  sheep.  If, 
however,  a  farm  bailiff,  having  authority  to  sell  his  master's  sheep  in 
the  ordinary  way,  says  to  a  purchaser,  "  There  are  twenty  sheep  in  the 
field  belonging  to  my  master,  but  he  does  not  know  how  many  there 
are ;  you  can  take  them  all.  I  will  tell  my  master  you  had  nineteen 
only,  and  you  can  pay  him  for  nineteen  and  give  me  a  present  for 
myself,"  there  is  clearly  a  larceny  of  one  sheep,  and  that  v  hether  the 
bailiff  professes  to  sell  the  twenty  sheep,  or  whether  he  professes  to  sell 
nineteen  only,  for  the  fraud  of  the  servant  is  known  to  the  piu-chaser, 
and  no  property  passes  in  the  twentieth  sheep  bN'  the  act  so  known  to 
be  fraudulent,  even  if  the  bailiff  professes  to  part  with  the  property  in 
it.  Reg.  V.  Hornb}-,  1  C.  «jc  K.  305,  is  a  distinct  authority  for  this.  It 
is  a  decision  of  Coltman,  J.,  alone,  but  it  appears  to  be  good  law.  Reg. 
V.  Middleton  (1873),  L.  R.  2  C.  C.  38,  also  supports  this  view,  and  so 
do  all  the  cases  as  to  what  is  usualh'  called  larceny  by  a  trick.  In  the 
case  supposed  it  would  be  impossible  to  say  which  of  the  twent}'  sheep 
was  the  one  which  had  been  stolen,  but  it  could  not  l)e  said  that  that 
would  prevent  a  conviction.     The  suggested  difficulty  in  the  present 


SECT,  v.]  REX     V.   WILKINSON.  905 

case  of  identifying  tlie  ton  and  a  half  of  casters'  ashes  which  was  stolen 
is,  in  ni}'  opinion,  no  more  fatal  than  the  difficulty  as  to  the  sheep 
would  be.  In  the  present  case  tlie  jury  must  be  taken  to  have  found 
that  the  prisoner  was  a  partj-  to  the  fraud,  and  though  he  may  not  have 
known  what  quantit}-  was  on  an}-  particular  occasion  to  be  given  to  him 
without  paying  for  it,  or  even  that  on  a  particular  parcel  being  handed 
to  him  some  part  would  be  so  given  to  him  (for  Kaye  doubtless  would 
onW  commit  the  fraud  when  the  circumstances  presented  a  reasonable 
probability  of  its  being  done  without  detection),  yet  the  prisoner  must 
be  taken  to  have  known  before  the  transactions  the  subjects  of  this 
indictment  that  Kaye  would  probablj'  do  on  this  occasion  what  he  had 
clearly  done  on  others,  and  in  the  cases  when  he  did  so  there  would  be 
a  larcenj-  committed  b^'  both,  though  in  the  other  cases,  when  the  stuff 
was  correctly  weighed,  there  would  be  none.  On  these  points  I  find 
no  difficult}',  but  in  the  case  as  originally  stated  there  was  nothing  to 
shew  whether  the  whole  transaction  of  the  sale  of  the  casters'  ashes 
was  carried  through  b}*  Kaye,  or  whether  the  limited  company  by  any 
other  officer  or  agent  made  a  contract  for  the  sale. 

Phillimore,  J.     I  entirely  agree.  Conviction  affirmed. 


SECTION  VI. 
Animus  furandi. 

REX  V.   WILKINSON. 
Crown  Case  Reserved.     1821. 

[Reported  Russell  ^  Ryan,  470.] 

The  prisoners  were  tried  before  Mr.  Justice  Park  (present  Lord 
Chief  Justice  Abbott)  at  the  Old  Bailey  Sessions,  October,  1821,  on 
an  indictment  for  stealing  six  thousand  six  hundred  and  ninety- six 
pounds'  weight  of  nux  vomica,  value  thirty  pounds,  the  property  of 
James  Marsh,  Henry  Coombe,  and  John  Young,  in  a  certain  boat 
belonging  to  them  in  the  port  of  London,  being  a  port  of  entry  and 
discharge. 

It  appeared  in  evidence  that  the  prosecutors  were  lightermen  and 
agents,  and  were  employed  by  a  Mr.  Cooper,  a  merchant,  who  delivered 
them  warrants  properly  filled  up  to  enable  them  to  pass  the  nux 
vomica  through  the  custom  house  for  exportation  to  Amsterdam. 
The  quantity  was  thirty  bales  of  nux  vomica,  consisting  of  seven 
hundred  and  fifty  bags. 

For  exportation  this  commodity  paid  no  duty ;  but  for  home  con- 
sumption there  was  a  duty  of  two  shillings  and  sixpence  on  the  pound 


906  REX   V,   WILKINSON.  [CFlAr.  XII. 

weight,  thougli  the  article  itself  was  not  worth  above  one  penny  per 
pound. 

Messrs.  Marsh  &  Co.  entered  the  bales  for  a  vessel  about  to  sail  to 
Amsterdam,  called  the  "York  Merchant,"  then  lying  in  the  London 
dock ;  and  having  done  what  was  necessary  delivered  back  the  cocket 
bill  and  warrants  to  Cooper,  considering  him  as  the  owner,  and  Marsh 
&,  Co.  gave  a  bond  to  Government  with  Cooper  under  a  penalty  to  export 
these  goods.  Marsh  &  Co.  were  to  be  paid  for  ligliterage  and  for  their 
services. 

After  this  Marsh  &  Co.  employed  the  prisoner  Wilkinson  as  their 
servant,  who  was  a  lighterman  (and  who  had  originally  introduced 
Cooper  to  them  to  do  what  was  necessary  respecting  the  nux  vomica), 
to  convey  the  goods  from  Bon  Creek,  where  they  were,  to  the  "  York 
Merchant "  at  the  London  docks,  and  lent  their  boat  with  the  name 
"Marsh  &  Co."  upon  it  to  enable  him  so  to  do. 

The  prisoner  Wilkinson  accordingly  went  and  got  the  nux  vomica  by 
an  order  commanding  the  person  who  had  the  possession  of  it  to  de- 
liver it  to  Mr.  John  Cooper.     The  bales  were  marked  C.  4  to  33. 

When  Wilkinson  received  the  cargo,  instead  of  taking  it  to  the  "  York 
Merchant"  he,  one  AVilliam  Marsden,  and  the  other  prisoner,  Joseph 
Marsden,  took  the  boat  to  a  Mr.  Brown's,  a  wharfinger  at  Lea  Cut  in 
the  county  of  Middlesex,  and  there  unloaded  it  into  a  warehouse  whicli 
William  Marsden  had  hired  three  weeks  before,  and  which  they  had 
used  once  before.  The  two  prisoners  and  William  Marsden  were 
there  employed  a  long  time  in  unpacking  the  bales,  taking  out  the 
nux  vomica,  repacking  it  in  smaller  sacks,  and  sending  it  by  a  wagon 
to  London,  and  refilling  the  marked  bales  with  cinders  and  other 
rubbish  which  they  found  on  the  wharf. 

The  prisoner  Wilkinson  then  put  the  bales  of  cinders,  etc.,  onboard 
the  boat,  took  them  to  the  "York  Merchant,"  hailed  the  vessel,  and 
said  he  had  thirty  bales  of  nux  vomica,  which  were  put  on  board  and 
remained  so  for  two  or  three  days  when  the  searcher  of  the  customs 
discovered  the  fraud. 

Marsh  &  Co.  admitted  that  they  had  not  been  called  on  fcr  any  du- 
ties nor  sued  upon  the  bond,  though  the  bond  remained  uncancelled. 

The  defence  was,  and  which  Cooper  was  called  to  prove,  that  the 
goods  were  not  his  (Cooper's) ,  but  that  he  had  at  William  Marsden's 
desire  lent  his  name  to  pass  the  entry  ;  and  that  he  had  done  so,  but 
did  not  know  wliy  ;  that  he  did  not  know  it  was  a  smuggling  trans- 
action, or  that  the  object  was  to  cheat  Government  of  the  importation 
duties. 

If  these  were  to  be  considered  as  the  goods  of  Cooper  then  it  should 
seem  a  felony  was  committed  upon  them  by  Wilkinson  and  the  two 
Marsdens  by  taking  them  in  the  manner  described  out  of  the  hands  of 
Marsh  &  Co.  without  their  knowledge  or  consent,  who  as  lightermen 
or  carriers  had  a  special  property  in  them,  and  who  were  also  liable  to 
Government  to  see  the  due  exportation  of  them. 


SECT.  VI,]  KEGINA   V.   WEBSTER.  907 

Even  if  they  were  the  goods  of  William  Marsden,  who  superluteuded 
the  shifting  of  them  from  the  bales  to  the  sacks,  the  question  for  the 
judges  to  consider  was  whether  this  can  be  done  by  an  owner  against 
a  special  bailee  who  has  made  himself  responsible  that  a  given  thing 
shall  be  done  with  the  goods,  and  which  the  owner,  without  the  knowl- 
edge or  consent  of  such  bailee,  had  by  a  previous  act  entirely 
prevented. 

The  learned  judge  told  the  jury  that  he  would  reserve  this  point  for 
the  opinion  of  the  judges  ;  but  desired  them  to  say  whether  they 
thought  the  general  property  in  the  goods  was  in  Cooper  or  William 
Marsden. 

The  jury  found  the  prisoners  guilty,  and  that  the  property  was  Wil- 
liam Marsden' s. 

In  Michaelmas  Term,  1821,  eleven  of  the  judges  (Best,  J.,  being  ab- 
sent) met  and  considered  this  case.  Four  of  the  judges,  namely, 
Richardson,  J.,  Bukkough,  J.,  Wood,  B.,  Graham,  B.,  doubted 
whether  this  was  larceny  because  there  was  no  intent  to  cheat  Marsh 
&  Co.  or  to  charge  them,  but  the  intent  was  to  cheat  the  Crown. 
Seven  of  the  judges,  namely,  Garrow,  B.,  Holroyd,  J.,  Park,  J., 
Bayley,  J.,  Richards,  C.  B.,  Dallas,  C.  J.,  Abbott,  L.  C.  J.,  held  it 
a  larceny  because  Marsh  &  Co.  had  a  right  to  the  possession  until  the 
goods  reached  the  ship  ;  they  had  also  an  interest  in  that  possession, 
and  the  intent  to  deprive  them  of  their  possession  wrongfully  and 
against  their  will  was  a  felonious  intent  as  against  them,  because  it 
exposed  them  to  a  suit  upon  the  bond.  In  the  opinion  of  part  of  the 
seven  judges  this  would  have  been  larceny  although  there  had  been 
no  felonious  intent  against  Marsh  &  Co.,  but  only  an  intention  to 
defraud  the  Crown. ^ 


REGINA  V.   WEBSTER. 
Crowx  Case  Reserved.     1861. 

[Reported  9  Cox  C.  C.  13.] 

Case  reserved  for  the  opinion  of  this  court  by  the  Chairman  of  the 
West  Riding  Sessions,  held  at  Sheffield. 

William  Webster  was  indicted  at  the  West  Riding  of  Yorkshire 
Spring  intermediate  sessions,  held  at  Sheffield,  on  the  22d  May,  1861, 
for  st"ealing,  on  the  11th  of  May,  at  Ecclesfield,  three  sovereigns  and 
one_half-sovereign,  the  property  of  Samuel  Fox  and  others. 

It  was  proved  on  the  trial  that  James  Holt  was  in  possession  of  a 
shop,  where  goods  were  sold  for  the  benefit  of  a  society  called  the 
"  Stockbridge  Band  of  Hope  Co-operative  Industrial  Society." 

1  FiJe  Fost.  124.  — Rep. 


908 


KEGINA   V.    WEBSTER.  [CHAP.  XII. 


Each  member  of  the  society  partook  of  the  profit,  and  was  subject 
to  the  loss  arising  from  the  shop.  Holt  (being  himself  a  member) 
had  the  sole  management,  and  was  answerable  for  the  safety  of  all 
the  property  and  money  coming  to  his  possession  in  the  course  of 
such  management.  The  prisoner,  also  a  member  of  the  society, 
assisted  in  the  shop  witho'ut  salary. 

On  the  occasion  of  the  alleged  larceny  Holt  had  marked  some  sover- 
eio-ns  and  half-sovereigns,  and  placed  them  in  the  till.  The  prisoner 
was  suspected  of  taking  some  of  them,  and  when  charged  with  this  he 
admitted  that  he  had  taken  the  coins  which  formed  the  subject  of 
this  charge,  and  produced  them  from  his  pocket. 

The  prosecution  failing  to  prove  that  this  was  a  friendly  society 
duly  enrolled,  elected  to-  amend  the  indictment  by  substituting  the 
name  of  James  Holt  for  that  of  Samuel  Fox  and  others,  and  the  same 
was  amended  accordingly. 

The  counsel  for  the  prisoner  put  in  a  copy  of  the  rules  of  the 
society,  with  the  name  of  John  Tidd  Pratt  printed  at  the  end  thereof, 
and  proved  that  this  copy  had  been  examined  with  the  original  copy, 
signed  and  sealed  by  the  registrar  of  friendly  societies,  but  which  was 
not  produced.  He  also  put  in  a  conveyance  of  the  shop  and  premises 
to  Samuel  Fox  and  other  as  trustees. 

No  other  evidence  of  the  trusteeship  was  given. 

The  counsel  for  the  prosecution  objected  that  in  order  to  prove  the 
society  to  be  a  friendly  society  under  the  18  &  19  Vict.  c.  63,  it  was 
necessary  to  produce  the  original  copy  signed  by  the  registrar,  or  to 
account  for  its  absence  suthciently  to  justify  the  admission  of  secondary 
evidence. 

I  overruled  this  objection,  and  admitted  this  evidence  as  proof  that 
the  society  was  duly  enrolled. 

It  was  contended  for  the  prisoner  that  Fox  and  others  were  the 
trustees  ;  that  this  was  a  friendly  society,  and  that  the  property  should 
be  laid  in  Fox  and  others,  and  not  in  Holt,  and  that  the  prisoner 
could  not  therefore  be  convicted  on  the  indictment  as  amended  ;  that 
as  to  any  special  property  Holt  might  have  in  the  money  taken,  he 
was  joint  owner  of  it  with  the  prisoner,  and  as  partner  with  him  jyas 
egiially  in  possession  of  it,  and  could  norETiereforg'^  convicted. 

l^he  court  overruled  these  last  nriiiiLiuuL'd'''o6Jecttons7~and  the 
prisoner  was  ccnivicted  and  sentenced  to  be  imprisoned  in  the  house 
[of  correction  at  Wakefield  for  nine  calendar  months,  subject  to  the 
\opiuion  of  the  Court  of  Criminal  Appeal  whether  under  the  circum- 
stances the  conviction  was  right. 

The  prisoner  was  admitted  to  bail  to  await  the  decision  of  the  Court 
of  Criminal  Appeal. 

A  copy  of  the  rules  of  the  society  accompanies  this  case,  and  is  to 
be  taken  as  incorporated  therewith. 

Wilson  Overend,  Chairman. 


SECT.  VI.]  EEGINA   V.   WEBSTER.  909 

T.  Campbell  Foster^  for  the  prisoner.  It  is  contended  that  the  in- 
dictment as  amended  was  not  proved,  and  that  the  property  ought  to 
have  been  laid  as  in  Fox  and  others,  the  trustees  of  the  friendly 
society.  The  prosecutor  having  failed  to  prove  that  the  property  was 
rightly  laid  in  Fox  and  others,  and  the  court  having  amended  the 
indictment  by  substituting  Holt's  name  instead  of  Fox  and  others,  the 
prisoner  produced  the  proper  evidence  to  show  that  Fox  and  others 
were  the  trustees  of  the  society,  and  then  objected  to  the  indictment  as 
amended,  on  the  ground  that  by  the  18  &  19  Vict.,  c.  63,  s.  18,  the 
property  of  the  friendly  society  was  vested  in  the  trustees.  Sect.  19 
empowers  the  trustees  to  bring  or  defend,  or  cause  to  be  brotight  or 
defended  any  action,  suit  or  prosecution  in  any  court  of  law  or 
equity,  touching  or  concerning  the  property,  right  or  claim  to  property 
of  the  society,  "  and  such  trustees  shall  and  may,  in  all  cases  con- 
cerning the  real  or  personal  property  of  such  society,  sue  and  be 
sued,  plead  and  be  impleaded  in  their  proper  names  as  trustees  of 
such  society  without  other  description." 

Martin,  B.  What  evidence  was  there  to  show  that  Holt  was  not 
in  possession  of  these  sovereigns  as  of  his  own  lawful  property? 

WiGHTMAN,  J.  Again,  he  was  a  partner,  and  had  the  personal 
possession  of  these. moneys. 

T.  Campbell  Foster.  It  is  submitted  that  the  only  possession  Holt 
had  was  that  of  a  servant  to  the  friendly  society.  If  he  had  taken 
and  appropriated  any  of  the  moneys  received  by  him,  he  might  have 
been  indicted  for  embezzlement,  and  therefore  he  was  a  servant,  and 
his  possession  was  that  of  the  society  his  masters. 

WiGHTMAN,  J.  He  was  not  a  servant ;  he  was  an  owner,  and  had 
the  sovereigns  in  his  personal  possession. 

Martin,  B.  He  had  the  sole  management  of  the  shop,  and  was 
answerable  for  the  safety  of  all  the  property  and  money  coming  to 
his  possession  in  the  course  of  such  management. 

T.  Campbell  Foster.  Then  the  prisoner,  being  also  a  member  of  the 
the  society,  was  a  partner,  and  could  not  be  convicted  of  stealing  his 
own  propert}'. 

Williams,  J.  There  is  the  well-known  case  of  a  man,  when  the 
hundred  was  liable,  being  convicted  of  stealing  his  own  money  from 
his  own  servant.     Foster,  123,  124. 

WiGHTMAN,  J.  These  sovereigns  were  not  part  of  the  goods  in  the 
shop,  but  money  for  which  Holt  had  to  account.  He  cannot  be  treated 
as  a  servant,  because  it  would  then  follow  that  he  was  one  of  the 
persons  appointing  himself. 

Martin,  B.  Holt  had  got  the  sovereigns  in  his  own  pocket,  as  it 
were,  and  suppose  that  while  walking  in  the  street  some  one  had 
picked  his  pocket  of  them,  could  not  the  thief  have  been  indicted 
for  stealing  his  money? 

T.  Campbell  Foster.  The  prisoner  was  assisting  in  the  shop  as  a 
partner  without  salary. 


910  ADAMS    V.    STATE.  [CHAP.  XII. 

WiGHTiiAX.  J.     Xo.     Holt  had  the  sole  management  of  the  shop. 

WILLIA3IS,  J.  How  does  this  ease  differ  from  Rex  v.  Bramley,  R. 
&  R.  478,  where  a  member  of  a  benefit  society  entered  the  room  of  a 
person  with  whom  a  box  containing  the  funds  of  the  society  was 
deposited,  and  took  and  carried  it  away,  and  it-  was  held  to  be 
larceny,  and  the  property  to  be  well  laid  in  the  bailee? 

Pollock.  C.  B.  No  doubt  a  man  who  has  pawned  his  watch  with  a 
pawnbroker  may  be  indicted  for  stealing  it  from  the  pawnbroker. 
The  present  case  finds  that  Holt  was  in  possession  of  the  shop,  and 
had  the  sole  management,  and  was  answerable  for  the  safety  of  all 
the  property  and  money  coming  to  his  possession  in  the  course  of  such 
management,  and  therefore  he  may,  quoad  hoc,  be  treated  as  the 
owner. 

By  the  Court  :  Conviction  aj^med. 


ADAMS    V.    STATE. 
Supreme  Court  of  New  Jersey.     1883, 

[Reported  45  New  Jersey  Law,  448.] 

KxAPP,  J.  The  plaintiff  in  error  was  indicted  for  grand  larceny  at 
the  May  term  of  the  Union  Oyer  and  Terminer,  the  indictment  charg- 
ing her  with  haviug  feloniously  stolen  certain  goods  and  chattels  as 
the  property  of  Thomas  "\V.  Sloan,  above  the  value  of  S20.  She  was 
iried  before  the  Quarter  Sessions  of  that  county,  convicted  upon  the 
trial,  and  sentenced  to  nine  mouths'  imprisonment  at  hard  lalwr.  The 
property  was  levied  upon  by  Sloan  as  the  property  of  Catherine 
Adams,  under  an  execution  which  Sloan  held,  as  constable,  against 
her ;  the  constable  allowed  the  goods  to  remain  at  the  house  of  the 
plaintiff  in  error,  the  place  of  the  levy,  she  being  informed  of  the  levy. 
Before  the  time  for  sale  under  the  execution,  the  plaintiff  in  error 
took  and  disposed  of  the  goods. 

The  case  comes  up  on  exceptions  to  the  refusal  of  the  court  to 
charge  as  requested,  and  upon  the  charge  as  made.  The  assignments 
of  error  present  the  question  whether  larceny  may  be  committed  by  the 
general  owner  of  property  in  taking  it  from  one  who  has  the  special 
ownership,  without  felonious  intent  in  such  taking. 

It  is  impossible,  under  ordinary  circumstances,  for  one  to  commit 
larceny  in  taking  possession  of  his  own  property,  and  the  general 
owner  of  goods,  in  their  lawful  possession,  has  full  dominion  and  con- 
trol over  such  goods ;  but  it  seems  to  be  well  settled  in  the  law  that 
larceny  may  be  committed  by  a  man  stealing  his  own  property,  if  the 
taking  be  animo  furandi,  or  with  a  fraudulent  design  to  charge  the 
bailee  with  the  value  of  it.  There  is  a  passage  found,  as  early  as 
the  time  of  the  Year  Books,  in  which  it  is  said,  "  If  I  bail  to  you 


SECT.  VI.]  ■  ADAMS   V.    STATE.  911 

certain  goods  to  keep,  and  then  retake  t&em  feloniously,  that  I  should 
be  hung  for  it,  and  yet  the  property  was  in  me."  ^  This  passage  is 
found  repeated  in  all  the  leading  criminal  treatises,  but  with  the 
addition  that  the  goods  be  taken  with  the  fraudulent  design  to  charge 
the  bailee  with  tlieir' value.  1  Hale  P.  C.  513;  4  Bl.  Com.  334;  2 
East  P.  C.  558  ;  Ros.  Crim.  Ev.  650.  As  if  one  delivers  his  goods  to 
another,  as  his  servant  or  bailee,  and  then  steals  them  from  such 
servant  or  bailee,  with  a  fraudulent  intent  to  charge  him  with  their 
value,  this  would  be  larceny  in  the  owner,  althougli  he  might  have 
had  their  possession  through  the  lawful  assertion  of  his  title.  On  an 
indictment  for  larceny  against  such  general  owner,  the  property  in  the 
goods  stolen  may  be  laid  as  that  of  the  special  owner.  The  general 
property  of  goods  levied  on  by  execution  is  in  the  debtor,  and  remains 
iu  him  until  they  are  sold  for  the  purpose  of  satisfying  the  execution  ; 
but  the  officer  who  levies  acquires  a  special  property  in  those  goods, 
which  entitles  him  to  their  possession  until  satisfaction  be  made  of  the 
execution.  Dillenback  v.  Jerome,  2  Cow.  293  ;  Smith  v.  Burtis,  6 
Johns.  196.  The  defendant  asked  the  court  to  charge  the  jury  that 
there  was  a  variance  in  the  allegation  of  property  in  Sloan,  and  the 
proof  upon  the  trial ;  that,  therefore,  the  defendant  should  not  be 
convicted.  This  the  court  refused  to  charge,  and  the  evidence  is 
brought  here  for  examination  as  to  the  correctness  of  the  court's 
action  in  so  refusing ;  but  upon  the  evidence  it  appears  that  Sloan,  as 
already  stated,  had  a  special  property  in  the  goods,  and  they  were 
therefore  properly  laid  as  his  goods  iu  the  indictment.  There  was 
no  error  in  refusing  so  to  charge. - 

The  next  exception  is  as  to  what  the  court  did  charge  on  the  subject 
of  ownership.  By  the  bill  of  exceptions  it  appears  that  the  court  said 
that  by  virtue  of  the  execution  and  levy  "  the  constable  became  the 
owner  of  the  goods  levied  upon  until  sold  by  him,  and  that  if  she  took 
the  goods,  or  assisted  any  one  else  in  the  taking,  she  is  guilty."  The 
part  of  the  charge  contained  in  this  bill  of  exceptions  is  all  we  have  of  it. 
It  would  seem  to  be  a  sufficient  statement  of  the  law  defining  the  rights 
which  the  constable  acquires  in  virtue  of  a  levy.  It  was  made  by  the 
court  in  answer  to  the  objection  that  the  true  ownership  was  not  alleged 
in  the  indictment,  and  as  respects  that  question  the  instruction  of 
the  court  was- correct.  The  constable's  ownership  was  a  qualified  one, 
it  is  true,  but  it  was  sufficient  to  support  the  averment.  The  further 
statement  in  that  portion  of  the  charge,  namel}-,  "  that  if  she  took  the 
goods  or  assisted  any  one  els^e  in  taking  them,  she  is  guilty,"  may  be 
subject  to  more  criticism.  It  certainly  is  not  a  full  presentation  of  the 
law.  It  is  not  every  sort  of  taking  of  these  goods  that  would  make  her 
criminally  liable.  It  might  have  amounted  to  no  more  than  a  trespass 
or  a  conversion  of  the  property  as  against  the  officer.  The  goods  were 
left  in  her  custody  by  the  officer.    As  between  them  she  may  have  been 

1  Y.  B.  7  Hen.  VI.  43.  — Ed. 

2  Acc.  People  v.  Long,  50  Mich.  249;  Palmer  !-•.  People,  10  Wend.  165. —Ed. 


912  ADAMS   V.    STATE.  [CHAP.  XII. 

considered  as  a  mere  receiptor  for  the  goods,  with  the  right  in  the  officer 
to  deprive  her  of  her  possession  and  assume  it  himself.  But  she  not  onl}' 
Iiad  their  actual  custody-,  but  was  as  well  the  general  owner,  and  could 
at  any  time  before  sale,  by  paying  the  judgment,  remove  the  officer's 
hands  entirely  from  her  property.  Now,  unless  her  taking  the  goods 
was  under  such  circumstances  as  in  some  wa}-  to  fraudulently  charge 
him  with  their  value,  it  is  difficult  to  find  any  recognized  rule  of  criminal 
law  that  would  hold  her  answerable  for  larceny. 

This  case  fails  in  resemblance  to  that  of  Palmer  v.  People,  10  T^end. 
166,  in  this  important  feature :  Palmer  was  convicted  of  having  felo- 
niously stolen  property  of  one  Jennings,  who,  as  constable,  had  levied 
upon  property  by  virtue  of  an  execution  against  Palmer.  The  goods,  by 
the  officer's  consent,  remained  with  Palmer,  who  subsequently  sold  the 
shingles  and  charged  the  constable  with  having  taken  them  away,  and 
brought  suit  against  him  for  their  value  upon  that  false  allegation. 
This  proof  was  held  sufficient,  on  the  ground  that  it  charged  a  felo- 
nious taking  of  his  own  property-,  with  intent  to  charge  the  constable 
with  the  value  of  it,  bringing  the  case  within  the  rule  above  stated  as 
the  ground  of  criminal  liability.  In  this  charge  is  found  the  broad 
proposition  that  any  sort  of  taking  or  conversion  by  the  general  owner 
rff  property  left  in  her  possession  by  a  constable  possessed  of  the  rights 
which  a  levy  gives  him,  is  a  criminal  act,  and  that  of  larceny.  No 
fraudulent  or  evil  design  existing  in  the  mind  of  the  defendant  is 
charged  or  intimated  to  be  a  necessary  element  of  guilt.  It  would  not 
be  every  taking  by  a  mere  stranger  of  these  goods  from  the  possession 
of  the  constable  that  would  amount  to  larceny.  A  felonious  intent 
would  be  a  requisite  ingredient  in  such  crime.  A  conversion  of  the 
goods  by  a  stranger  who  had  been  appointed  their  keeper  by  a  con- 
stable, would  not  have  been  a  crime  but  a  civil  wrong  merel}'.  To  hold 
the  general  owner  in  possession  to  a  severer  rule  seems  to  me  to  savor 
of  illegal  severit}'.  I  am  unable,  in  the  researches  I  have  made,  to 
find  any  case  wliich  warrants  the  ascription  of  criminality  to  such  facts. 
The  case  of  Rex  v.  Wilkinson,  Russ.  &  Ry.  470,  which  goes  as  far  as 
any  other  that  I  have  found,  presented  the  features  of  flagrant  fraud  on 
the  part  of  the  defendants,  who  were  the  real  owners  of  the  property, 
upon  either  the  prosecutors  or  upon  the  Crown.  As  to  which,  the  judges 
were  divided  in  opinion.  If  we  are  permitted  to  look  into  the  evidence 
which  is  handed  us  with  the  I'ecord,  one  can  scarcely  escape  the  conclu- 
sion that  if  the  rule  had  been  stated  to  the  jury  with  the  proper  quali- 
fication, the}'  must  have  failed  to  find  in  it  evidence  of  such  felonious 
design  as  would  have  raised  the  oflfence  above  that  of  a  mere  civil 
injury. 

Whether  the  judge  in  other  parts  of  his  charge  qualified  the  expres- 
sions in  the  opinion  excepted  to,  we  have  no  means  of  knowing ;  the 
charge  is  not  before  us.  We  have  nothing  but  this  pointed  statement 
of  his  views  of  the  law.  We  must  assume  that  this  embraced  his  entire 
instruction  to  the  jury  upon  the  legal  requisites  of  guilt,  and  it  was 


SECT.  VI,]  -REX   V.    CABBAGE.  913 

erroneous  in  a  way  that  must  have  prejudiced  the  defendant  in  her 
trial.  I  think  the  judgment,  for  this  error,  should  be  reversed  and 
a  new  tiial  ordered. 


REX  V.    CABBAGE.  „v^        O^ 


{Reported  Russell  ^-  Ryan,  292.] 


Crown  Case  Reserved.     1815. 


The  prisoner  was  tried  before  Thomson,  C.  B.,  at  the  Lent  Assizes 
for  the  county  of  Lancaster  in  the  year  1815,  on  an  indictment  for 
feloniously  stealing,  taking,  and  leading  away  a  gelding,  the  property 
of  John  Camplin. 

The  second  count  charged  the  prisoner  with  feloniously,  unlawfully, 
wilfully,  and  mahciously  killing  and  destroying  a  gelding,  the  property 
■^of  the  said  John  Camplin,  against  the  statute,  etc. 

The  counsel  for  the  prosecution  elected  to  proceed  upon  the  first 
count. 

It  appeared  that  the  gelding  in  question  was  missed  by  the  prosecu- 
tor from  his  stables  on  Monday,  the  28th  of  February,  1815.  The 
stable-door,  it  appeared,  had  been  forced  open.  The  prosecutor  went 
the  same  day  to  a  coal-pit,  about  a  mile  from  the  stable,  where  he  saw 
the  marks  of  a  horse's  feet.  This  pit  had  been  worked  out  and  had  a 
fence  round  it,  to  prevent  persons  from  falling  in ;  one  of  the  rails  of 
this  fence  had  been  recently  knocked  off.  A  man  was  sent  down  into 
the  pit,  and  he  brought  up  a  halter,  which  was  proved  to  be  the  halter 
belonging  to  the  gelding.  In  about  three  weeks  after  the  finding  of 
the  halter,  the  gelding  was  drawn  up  from  the  coal-pit  in  the  presence 
of  the  prosecutor,  who  knew  it  to  be  his.  The  horse's  forehead  was 
very  much  bruised,  and  a  bone  stuck  out  of  it.  It  appeared  that  at 
the  time  this  gelding  was  destroyed,  a  person  of  the  name  of  Howarth 
was  in  custody  for  having  stolen  it  in  August,  1813,  and  that  the  prose- 
cutor, Camplin,  had  recovered  his  gelding  again  about  five  weeks  after 
it  was  taken.  Howarth  was  about  to  take  his  trial  for  this  offence 
when  the  gelding  was  destroyed  in  the  manner  stated.  The  prisoner 
Cabbage  was  taken  into  custody  on  the  27th  of  March,  1815  ;  and  on 
his  apprehension  he  said  that  he  went  in  company  with  Anne  Howarth 
(the  wife  of  Howarth,  who  was  tried  for  stealing  the  said  gelding)  to 
Camplin's  stable-door,  and  that  they  together  forced  open  the  door  and 
brought  the  horse  out.  They  then  went  along  the  road  till  they  came 
to  the  coal-pit  before  mentioned,  and  there  they  backed  the  horse  into 
the  pit. 

It  was  objected  by  the  prisoner's  counsel  that  the  evidence  in  this 
case  did  not  prove  a  larceny  committed  of  the  horse ;  that  the  taking 

58 


914 


HEX  V.   MORFIT. 


[chap.  xn. 


appeared  not  to  have  been  done  with  intention  to  convert  it  to  the  use 
of  the  taker,  animo  furandi  et  lucri  causa. 

Thomson,  C.  B.,  overruled  the  objection,  and  the  prisoner  was  con- 
victed upon  the  first  count  of  the  indictment  for  stealing  the  horse. 
Judgment  was  passed  on  him,  but  the  learned  Chief  Baron  respited  the 
execution  to  take  the  opinion  of  the  judges  as  to  the  proprietj-  of  the 
conviction. 

In  Plaster  Term,  1815,  the  judges  met  to  consider  this  case,  and  the 
majority  of  the  judges  held  the  conviction  right.  Six  of  the  learned 
judges,  namely,  Richards,  B.,  Bayley,  J.,  Chambre,  J.,  Thomson, 
C.  B.,  GiBBS,  C.  J.,  and  Lord  Ellenborough,  held  it  not  essential  to 
constitute  the  offence  of  larceny  that  the  taking  should  be  lucri  causa  ; 
they  thought  a  taking  fraudulently,  with  an  intent  wholly  to  deprive 
the  owner  of  the  property,  sufficient ;  but  some  of  the  six  learned 
judges  thought  that  in  this  case  the  object  of  protecting  Howarth  by 
the  destruction  of  this  animal  might  be  deemed  a  benefit,  or  lucri 
causa.  Dallas,  J.,  Wood,  B.,  Graham,  B.,  Le  Blanc,  J.,  and  Heath, 
J.,  thought  the  conviction  wrong. ^ 

REX  V.   MORFIT. 
Crown  Case  Reserved.     1816. 

[Reported  Russdl  ^  Ryan,  307.] 

The  prisoners  were  tried  before  Mr.  Justice  Abbott,  at  the  Maid- 
stone Lent  Assizes,  in  the  year  181 G,  upon  an  indictment  for  feloni- 
ously stealing  two  bushels  of  beans,  value  five  shillings,  the  goods  of 
John  Wimble. 

On  the  trial  it  was  proved  that  the  prisoners  were  servants  in  hus- 
bandr}'  to  Mr.  Wimble  and  had  the  caie  of  one  of  his  teams  ;  that  Mr. 
Wimble's  bailiff  was  in  the  habit  of  delivering  out  to  the  prisoners  at 
stated  periods,  from  a  granary  belonging  to  him,  and  of  which  his 
bailiff  kept  the  key,  such  quantity'  of  beans  as  Mr.  Wimble  thought  fit 
to  allow  for  the  horses  of  this  team.  The  beans  were  to  be  split  and 
then  given  by  the  prisoners  to  the  horses.  It  appeared  that  the  gran- 
ary-door was  opened  by  means  of  a  false  key  procured  for  that  purpose, 
which  was  afterwards  found  hid  in  the  stable;  and  that  about  two 
l)ushels  of  beans  were  taken  away  on  the  day  after  an  allowance  had 
been  delivered  out  as  usual,  and  nearly  that  quantity  of  whole  beans 

1  Ace.  Williams  v.  State,  52  Ala.  411  ;  People  v.  Juarez,  28  Cal  380;  Keely  ». 
State,  14  Ind.  36  (semhle)  ;  Warden  t'.  State,  60  Miss.  638;  Delk  r.  State,  64  Miss. 
77  ;  State  v.  Ryan,  12  Nev.  401  ;  State  v.  Caddie.  35  W.  Va.  73.  Contra,  Pence  v 
State,  110  Ind.  95  ;  People  v.  Woodward,  31  Hun,  57.  See  also  Hamilton  v.  State,  3i 
Miss.  214 ;  State  v.  Slingerland,  19  Nev.  135:  State  v.  Davis,  38  N.  J.  L.  176;  State  V. 
Brown,  3  Strob.  508  {semhle).  —  Ed. 


SECT.  VI.] 


EEX    V.   DICKINSON. 


915 


was  found  in  a  sack,  concealed  under  some  chaff  in  a  chaff-bin  in  the 
stable. 

The  learned  judge  desired  the  jury  to  say  whether  they  thought  both 
the  piisouers  were  concerned  in  taking  the  beans  from  the  granary  ; 
and  also  whether  they  intended  to  give  them  to  Mr.  Wimble's  horses. 
The  jury  answered  both  questions  in  the  affirmative. 

Mr.  Justice  Bayley  had,  at  the  same  Assizes,  directed  a  verdict  of 
acquittal  under  circumstances  of  the  like  nature  ;  but  Abbott,  J.,  was 
informed  that  the  late  Mr.  Justice  Heath  had  many  times  held  this 
offence  to  be  larceny  ;  and  that  there  had  been  several  convictions 
before  him  ;  and  also  that  to  a  question  put  by  the  grand  jury  at  Maid- 
stone to  the  late  Lord  Chief  Baron  Macdonald,  he  had  answered  that 
in  his  opinion  this  offence  was  a  larceny. 

On  account  of  this  contrariety  of  opinion,  the  learned  judge  before 
whom  this  case  was  tried  thought  it  advisable  to  submit  the  question 
to  all  the  judges,  the  offence  being  a  very  common  one  ;  a  verdict  of 
guilty  was  taken,  but  judgment  respited  until  the  ensuing  Assizes. 

In  Easter  Term,  1816,  eleven  of  the  judges  met  and  considered  this 

»ase.     Eight  of  the  judges  held  that  this  was  felony  ;  that  the  pjirpose 

't-^jvhrji   t'^^  pvic^npi-a  hitpnflpfl   to  apply  the  beans  did  not  varythe 


case^  It  was,  however,  alleged  by  some  of  the  judges  that  the  addi 
tional  quantity  of  beans  would  diminish  the  work  of  the  men  who  had 
to  look  after  the  horses,  so  that  the  master  not  only  lost  his  beans,  or 
had  them  applied  to  the  injury  of  the  horses,  but  the  men's  labor  was 
lessened,  so  that  the  lucri  causa,  to  give  themselves  ease,  was  an 
ingredient  in  the  case.  Graham,  B.,  Wood,  B.,  and  Dallas,  J., 
thought  this  not  a  felony,  and  that  the  conviction  was  wr 


REX  V.   DICKINSON. 
Crown  Case  Reserved.     1820. 

[Reported  Russell  ^-  Rijan,  420.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Bayley  at 
the  summer  Assizes  for  the  county  of  Lancaster,  in  the  year  1820,  for 
stealing  a  straw  bonnet,  some  other  articles  of  female  apparel,  and 
a  box. 

It  appeared  that  the  prisoner  entered  the  house  where  the  things 
were  in  the  night,  through  a  window  which  had  been  left  open,  and  took 
the  things,  which  belonged  to  a  very  young  girl  whom  he  had  seduced, 
and  carried  them  to  a  hay-mow  of  his  own,  where  he  and  the  girl  had 
twice  before  been. 

The  jury  thought  the  prisoner's  object  was  to  induce  the  girl  to  go 

1  Ace.  Keg.  V.  Privett,  1  Den.  C.  C.  193.     See  Stat.  26  and  27  Vict.  c.  103,  §  1.  —Ed. 


,v^^ 


QiQ  KEGINA  V.    SPURGEON.  [CHAP.  XII. 

again  to  the  bay-mow  that  he  might  again  meet  her  there,  but  that  he 
did  uot  mean  ultimately  to  deprive  her  of  them. 

The  learned  judge  doubted  whether  this  was  a  felony,  and  discharged 
the  prisoner  upon  bail,  and  reserved  the  case  for  the  consideration  of 

the  judges. 

In  Michaelmas  term,  1820,  the  judges  met.  They  held  that  the 
taking  was_Dot  felonious,  and  directed  application  to  be  made  for  a 
pardon.^ 


REX  V.   CRUMP. 
Worcester  Assizes.     1825. 

[Reported  1  Carrington  Sf  Payne,  658.] 

This  prisoner  was  indicted  for  stealing  a  horse,  three  bridles,  two 
saddles,  and  a  bag,  the  property  of  Henry  Batemau. 

It  appeared  that  he  got  into  the  prosecutor's  stable,  and  took  awa 
the  horse  and  the  other  property  all  together ;  but  that,  when  he  had 
got  to  some  distance,  he  turned  the  horse  loose,  and  proceeded  on  foot 
to  Tewkesbury,  where  he  was^topjped^ttempting  to  sell  thejaddles 

Gakkow,  li.,  left  it  to  the  jury  to  say,  whether~tlie  prisoner  had  any 
intention  of  stealing  the  horse ;  for  that,  if  he  intended  to  steal  the 
other  articles,  and  only  used  the  horse  as  a  mode  of  carrying  off  the 
other  plunder  more  conveniently,  and,  as  it  were,  borrowed  the  horse 
for  that  purpose,  he  would  not  be,  in  point  of  law,  guilty  of  stealing 
the  horse. 

Verdict,  Not  guilty  of  stealing  the  horse;  Guilty  of  stealing  the  rest 
of  the  property  ."^ 


1 


REGINA  V.   SPURGEON. 
Central  Criminal  Court.     1846. 

[Reported  2  Cox  C.  C.  102.] 

The  prisoner  was  indicted  for  stealing  a  bag  and  some  papers,  the 
property  of  John  Philpotts.  From  the  evidence  it  appeared  that  the 
prosecutor,  who  was  an  attorney's  clerk,  had  left  the  bag  on  a  bench 
in  the  outer  room  of  the  Master's  office  of  the  Queen's  Bench  while  he 
went  into  the  inner  office  to  transact  some  business.  On  entering  the 
latter  he  saw  the  prisoner,  who  was  asking  charity,  and  who  in  a  few 

^  Ace.  Cain  v.  State,  21  Tex.  App.  21.     And  see  Reg.  v.  Jones,  1  Ueu.  C  C  188; 
U.  S.  V.  Durkee,  1  McAll.  196.  — Ed. 
*  Ace.  Dove  V.  State,  37  Ark.  261 ;  State  v.  York,  5  Ilarr.  493.  —  Ed. 


SECT.  VI.] 


EEGINA  V.   GARDNER. 


917 


minutes  quitted  the  room.  Shortly  afterwards  the  prosecutor,  on  re- 
turning to  the  place  where  the  bag  had  been  left,  discovered  that  it 
was  gone.  As  he  was  returning  to  his  employer's  chambers,  he  met 
the  prisoner  in  the  street  with  the  bag  in  his  possession.  On  being 
given  into  custody  the  prisoner  said  that  he  jook-the  .bag^-bclieving 
that  it  had  been  accidentallyi^fftitL'the-afficfi.  by  the  ojawer,  and  that 
his  intention  was  to  restore  it  to  him.  It  appeared  that  on  a  former 
occasion  some  papers  which  had  been  missed  by  the  prosecutor  were 
brought  to  his  office  by  the  prisoner,  who  received  a  shilling  for  his 
trouble. 

The  Recorder  (after  consulting  Mr.  Justice  Erie),  in  summing  up 
the  case  to  the  jury.  —  You  must  be  satisfied  that  the  prisoner  took 
this  property  against  the  consent  of  the  owner,  and  for  the  purpose 
of  gain.  I  am  of  opinion  that  it  is  not  essential  to  the  sustaining  this 
charge,  that  he  had  an  intention  of  converting  this  bag  permanently 
to  his  own  use.  1  will  ask  you,  first,  whether  you  think  he  took  it 
with  the  intent  to  exact  a  reward  from  the  owner  for  its  restoration, 
and  with  a  determination  not  to  restore  it  unless  such  reward  were 
given  him.  If  such  is  your  view  of  the  circumstances,  I  shall  have^o,,^ 
hesitation  in  saying  that  the  prisoner  has  committed  larceny.  Or, 
secondly,  do  you  think,  that  having  reasonable  grounds  for  believing  \ 
that  the  bag  belonged  to  some  person  in  the  inner  office,  who  had  ^  H^ 
deposited  it  there  for  a  short  time  until  he  should  return  for  it,  the 
prisoner  took  it  with  an  intention  of  returning  it  absolutely,  and  at 
all  events  taking  the  chance  of  any  reward  being  given  him  for  the 
pretended  service?  Even  in  this  case  I  am  of  opinion  that  he  would 
be  guilty  of  larceny ;  but  I  would  reserve  that  question  for  the  opinion 
of  the  judges  before  I  passed  sentence.  -— -^ 

The  jury  returned  the  following  verdict :  — 

Guilty  of  taking  the  property  in  order  to  exact  a  reward,  and  the 
prisoner  would  not  have  delivered  it  up  without  such  reward."^ 


REGINA  V.  GARDNER. 
Crown  Case  Reserved.     1862. 

[Reported  9  Cox  C.  C.  253.] 

The  following  case  was  reserved  at  the  Middlesex  Sessions. 

Edward  Gardner  was  tried  on  an  indictment  charging  him  in  the  first 
count  with  stealing  one  banker's  cheque  and  valuable  security  for  the 
payment  of  £82  195.,  and  of  the  value  of  £82  19s.,  and  one  piece  of 
stamped  paper  of  the  property  of  James  Goldsmith. 


1  Ace.  Eeg.  V.  O'Donnell,  7  Cox  C.  C.  337 ;  Com.  v.  Mason,  105  Mass.  163 ;  Berry  «. 
State,  31  Oh.  St.  219.  —  Ed. 


918 


REGINA   V.    GARDNER. 


[CIIAP.  XII. 


y^\  ^ 


In  the  second  count  the  property  was  stated  to  be  the  property  of 

Thomas  Boucher. 

It  appeared  from  the  evidence  of  Thomac  Boucher,  a  lad  of  fourteen, 
that  he  found  the  cheque  in  question ;  that  having  met  the  prisoner, 
Gardner,  in  whose  service  he  had  formerly  been,  he  showed  it  to  him  ; 
that  the  prisoner  (Thomas  Boucher  being  unable  to  read)  told  him  it 
was  only  an  old  cheque  of  the  Royal  British  Bank:  that  he  wished  to 
show  it  to  a  friend,  and  so  kept  the  cheque  ;  that  Boucher  very  shortly 
on  the  same  day  went  to  prisoner's  shop  and  asked  for  tlie  cheque  ; 
that  the  prisoner  from  time  to  time  made  various  excuses  for  not  giving 
up  the  cheque,  and  that  Boucher  never  again  saw  the  cheque. 

It  also  appeared  tliat  the  prisoner  had  an  interview  with  Goldsmith, 
in  which  he  said  that  he  knew  the  cheque  was  Goldsmith's,  asked  what 
reward  was  offered,  and  upon  being  told  bs.,  said  he  would  rather  light, 
his  pipe  with  it  than  take  05, 

The  cheque  lias  never  been  received  either  by  Goldsmith  or  Boucher, 
though  there  was  some  evidence  (not  satisfactory)  by  the  prisoner's 
brother  of  its  having  been  inclosed  in  an  envelope  and  put  under  the 
door  of  Goldsmith's  shop. 

The  jury  found  ''That  the  prisoner  took  the  cheque  from  Thomas 
Boucher  in  the  hopes  of  getting  the  reward ;  and,  if  that  is  larceny,  we 

find  him  guilty." 

Thereupon  the  judge  directed  a  verdict  of  guilty  to  be  entered,  and 
reserved  for  the  opinion  of  this  court  whether  upon  the  above  finding 
the  prisoner  was  properly  convicted. 

November  15.  Best  (witli  him  Besle)/)  for  the  prisoner  argued  that 
the  finding  of  the  jury  disproved  tlie  felonious  intent.  In  Reg.  v.  York, 
3  Cox  Grim.  Gas.  181,  a  similar  finding  of  the  jury  was  held  to  amount 
to  "  Not  Guilty."     (He  was  then  stopped.) 

A'erri?:*,  for  the  prosecution.  The  defendant  read  the  cheque,  and 
knew  the  owner.  In  this  respect  the  ease  diff'ers  from  Reg.  i\  Christo- 
plier,  8  Cox  Grim.  Gas.  91 ;  28  L.  J.  35,  M.  C.,  and  resembles  Reg.  v. 
Moore,  8  Cox  Grim.  Gas.  416 ;  30  L.  J.  77,  M.  C.  As  against  all  the 
world  but  the  true  owner,  the  boy,  Boucher,  was  the  owner,  and  the 
prisoner  took  the  cheque  from  him  against  his  will,  and  may  be  con- 
victed on  the  second  count. 

Pollock,  G.  B.  That  is  the  case  of  Armory  v.  Delamirie,  Str.  505, 
where  a  boy  was  held  entitled  to  sue  his  master  for  a  jewel  which  he 
liad  found  and  his  master  had  taken  from  him.  It  was  not  supposed 
that  the  master  was  guilty  of  felony.  There  the  jewel  was  not  ear- 
marked, but  every  one  who  can  read  can  tell  to  whom  a  cheque 
belongs.  Properly  speaking  a  cheque  is  not  a  chattel,  and  is  nol 
the  subject  of  larceny.  We  must  take  it  that  the  cheque  was  stamped, 
and  being  stamped  it  was  not  a  piece  of  paper,  —  it  was  a  cheque. 

Ciir.  ado.  vult. 
November  22.      Pollock,  C.  B.     In  this  case  the  prisoner  was  con- 
victed of  stealing  a  cheque.     He  took  the  cheque  away  from  a  boy  who 


SECT.  VI.]  REGINA   V.   TKEBILCOCK.  919 

found  it,  and  did  not  immediately  give  information  to  the  owner,  but 
withheld  it  in  the  expectation  of  getting  a  reward.  The  taking  of  the 
cheque  from  the  fiiwler  waa-iiot-aJJalonious  taking,  and  the  merely  with- 
holding  it  in  the  expectation  of  areward  was  not  a  larceny. 

The  rest  of  the  coiuTconcurring^^^  Conviction  quashed. 


REGINA  V.  TREBILCOCK. 

Croytn  Case  Reserved.     1858. 

[Reported  7  Cox  C.  C.  408.] 

At  the  General  Quarter  Sessions  of  the  Peace  holden  in  and  for  the 
borough  of  Plymouth,  on  the  1st  day  of  January,  1858,  before  Charles 
Saunders,  Esq.,  Recorder,  the  prisoner,  William  Trebilcock,  was  tried 
on  an  indictment  which  charged  him,  first,  with  a  larceny  upon  the 
Stat,  20  &  21  Vict.  c.  51,  §  4,^  in  having  as  bailee  of  plate,  the  property 
of  the  prosecutor,  fraudulently  converted  it  to  his  own  use  ;  secondly, 
with  a  common  larceny  of  the  same  plate.  The  jury  found  the  prisoner 
guilty  on  both  counts  of  the  indictment,  but  recommended  him  to  mercy, 
believing  that  he  intended  ultimately  to  return  the  property.  The 
question  for  the  opinion  of  the  court  is  whether,  consistently  with  the 
ground  upon  which  the  jury  recommended  the  prisoner  to  mercy,  the 
conviction  was  right  upon  both  or  either  of  the  counts. 

The  case  was  this :  The  prosecutrix.  Miss  Palmer,  resided  at  Ply- 
mouth, and  going  to  London  for  eight  or  ten  days,  deposited  with  the 
prisoner,  a  tradesman  at  Plymouth,  who  had  offered  to  take  care  of 
anything  for  her  during  her  absence,  a  chest  of  valuable  plate  for  safe 
custody  till  she  returned.  The  prisoner  had  been  told  that  the  prose- 
cutrix would  leave  a  parcel  with  him,  which  he  said  that  he  would  put 
in  his  iron  chest  to  keep  for  her.  When  the  chest  of  plate  was  placed 
in  the  prisoner's  hands  it  was  locked  (the  prosecutrix  keeping  the  key), 
then  covered  with  a  wrapper  sewed  together,  and  sealed  in  a  great  num- 
ber of  places,  and  then  tied  with  cord.  The  prisoner  was  not  informed 
of  the  contents  of  this  parcel,  nor  was  any  key  given  to  him.  In  a  day 
or  two  after  the  prosecutrix  left  for  London,  he  had  uncorded  the  chest, 
broken  the  seals,  taken  off  the  wrapper,  procured  a  key,  opened  the 
chest,  and  taken  out  a  part  of  the  plate,  and  offered  it  to  one  Woolf ,  at 
Plymouth,  as  a  security  for  the  advance  of  £50.  The  pawnbroker  took 
up  one  of  the  pieces  of  plate  which  bore  the  crest  and  also  a  superscrip- 

1  Ace.  Eeg.  V.  York,  3  Cox  C  C.  181  ;  Micheaux  v.  State,  30  Tex.  App.  660.  —  Ed. 

2  The  section  is  as  follows :  "  If  any  person  being  a  bailee  of  any  property  shall 
fraudulently  take  or  convert  it  to  his  own  use,  or  the  use  of  any  person  other  than 
the  owner  thereof,  although  he  shall  not  break  bulk  or  otherwise  determine  the  bail- 
ment,  he  shall  be  guilty  of  larceny." 


920 


REGINA   V.    TREBILCOCK. 


[chap.  XII. 


^S^ 


^ 


tion  with  the  name  of  Sir  George  Magrath  upon  it,  and  expressing  his 
dislike  to  have  anything  to  do  with  it,  the  prisoner  said  that  he  was 
under  an  engagement  to  be  married  to  Lady  Magrath.  The  prosecutrix 
had  lived  with  Sir  George  Magrath,  and  when  he  died  the  plate,  among 
other  property,  came  into  her  possession.  AVoolf  ultimately  declined 
any  advance  upon  it.  The  prisoner  then  communicated  by  letter  with 
another  pawnbroker  named  Druiff,  at  Newport  in  Monmouthshire,  with 
whom  the  prisoner  had  before  had  bill  transactions.  Druiff  came  to 
the  prisoner  at  Plymouth  and  advanced  him  £200,  taking  bills  for  the 
amount,  and  the  whole  chest  of  plate  worth  from  £.300  to  £600,  as  a 
collateral  security  for  the  loan.  Druiff  took  the  plate  away  with  him 
to  Newport.  The  prisoner,  by  way  of  accounting  to  Druiff  for  the 
possession  of  the  plate,  represented  to  him  that  he  was  going  to  get 
married  to  the  lady  of  the  late  Sir  George  Magrath,  and  that  she  had 
given  him  the  plate  to  take  care  of  till  they  were  married.  The  prose- 
cutrix went  to  London  on  the  8th  day  of  November,  and  returned  on 
the  17th  of  the  same  month.  On  her  return  the  prosecutrix  tried  often 
to  see  the  prisoner,  but  could  not  do  so  till  the  26th.  When  she  first 
saw  him  and  asked  him  for  the  parcel,  the  prisoner  said  he  would  send 
it  to  her  the  same  evening.  It  was  not  sent.  The  prosecutrix  went 
often  backwards  and  forwards  to  the  prisoner's  shop  and  private  resi- 
dence to  see  the  prisoner,  but  could  not  see  him  again  till  the  2d  of 
December,  when  the  prosecutrix  insisted  upon  instantly  having  her 
parcel.  The  prisoner  said  she  could  not  have  it  as  it  was  out  of  town,  he 
had  sent  it  to  Bristol ;  then  he  said  it  was  now  farther  than  Bristol,  that 
it  was  in  Wales,  but  that  he  would  write  a  letter  and  she  should  have 
it  on  Friday.  The  parcel  did  not  arrive.  The  prisoner  refused  to  tell 
in  whose  hands  it  was,  but  the  prosecutrix  had  learned  from  the 
prisoner's  father  that  Druiff  had  it.  The  inspector  of  police  went  to 
Newport  and  found  the  chest  of  plate  there,  but  Druiff  refused  to  give 
it  up  unless  upon  payment  of  the  £200  for  which  it  had  been  deposited 
with  him  as  security.  The  prisoner  could  not  redeem  it,  and  upon  the 
facts  being  made  known  to  the  ^Prosecutrix  she  had  the  prisoner  taken 
into  custody  on  a  charge  of  stealing,  and  the  police  took  possession 
of  the  chest  of  plate  as  stolen  property. 

Upon  the  finding  of  the  jury,  with  the  recommendation  to  mercy 
above  stated,  the  counsel  for  the  prisoner  contendetl  that  to  support 
either  of  the  counts  in  the  indictment,  it  was  necessary  that  the  pris- 
oner should  have  intended  permanently  to  deprive  the  prosecutrix  of 
her  property,  and  that,  as  the  jurjbelieved  that  his  intention  was 
ultimately  to  return  it,  the  verdict  was  wrong. 

The  prisoner  was  comnritt^l  to  prison,  and  sentence  deferred  until 
the  opinion  of  the  judges  shall  have  been  obtained  upon  the  question 
raised.  If  the  court  shall  be  of  opinion  that  the  ground  upon  which 
the  jury  recommended  the  prisoner  to  mercy  may  consist  with  the 
verdict  upon  both  or  either  of  the  counts  of  the  indictment,  the  verdict 
to  stand  upon  both  or  either  of  the  counts  accordingly.     If  the  recom- 


SECT.  VI.]  EEGINA  V.   TKEBILCOCK.  921 

mendation  may  not  consist  with  the  verdict  on  either  count,  then  the 
verdict  to  be  set  aside,  and  a  verdict  of  not  guilty  to  be  recorded. 

E.  W.  Cox,  for  the  prisoner.  Tlie  question  is  whether  the  recent 
statute  20  &  21  Vict.  c.  54,  §  4,  alters  the  general  law  of  larceny  in 
any  other  respect  than  making  a  bailee  liable. 

Lord  Campbell,  C.  J.  If  this  was  larceny  at  all,  it  was  larceny  at 
common  law.     The  statute  would  make  no  difference  in  this  respect. 

Coleridge,  J.  If  not  a  larceny  at  common  law,  the  new  statute 
would  not  make  it  such ;  so  that  the  only  question  is  whether  the  pris- 
oner could  properly  be  convicted  of  larceny  at  common  law.  The  jury 
have  found  him  guilty. 

E.  W.  Cox.  Yes ;  but  they  recommended  him  to  mercy  on  a 
ground  which  shows  that  a  verdict  of  guilty  is  wrong.  They  found 
that  he  intended  ultimately  to  return  the  property  to  the  owner. 

Crowder,  J.     That  is,  if  he  could  get  it  back  again. 

E.  W.  Cox.  The  law  on  this  subject  is  distinctly  laid  down  in  R.  v. 
Holloway,  3  Cox  C.  C.  145  ;  and  still  more  recently  in  R.  v.  Poole 
and  Yeates,  7  Cox  C.  C.  373.  In  R.  v.  Holloway,  Parke,  B.,  said, 
that  in  order  to  constitute  larceny  there  must  be  the  intention  to  de- 
prive the  owner  wholly  of  his  property,  to  usurp  the  entire  dominion 
over  the  chattels  taken,  and  to  make  them  his  own  ;  and  Lord  Denman 
used  similar  language,  patting  the  case  of  a  man  taking  a  horse,  with 
the  intention  of  riding  him  throughout  England,  and  then  returning 
him. 

Coleridge,  J.  But  in  this  case  the  jury  do  not  say  that  at  the  time 
of  the  taking  the  prisoner  intended  to  return  the  plate. 

Lord  Campbell,  C.  J.  On  the  contrary  they  negative  it  by  finding 
him  guilty. 

E.  W.  Cox,  It  is  necessarily  implied  in  their  statement  that  when 
he  parted  with  it  to  the  pledgee,  he  had  it  in  his  mind  to  get  it  back 
again  and  restore  it  to  the  owner. 

Lord  Campbell,  C.  J.  Your  general  proposition  of  law  is  right 
enough,  but  it  does  not  apply  to  this  case. 

E.  W.  Cox.  If  the  court  interprets  the  expression  used  by  the  jury 
as  meaning  only  that  at  some  time  after  the  larceny  the  prisoner  in- 
tended to  return  the  property,  the  argument  founded  on  R.  v.  Holloway 
necessarily  fails.  But  that  could  not  be  the  meaning  of  their  finding. 
The  alleged  larceny  was  complete  at  the  moment  of  depositing  the  plate 
with  the  pledgee.  It  was  for  that  he  was  tried,  and  to  that  alone  was 
the  attention  or  the  jury  directed.  They  had  nothing  to  do  with  any 
subsequent  intent.  Their  conclusion  could  have  had  reference  only  to 
the  felonious  act  charged  in  the  indictment,  and  to  the  moment  of 
committing  it,  and  if  they  were  of  opinion  that  he  had  then  an  inten- 
tion to  return  it,  of  which  there  is  no  doubt,  he  is  not  guilty  of 
larceny. 

Carter,  for  the  prosecution,  was  not  called  upon. 

Lord  Campbell,  C.  J.     The  general  proposition  contended  for  by 


922 


EEGINA   V.    TREBILCOCK. 


[chap.  XII. 


Mr.  Cox  is  perfectly  correct.  To  constitute  larceny,  there  must  be  an 
intention  on  the  part  of  the  thief  completely  to  appropriate  the  property 
to  his  own  use  ;  and  if  at  the  time  of  the  asportation  his  intention  is  to 
make  a  mere  temporary  use  of  the  chattels  taken,  so  that  the  dominus 
should  again  have  the  use  of  them  afterwards,  that  is  a  trespass,  but 
not  a  felony ;  but  that  law  does  not  apply  to  this  case.  Here  there 
was  abundant  evidence  of  a  larceny  at  common  law  ;  abundant  evidence 
from  which  the  jury  might  find  that  the  prisoner  feloniously  stole  the 
plate ;  and  the  jury  have  found  a  verdict  of  guilty.  But  they  have 
recommended  him  to  mercy,  and  accompanied  that  recommendation  with 
a  statement  as  to  the  prisoner's  intention  to  return  the  stolen  property. 
Now,  I  doubt  whether  what  the  jury  say  in  giving  their  reason  for 
recommending  the  prisoner  to  mercy,  is  to  be  considered  as  part  of 
their  finding ;  but  even  assuming  it  to  be  so,  all  that  they  say  is,  that 
he  intended°ultimately  to  return  the  property  ;  not  that  at  the  time  of 
the  wrongful  taking  he  originally  intended  to  make  a  merely  temporary 

use  of  it. 

Coleridge,  J.  I  am  of  the  same  opinion.  There  is  no  question 
about  the  law  in  this  case  ;  but  the  question  is  merely  as  to  the  facts. 
And  upon  the  facts  it  appears  that  the  prisoner  had  put  it  out  of  his 
power  to  return  the  plate  which  he  had  taken.  Then  what  must  we  do 
in  order  to  make  sense  of  the  finding  of  the  jury?  It  is  to  be  observed 
that  the  recommendation  to  mercy  in  itself  assumes  that  the  verdict  of 
guilty  is  correct ;  but  the  jury  seem  to  have  thought  that  the  prisoner 
had  it  in  his  mind  at  some  uncertain  time,  if  he  could  get  hold  of  it 
again,  to  restore  the  property,  and  they  might  consider  that  a  sufficient 
reason  for  recommending  him  to  mercy.  That  interpretation  makes 
sense  of  their  finding,  whilst  the  construction  put  upon  it  by  Mr.  Cox 
renders  their  conduct  quite  inconsistent  and  insensible. 

Martin,  B.  I  am  of  opinion  that  the  recommendation  to  mercy 
and  the  words  which  accompanied  it  were  no  part  of  the  verdict  at  all, 
and  that  when  the  jury  said  guilty  there  was  an  end  of  the  matter,  so 
far  as  the  verdict  was  concerned.  But  I  also  think  that  even  if  it  did 
form  part  of  the  verdict,  it  would  not  have  the  effect  of  bringing  it 
within  the  principle  of  the  cases  on  which  Mr.  Cox  relies.  It  seems  to 
me  quite  clear  that  this  prisoner  stole  the  plate,  and  then  pledged  it  for 
£200,  and  I  think  that  in  so  doing  he  "  usurped  the  entire  dominion  of 
it"  within  the  meaning  of  that  expression  as  used  by  Tarke,  B.,  in  the 
case  cited.  If,  therefore,  a  special  verdict  had  been  found  in  the  very 
terms  used  by  the  jury,  when  they  recommended  the  prisoner  to  mercy, 
I  should  have  said  that  he  was  still  guilty  of  larceny. 

Crowder,  J.  It  seems  to  me,  also,  that  upon  the  facts  of  this  case 
no  other  rational  conclusion  could  be  arrived  at,  except  that  th^  prisoner 
stole  the  plate.  He  broke  open  the  box,  and  took  out  the  plate,  and 
stole  it,  but  the  jury  recommended  him  to  mercy  because  they  thought 
that  he  had  an  intention  of  ultimately  restoring  it.  Probably  it  very 
often  happens  that  when  stolen  goods  are  pawned,  there  is  an  intention 


SECT.  YI.]  EEGINA   V.    HOLLOWAY.  923 

to  get  them  back  again,  if  the  person  pawning  them  should  ever  be  able 
to  do  so,  and  in  that  case  to  return  them  ;  but  such  an  intention  affords 
no  ground  for  setting  aside  a  verdict  of  guilty,  when  the  offence  of 
larceny  is  satisfactorily  proved  by  the  evidence. 

Watson,  B.  I  also  think  that  this  is  the  clearest  case  oUar£,eny 
possible,  though  the  jury  have  recommended  the  prisoner  to'merey, 
because  they  thought  that  he  would  ultimately  have  restored  the 
property  if  he  could  have  got  it  back. 

Conviction  affirmed.^ 


REGINA  V.   HOLLOWAY. 
Crown  Case  Reserved.     1849. 

[Reported  3  Cox  C.  C.  241 .] 

The  prisoner,  William  Holloway,  was  indicted  at  the  General  Quar- 
ter Sessions,  holden  in  and  for  the  borough  of  Liverpool,  on  Decem- 
ber 4th,  1848,  for  stealing  within  the  jurisdiction  of  the  court  one 
hundred  and  twenty  skins  of  leather,  the  property  of  Thomas  Barton 
and  another. 

Thomas  Barton  and  another  were  tanners,  and  the  prisoner  was  one 
of  many  workmen  employed  by  them  at  their  tannery,  in  Liverpool,  to 
dress  skins  of  leather.  Skins  when  dressed  were  delivered  to  the  fore- 
man, and  every  workman  was  paid  in  proportion  to  and  on  account  of 
the  work  done  by  himself.  The  skins  of  leather  were  afterwards  stored 
in  a  warehouse  adjoining  to  the  workshop.  The  prisoner,  by  opening 
a  window  and  removing  an  iron  bar,  got  access  clandestinely  to  the 
warehouse,  and  carried  away  the  skins  of  leather  mentioned  in  the  in- 
dictment, and  which  had  been  dressed  by  other  workmen.  The  pris- 
oner did  not  remove  these  skins  from  the  tannery ;  but  they  were  seen 
and  recognized  the  following  day  at  the  porch  or  place  where  he  usually 
worked  in  the  workshop.  It  was  proved  to  be  a  common  practice  at 
the  tannery  for  one  workman  to  lend  work,  that  is  to  say,  skins  of 
leather  dressed  by  him,  to  another  workman,  and  for  the  borrower  in 
such  case  to  deliver  the  work  to  the  foreman  and  get  paid  for  it  on  his 
own  account,  and  as  if  it  were  his  own  work. 

A  question  of  fact  arose  as  to  the  intention  of  the  prisoner  in  taking 
tlie  skins  from  the  warehouse.  The  jury  found  that  the  prisoner  did 
not  intend  to  remove  the  skins  from  the  tannery  and  dispose  of  them 
elsewhere,  but  that  his  intention  in  taking  them  was  to  deliver  them  to 
the  foreman  and  to  get  paid  for  them  as  if  they  were  his  own  work  ; 
and  in  this  way  he  intended  the  skins  to  be  restored  to  the  possession 
of  his  masters. 

1  See  Reg.  v.  Phetheon,  9  C.  &  P.  552 ;  Reg.  v.  Medland,  5  Cox  C.  C.  292.  —  Ed. 


-^ 


924 


EEGINA   V.    HOLLOWAY. 


[chap.  xir. 


^ 


r^ 


The  jury,  under  direction  of  the  court,  found  the  prisoner  guilty ; 
and  a  point  of  law  raised  on  behalf  of  the  prisoner  was  reserved,  and 
is  now  submitted  for  the  consideration  of  the  justices  of  either  Bench 
and  barons  of  the  Exchequer. 

"The  question  is,  whether,  on  the  finding  of  the  jury,  the  prisoner 
ought  to  have  been  convicted  of  larceny. 

"  Judgment  was  postponed,  and  the  prisoner  was  liberated  on  bail 
taken  for  his  appearance  at  the  next  or  some  subsequent  Court  of 
Quarter  Sessions  to  receive  judgment,  or  some  final  order  of  the 
court." 

Loivyides,  in  support  of  the  conviction.  The  finding  of  the  jury 
shows  that  the  prisoner  committed  larceny. 

Parke,  B.  Is  not  this  case  governed  by  R.  v.  "VVebb,  1  Moody 
C.  C. 431? 

Loiondes.  The  cases  are  distinguishable.  In  that  case,  miners 
employed  to  bring  ore  to  the  surface,  and  paid  by  the  owners  accord- 
ing to  the  quantity  produced,  removed  from  the  heaps  of  other  miners 
ore  produced  by  them,  and  added  it  to  their  own  heaps,  tlie  ore  still 
remaining  in  the  possession  of  the  master ;  and  it  was  held  not  to  be  a 
larceny.  Here  the  skins  were  removed  from  the  place  in  which  they 
had  been  put  by  the  master  for  custody  into  a  place  in  which  they 
were,  in  fact,  in  tlie  prisoner's  custody.  In  R.  v.  Webb,  the  ore  was 
never  out  of  the  master's  custody ;  in  this  case,  the  skins  were  dis- 
tinctly out  of  the  master's  custody. 

Coleridge,  J.  In  the  case  of  R.  v.  Webb  there  was  the  interval  in 
which  the  ore  passed  from  one  heap  to  the  other ;  was  it  not  then  out 
of  the  master's  custody? 

Loiondes.     There  was  no  intent  to  injure  the  owner  in  that  case. 

Coleridge,  J.  There  was  the  intent  to  obtain  payment  for  ore 
which  the  miner  had  not  dug  from  the  earth. 

Parke,  B.  It  is  essential  that  the  taking  should  be  with  the  intent 
to  deprive  the  owner  of  tlie  property  in  the  thing  taken  ;  the  jury  did 
not  find  that  in  this  case,  but  only  that  the  intention  of  the  prisoner 
was  to  get  paid  for  the  skins,  as  if  they  had  been  his  own  work. 

Lowndes.  It  is  not  necessary  that  there  should  be  the  intention 
wholly  to  deprive  the  owner  of  the  property ;  it  is  enough  if  the 
cliattel  is  taken  for  the  purpose  of  getting  a  benefit  different  from  the 
mere  use  of  it.  In  this  case,  though  there  was  an  intention  to  return 
the  skins,  there  was  not  the  intention  that  the  owner  should  be  put 
into  the  situation  in  which  he  was  before  the  taking ;  for  though  he 
was  to  have  the  skins,  he  was  to  have  them  minus  the  wages. 

Parke,  B.  The  taking  must  be  with  intent  to  acquire  the  entire 
dominion  to  the  taker. 

Lowndes.     The  taking  must  be  treacherous,  —  for  evil  gain. 

Parke,  B.  East's  definition  is,  "The  wrongful  or  fraudulent  taking 
or  carrying  away  by  any  person  of  the  mere  personal  goods  of  another 
person  anywhere,  with  a  felonious  intent  to  convert  them  to  his  (the 


SECT.  YI.]  REGINA   V.   HOLLO  WAY.  925 

taker's)  own  use  and  make  them  Lis  property,  without  the  consent  of 
the  owner."     2  East  PI.  Cr.  553. 

Lowndes.  In  3  Inst.  107,  Lord  Coke  defines  larceny  to  be  "  the 
felonious  and  fraudulent  taking  and  carrying  away,  hy  any  man  or 
woman,  of  the  mere  personal  goods  of  another,  neither  from  the  person 
nor  by  night  in  the  house  of  the  owner."  Bracton  and  Fleta  describe 
.it  as  "  Contractatio  rei  alienae  fraudulenta,  cum  animo  furaudi,  invito 
illo  domino,  cujus  res  ilia  fuerat."  Bracton,  lib.  iii.  c.  32,  fol.  150  ; 
Fleta,  lib.  i.  c.  36  ;  Glanville,  lib.  vii.  c.  17  ;  lib.  x.  c.  15  follows  Brac- 
ton. The  "Mirror"  gives  the  word  "  treachereusement ;  "  that  is, 
without  a  bona  fide  claim.  In  4  Blackst.  Com.  232,  it  is  said  that  the 
taking  must  be  "  felonious  ;  that  is,  done  animo  furandi,  or,  as  the 
civil  law  expresses  it,  lucri  causa."  Blackstone,  therefore,  uses  these 
phrases  as  synonymous. 

Lord  Denman,  C.  J.  Suppose  a  man  takes  the  horse  of  another 
with  intent  to  keep  him  for  a  year,  ride  him  through  all  the  counties 
of  England,  and  then  return  him;    is  that  a  larceny? 

Parke,  B.  There  must  be  an  intention  in  the  taker  to  acquire  the 
whole  dominion  over  the  thing,  to  make  it  his  own  ;  to  do  what  he 
likes  with  it. 

Lovmdes.    The  facts  in  this  case  show  a  taking  lucri  causa. 
Parke,  B.     The  case  of  R.  v.  Webb  has  decided  otherwise. 
Alderson,  B.     This  is  rather  an  obtaining  money  by  false  pretences 
than  a  larceny. 

Lowndes.  If  this  is  not  a  larceny  it  would  follow  that  if  chattels 
were  taken  for  the  purpose  of  obtaining  money  for  them  by  false 
pretences  from  the  owner,  and  in  that  way  converted  to  the  use  of 
the  taker,  he  w-ould  not  commit  larceny.  If  the  statement  does  not 
sufficiently  show  what  offence  has  been  committed,  the  case  may  be 
restated. 

Lord  Denman,  C.  J.  No.  The  facts  on  which  we  arc  to  decide 
must  be  stated  at  once.  This  court  is  not  to  be  used  to  keep  these 
cases  alive. 

Alderson,  B.     This  will  not  prevent  you  from  bringing  an  indict- 
ment for  obtaining  money  under  false  pretences. 
Lowndes.     No  money  was  obtained. 

Alderson,  B.  The  attempt  to  commit  a  misdemeanor  is  a  misde- 
meanor ;  and  if  the  removal  of  the  skins  amounted  to  such  an  attempt, 
the  indictment  may  be  preferred.  The  only  question  here  is,  whether 
the  Recorder  ought  to  have  directed  the  jury  to  find  a  verdict  of  not 
guilty. 

Lord  Denman,  C.  J.  If  I  thought  the  question  was  open  after  the 
authorities,  I  must  say  that  a  great  deal  might  be  urged  in  support  of 
the  proposition  that  these  facts  show  a  larceny  to  have  been  com- 
mitted ;  because  the  owner  is  deprived  of  his  property  foi-  some  time, 
and  the  probability  is  that  the  intent  distinguishing  the  case  from  lar- 
ceny may  be  altered.     The  case  which  I  put,  of  borrowing  a  horse  for 


s 


■1 


926 


REGINA   V.    HOLLOWAY. 


[chap.  XII. 


'  (^ 


Sr 


1 


a  year,  without  the  owner's  consent,  with  intent  to  ride  it  through 
England  and  then  return  it,  shows  this.  But  if  we  say  that  borrowing 
alone  would  constitute  larceny,  we  are  met  by  similar  cases  the  other 
way.  With  regard  to  the  definition  of  larceny,  we  have  of  late  years 
said  that  there  must  be  an  intention  to  deprive  the  owner  permanently 
of  his  property,  which  was  not  the  intention  in  this  case.  "We  are  not 
disposed  to  encourage  nice  distinctions  in  the  criminal  law  ;  yet  it  is  an 
odd  sort  of  excuse  to  say  to  the  owner,  "  I  did  intend  to  cheat  you  in 
fact  and  to  cheat  my  fellow-workmen  afterwards."  This,  however,  is 
not  an  act  which  is  not  punishable  ;  for  if  it  is  not  a  misdemeanor, 
which  at  the  first  sight  it  appears  to  be,  it  is  an  act  done  toward  com- 
mitting that  misdemeanor.  We  must  abide  by  former  decisions,  and 
hold  that  a  conviction  for  larceny  cannot  in  this  case  be  supported. 

Parke,  B.  I  am  of  the  same  opinion.  We  are  bound  by  the  authori- 
ties to  say  that  this  is  not  larceny.  There  is  no  clear  definition  of  lar- 
ceny api)licable  to  every  case  ;  but  the  definitions  that  have  been  given, 
as  explained  by  subsequent  decisions,  are  sufficient  for  this  case.  The 
definition  in  East's  "  Pleas  of  the  Crown"  is,  on  the  whole,  the  best ; 
but  it  requires  explanation,  for  what  is  the  meaning  of  the  phrase 
"wrongful  and  fraudulent"?  It  probably  means  "without  claim  of 
right."  All  the  cases,  however,  show  that,  if  the  intent  was  not  at  the 
moment  of  taking  to  usurp  the  entire  dominion  over  the  property  and 
make  it  the  taker's  own,  there  was  no  larceny.  If  therefore  a  man 
takes  the  horse  of  another  with  intent  to  ride  it  to  a  distance  and  not 
return  it,  but  quit  possession  of  it,  he  is  not  guilty  of  larceny.  So  in 
R.  V.  Webb,  in  whi(;h  the  intent  was  to  get  a  higher  reward  for  work 
from  the  owner  of  the  property.  If  the  intent  must  be  to  usurp  the 
entire  dominion  over  the  property,  and  to  deprive  the  owner  wholly  of 
it,  I  think  that  that  essential  part  of  the  offence  is  not  found  in  this 
case. 

Alderson,  B.     I  cannot  distinguish  this  case  from  R.  v.  Webb. 

Coleridge,  J.,  concurred. 

CoLTMAN,  J.  We  must  not  look  so  ranch  to  definitions,  which  it  is 
mpossible  aprioH  so  to  frame  that  they  shall  include  every  case,  as  to 
the  cases  in  which  the  ingredients  that  are  necessary  to  constitute  the 
offence  are  stated.  If  we  look  at  the  cases  which  have  been  decided, 
we  shall  find  that  in  this  case  one  necessary  ingredient  —  the  intent  to 
deprive  entirely  and  permanently  —  is  wanting. 

Co7iviction  reversed.^ 

i  Ace.  Rex  i;.  Webb,  1  Moo.  C.  C.  431 ;    Reg.  v.  Poole,  7  Cox  C.  C.  373.     Contra,. 
Fort  V.  State,  82  Ala.  50.  —  Ed. 


4=. 


SECT.  YI.]  EEGINA   V.    HALL.  927 

REGINA  V.   HALL. 
Crown  Cases  Reserved.      1849. 

[Reported  3  Cox  C.  C.  245.] 

The  followiug  case  was  reserved  by  the  Recorder  of  Hull :  — 

John  Hall  was  tried  at  the  last  P^piphany  Quarter  Sessions  for  the 
borough  of  Hull  on  an  indictment  charging  him  with  stealing  fat  and 
tallow,  the  property  of  John  Atkin. 

John  Atkin,  the  prosecutor,  is  a  tallow-chandler,  and  the  prisoner 
at  the  time  of  the  alleged  offence  was  a  servant  in  his  employment. 
On  the  morning  of  the  6th  of  December  last,  the  prosecutor,  in  conse- 
quence of  something  that  had  occurred  to  excite  his  suspicions,  marked 
a  quantity  of  butcher's  fat,  which  was  deposited  in  a  room  immedi- 
ately above  the  candle-room  in  his  warehouse.  In  the  latter  room  was 
a  pair  of  scales  used  in  weigliiug  the  fat,  which  the  prosecutor  bought 
for  the  purposes  of  his  trade.  At  noon  the  foreman  and  the  prisoner 
left  the  warehouse  to  go  to  dinner,  when  the  former  locked  the  doors 
and  carried  the  keys  to  the  prosecutor.  At  that  time  there  was  no  fat 
in  the  scales.  In  about  ten  minutes  the  prisoner  came  back  and  asked 
for  the  keys,  which  the  prosecutor  let  him  have.  The  prosecutor  watched 
him  into  the  warehouse  and  saw  that  he  took  nothing  in  with  him.  In 
a  short  time  he  returned  the  keys  to  the  prosecutor  and  went  away. 
The  prosecutor  then  went  into  the  candle-room  and  found  that  all  the 
fat  which  he  had  marked  had  been  removed  from  the  upper  room,  and 
after  having  been  put  into  a  bag  had  been  placed  in  the  scales  in  the 
candle-room.  The  prosecutor  then  went  into  the  street  and  waited 
until  a  man  of  the  name  of  Wilson  came  up,  who  was  shortly  followed 
by  the  prisoner.  The  latter  on  being  asked  where  the  fat  came  from 
that  was  in  the  scales,  said  it  belonged  to  a  butcher  of  the  uame  of 
Robinson  ;  and  Wilson,  in  the  prisoner's  presence,  stated  that  he  had 
come  to  weigh  the  fat  which  he  had  brought  from  Mr.  Robinson's. 
The  prosecutor  told  Wilson  that  he  would  not  pay  him  for  the  fat  until 
he  had  seen  Mr.  Robinson,  and  left  the  warehouse  for  that  purpose. 
Wilson  immediately  ran  away,  and  the  prisoner,  after  offering  to  tlie 
prosecutor's  wife  if  he  was  forgiven  to  tell  all,  ran  away  too,  and  was 
not  apprehended  until  some  time  afterwards,  at  some  distance  from 
Hull. 

I  told  the  jury  that  if  they  were  satisfied  that  the  prisoner  removed 
the  fat  from  the  upper  room  to  the  candle-room,  and  placed  it  in  the 
scales  with  the  intention  of  selling  it  to  the  prosecutor  as  fat  belong- 
ing to  Mr.  Robinson,  and  with  the  intention  of  appropriating  the 
proceeds  to  his  own  use,  the  offence  amounted  to  larceny. 
The  jury  found  the  prisoner  guilty. 

Dearsley,  for  the  prisoner.     There  was   no   larceny  in  this  case. 
The  offence  was  an  attempt  to  commit  a  statutable  misdemeanor,  and 


"^        1^  928  REGINA  V.    BEECHAM.  [CIIAP.  XII. 


i 


A 


ouly  punishable  as  such.     The  case  of  R.  v.  Holloway,  13  Cox  C.  C. 
241,  decides  it.    There  was  an  asportation,  but  no  intention  to  dispose 
^  ■       of  the  property,  for  it  was  part  of  the  very  scheme  that  the  owner 

V        V         should  not  be  deprived  of  his  property  in  the  fat.     There  must  to  con- 
stitute larceny  be  a  taking  with  intention  of  gain  and  of  depriving  the 
owner  of  the  property  forever.     The  last  ingredient  is  wanting  here. 
(He  cited  R.  v.  Morfit,  R.  &  R.  307.) 
^  "  Alderson,  B.     If  a  man  takes  my  bank  note  from  me,  and  then 

^       '^        brings  it  to  me  to  change,  does  he  not  commit  a  larceny? 

Bearsley.     A  bank  note  is  a  thing  unknown  to  the  common  law,  and 
therefore  the  case  put  could  not  be  larceny  at  common  law. 

Lord  Denman,  C.  J.  The  taking  is  admitted.  The  question  is 
whether  there  was  an  intention  to  deprive  the  owner  entirely  of  his 
property ;  how  could  he  deprive  the  owner  of  it  more  effectually  than 
by  selling  it?  To  whom  he  sells  it  cannot  matter.  The  case  put  of 
the  bank  note  would  be  an  ingenious  larceny,  but  no  case  can  be  more 
X  extreme  than  this. 

^        ^  ^  Parke,  B.     In  this  case  there  is  the  intent  to  deprive  the  owner  of 

O  "^  the  dominion  over  his  property,  for  it  is  put  into  the  hands  of  an 

>^  intended  vendor,  who  is  to  offer  it  for  sale  to  the  owner,  and  if  the 

owner  will  not  buy  it,  to  take  it  away  again.     The  case  is  distinguish- 
able from  that  of  R.  v.  Holloway  by  the  existence  of  this  intent,  and 
further  by  the  additional  impudence  of  the  fraud, 
y,  Alderson,  B.     I  think  that  he  who  takes  property  from  another 

^^     /"^  intends  wholly  to  deprive  him  of  it,  if  he  intend  tliat  he  shall  get  it 

y^    ^'  back  again  under  a  contract  by  which  he  pays  the  full  value  for  it. 

Coleridge,  J.,  and  Coltman,  J.,  concurred. 

Conviction  affirmed.^ 


REGINA  V.  BEECHAM. 
Oxford  Assizes.     1851. 

{Reported  5  Cox  C.  C.  181.] 

The  indictment  in  the  first  count  charged  the  prisoner  with  the 
larceny,  on  the  8th  of  February,  1851,  of  three  railway  tickets  of  the 
value  of  six  pounds  three  shillings,  and  three  pieces  of  pasteboard  of 
the  value  of  one  penny,  the  property  of  the  London  and  North  Western 
Railway  Company. 

In  a  second  count  the  tickets  were  described  as  the  propert}*  of  the 
station-master  at  the  Banbury  Road  station. 

It  appeared  in  evidence  that  the  prisoner  was  employed  b}'  the  rail- 
way company  as  a  porter  in  the  goods  department  of  the  Banbury 

1  Ace.  Reg.  V.  Manning,  6  Cox  C.  C.  86.  —  Ed. 


SF:CT.  VI.]  REGINA   V.    BEECHAM.  929 

Road  station.  On  the  evening  of  the  8th  of  February  he  was  drinking 
beer  at  the  station  with  a  witness  of  the  name  of  Hazell,  who  was  a 
horsekeeper  employed  at  the  station  by  an  innkeeper.  The  station- 
clerk  having  about  half-past  eight  o'clock  in  the  afternoon  left  his  office 
to  work  the  electric  telegraph  in  another  compartment  of  the  station, 
the  prisoner  went  into  the  ticket-office,  took  out  tliree  first-class  tickets 
for  the  journey  from  Banbury  Road  station  to  York,  and  stamped  them 
in  the  machine  for  the  "  8th  February."  The  last  train  for  York  for 
that  day  had  been  despatched  a  considerable  time,  and  the  prisoner 
tried  to  alter  the  stamping  machine  so  as  to  re-stamp  the  tickets  with 
anotlier  date,  but  failed  in  the  attempt.  He  then  gave  one  of  the  tickets 
to  Hazell,  saying,  ''There,  you  fool,  when  you  want  to  go  a  long 
journey  you  need  not  pay ;  come  here  and  do  this." 

Hazell  mentioned  the  circumstance  on  the  following  day  to  the 
station-clerk,  who  went  to  the  prisoner  and  taxed  him  with  the  offence, 
saying,  "You  have  railway  tickets  in  your  pocket."  Tiie  prisoner  at 
first  denied  it,  then  said  if  he  had  them  he  did  not  know  it,  and  eventu- 
ally took  the  two  tickets  from  his  pocket.  He  immediately  afterwards 
went  to  the  station-master  and  told  all  the  matter  to  him ;  the 
latter  said  the  prisoner  should  pay  for  the  tickets  or  be  reported.  A 
few  days  afterwards  he  was  suspended  from  his  employment  and  given 
into  custody  on  this  charge.  It  appeared  in  evidence  that  tickets 
stamped  for  one  day  might  be  re-stamped  for  another  day  and  so 
become  available. 

At  the  close  of  the  case  for  the  prosecution, 

Williams,  for  the  prisoner,  submitted  that  the  second  count  of  the  in- 
dictment could  not  be  sustained.  The  station-master  had  no  property 
in  the  tickets,  as  he  was  the  servant  of  the  railway  company,  and 
merely  had  the  custody  of  the  tickets. 

Patteson,  J.,  expressed  his  assent  to  that  proposition. 

Williams  then  objected  with  respect  to  the  first  count,  that  as  the 
prisoner  must  have  intended,  supposing  he  took  the  tickets  with  a  view 
to  their  use,  that  they  should  be  returned  to  the  company  at  the  end  of 
the  journev,  there  was  no  such  absolute  taking  away  without  an  inten- 
tion of  restoration  as  was  necessary  to  constitute  a  felony. 

Patteson,  J.,  said  his  opinion  was  that  it  was  a  question  for  the  jury 
to  say  whether  the  prisoner  took  the  tickets  with  an  intention  to  con- 
vert them  to  his  own  use  and  defraud  the  company  of  them. 

Williams  then  addressed  the  jury,  submitting  to  them  that  the  pris- 
oner took  the  tickets  in  a  foolish  incautious  way  as  a  joke,  and  without 
any  intention  whatever  to  defraud  the  company. 

The  learned  judge  in  summing  up  told  the  jury  that  if  the  prisoner 
took  the  tickets  with  intent  to  use  them  for  his  own  purposes,  whether 
to  give  to  friends  or  to  sell  them  or  to  travel  by  means  of  tliera, 
it  would  not  be  the  less  larceny  though  they  were  to  be  ultimately 
returned  to  the  company''  at  the  end  of  the  journey. 

Verdict,  not  guilty. 
59 


.    930  NELSON  V.   EEX.  [CHAP.  XII. 

NELSON  V.   REX. 
Judicial  Committee  of  the  Privy  Council.     1902. 
[Reported  1902,  A.  C.  250.] 

Appeal  from  a  conviction  by  the  above  Court  (Nov.  19,  1900)  on 
an  indictment  charging  the  appellant  with  unlawfull}'  and  fraudulent^' 
taking  and  applying  to  his  own  use  and  benefit  moneys  and  securities 
belonging  to  the  Dumbell's  Banking  Compan}-,  Limited,  of  which  he 
was  a  director,  and  against  the  sentence  of  five  years'  penal  servitude 
passed  upon  such  conviction  b}'  the  said  Court.  That  charge  was 
made  under  s.  218  of  a  Statute  of  the  Isle  of  Man  Legislature,  which 
section  is  as  follows :  — 

"  Whosoever  being  a  director,  member,  or  public  oflficer  of  any  body 
corporate  or  public  company  shall  fraudulently  take  or  apply  for  his 
own  use  or  benefit  or  for  any  use  or  purposes  other  than  the  use  or 
purposes  of  such  body  corporate  or  public  company  any  of  the  property 
of  such  body  corporate  or  public  company  shall  be  guilty  of  a  misde- 
meanor, and  being  convicted  thereof  shall  be  liable  at  the  discretion  of 
the  Court  to  any  of  the  punishments  which  the  Court  may  award  as 
hereinbefore  last  mentioned." 

The  charge  related  to  sums  drawn  upon  an  account  called  the 
"C.  B.  Nelson  Trust  Account"  between  April  5,  1887,  and  August  7, 
1892.  It  appeared  that  the  cheques  were  openly  drawn  at  tlie  head 
ofl^ce  at  Douglas  upon  this  account.  The  account  was  open  to  inspec- 
tion of  the  bank  officials,  and  was  returned  amongst  other  accounts, 
weekly  or  monthly,  to  the  head  offiice  in  Douglas  ;  and  in  the  returns 
the  name  of  the  account  and  its  total  amount  of  indebtedness  were  set 
forth. 

The  overdraft  on  this  account  was  for  the  purpose  of  the  purchase  of 
AUsopp's  Brewery  shares  ;  and  on  each  occasion  of  the  resale  of  these 
shares  the  amount  was  placed  to  the  credit  of  the  account,  and  up  to 
December,  1892,  moneys  were  paid  into  and  out  of  this  account. 

The  appellant  at  the  trial  put  in,  and  proved,  a  statement  shewing 
bis  financial  position  on  December  31,  1893  (more  than  sixteen  months 
after  the  drawing  of  the  last  cheque  set  out  in  the  indictment  upon 
which  he  was  convicted),  by  which  it  appears  that  at  that  time  the 
appellant's  assets  exceeded  his  total  liabilities  bv  the  sum  of  19,123^. 

Thereupon  Deemster  Shee  remarked,  "I  don't  see  the  materiality  of 
all  this.  It  does  not  matter  what  wealth  a  man  has  if  he  illegally  uses 
the  money  of  the  bank."  In  summing  up,  he  said:  ''Nelson  made 
a  strong  point :  how  could  he  have  been  fraudulent  when  he  took  these 
overdrafts;  he  was  solvent.  If  the  jury  thought  it  a  satisfactory 
answer  that  it  was  not  fraudulent,  it  was  their  duty  to  say  so,  and  he 
was  entitled  to  a  verdict  of  '  Not  guilty.'  But  that  was  a  dangerous 
doctrine.     Supposing   these  securities   had   been   deposited   with   the 


SECT.  VL]  nelson   V.  EEX.  931 

bank,  the  argument  would  have  been  stronger.  It  was  a  dangerous 
doctrine  to  allow  one  director  to  do  what  another  director  could  not ; 
even  though  he  thought  himself  solvent  though  he  was  not." 

The  jury,  after  being  absent  for  six  hours,  informed  the  Court  they 
were  divided  and  unable  to  come  to  a  verdict.  The  foreman  said, 
"  We  differ  on  what  in  this  case  constitutes  fraud  within  the  meaning 
of  the  law.  Some  of  the  jurors  are  of  opinion  the  defendants  were 
solvent  at  tlie  time  of  incurring  the  liabilities,  and  therefore  not  guilty 
of  fraud."  Deemster  Shee  thereupon  said,  "Is  that  the  only  difficulty 
you  have?"  and  the  foreman  replied,  "I  think  so,  practically." 
Whereupon  the  Deemster  gave  the  following  ruling:  — 

Deemster  Shee :  "  Well,  solvency  alone  would  not  be  sufficient  evi- 
dence they  were  not  guilty.  It  might  be  a  matter  for  3-ou  to  consider, 
but  in  my  opinion  solvency  alone  would  not  be  evidence  they  were 
not  guilty  of  fraud.  It  is  an  element  for  you  to  consider  whether 
there  was  fraud.  You  have  to  consider  the  whole  of  the  circumstances 
in  the  case :  the  date  of  the  account ;  the  fact  that  there  were  other 
overdrafts  of  the  defendants ;  the  size  of  the  overdrafts ;  the  way  in 
which  they  were  kept ;  and  the  account  the  prisoners  have  given  of 
how  they  embarked  in  these  transactions.  All  the  circumstances  in 
the  case  have  to  be  taken  into  your  consideration.  To  say,  simply 
because  one  of  the  defendants  was  solvent  that  therefore  he  could  not 
be  guilty  of  fraud,  would  not  be  right.  You  must  consider  about  the 
circumstances ;  and,  considering  the  importance  of  the  case,  I  should 
advise  his  Excellency  to  ask  you  to  retire  to  consider  your  verdict 
again." 

Finally  a  verdict  was  returned,  "  Guilty  on  the  Nelson  Trust  Ac- 
count only,"  with  a  recommendation  to  mercy. 
The  judgment  of  their  Lordships  was  delivered  by 
Lord  Halsbury,  Lord  Chancellor.  This  was  a  charge  against 
the  defendant  of  having  fraudulently  appropriated  to  his  own  use 
money  of  the  Dumbell's  Banking  Company.  Their  Lordships  are  of 
opinion  that  there  was  no  sufficient  legal  evidence  against  the  defend- 
ant of  that  offence,  and  under  those  circumstances  their  Lordships  will 
recommend  that  this  part  of  the  conviction,  the  only  one  on  which 
leave  to  appeal  has  been  given,  should  be  set  aside. 

It  is  irapossibe  not  to  notice  that  the  mode  in  which  the  question  has 
been  propounded  from  time  to  time,  both  by  counsel  and,  one  regrets 
to  say,  also  by  the  learned  Deemster  himself,  who  presided,  confuses 
what  is  the  nature  of  the  charge  made  with  the  general  charge  of 
irregularity  in  the  conduct  of  the  proceedings  of  the  bank.  That  is 
not  the  criminal  charge  which  was  preferred  by  the  indictment,  and 
which  ought  to  have  been  found  by  the  jury.  The  charge  was  of 
fraudulently  appropriating  money  of  the  bank. 

The  facts  sufficiently  shew  that  for  a  period  of  some  j'ears,  beginning 
at  all  events  as  early  as  1887,  and  going  down  to  1893,  the  person  con- 
victed was  in  the  habit  of  drawing  partly  upon  his  own  private  account 


932 


NELSON   V.   KEX.  [CII.VP.  XII. 


£ind  partly  on  an  account  which  was  called  a  trust  account,  but  still  in 
his  name,  and  that  from  time  to  time  that  account  was  operated  upon 
in  the  ordinary  and  natural  way  in  which  the  account  of  a  customer  of 
a  bank  is  treated.  Money  was  paid  in  and  money  was  paid  out,  at 
one  time  a  very  large  overdraft,  and  at  another  time  that  overdraft 
reduced  to  an  amount  of  something  like  SOOl.  or  AOOL,  down  to  the 
period  of  two  or  three  years  after  the  trust  account  had  first  begun. 
Then  it  is  suggested  that  after  a  period  of  six  years  altogether  has 
elapsed  it  is  possible  to  pick  out  some  of  the  earlier  drafts  that  have 
been  made  under  the  circumstances,  and  treat  a  particular  draft  as 
having  been  itself  an  offence — that  is  to  say,  a  misappropriation  of 
the  money  of  the  bank  to  the  use  and  purposes  of  the  person  who 
drew  it.  The  real  truth  is  that,  if  what  is  suggested  as  the  offence 
had  been  committed,  ever}'  cheque  was  itself  a  theft.  I  use  the  phrase 
compendiously,  because,  although  it  is  not  stealing  in  the  language  of 
the  statute,  the  elements  of  stealing  must  exist  in  it,  and,  in  order  to 
determine  wliether  this  offence  has  been  committed  in  the  sense  which 
the  law  requires  in  order  to  sustain  the  conviction,  one  must  see 
whether  it  is  true  to  sav  that  every  one  of  those  cheques  so  drawn,  and 
the  money  obtained  by  reason  thereof,  was  a  theft. 

Their  Lordships  are  of  opinion  that  tliere  was  no  legal  evidence  of 
an}'  such  proposition.  It  may  have  been  extremely  irregular,  and 
may  have  been  wrong,  and  was  wrong  under  the  circumstances,  of 
this  bank  to  allow  the  account  to  have  been  entered  into  at  all.  The 
board  ought  to  have  been  consulted,  and  the  board  ought  to  have 
given  its  consent  in  writing  that  such  an  account  should  be  entered 
into,  or,  at  all  events,  that  overdrafts  should  not  have  been  allowed  on 
it;  but  that  each  of  these  transactions  which  is  made  the  subject  of 
indictment  was  practically  a  stealing  of  the  money  obtained  by  the 
cheque  tliere  appears  to  be  no  evidence  whatever,  and  their  Lordships 
are  unable  to  see  that  the  question  was  ever  properly  before  the  jury 
at  all.  It  was  a  natural  and  proper  inquiry  by  the  juiT  which  they 
made  of  the  learned  Deemster,  wliether  or  not  they  ought  to  have 
some  guidance  as  to  what  was  a  fraud  within  the  meaning  of  the  law, 
because,  as  they  explained,  they  were  anxious  to  learn.  Some  of  them 
thought  there  could  be  no  fraud  at  the  time,  because  the  person  was 
solvent  who  was  drawing  these  cheques,  to  which  inquiry  no  answer 
apparently  was  given  by  the  learned  Deemster  in  the  language  which 
the  jury  required,  but  he  goes  on  to  say  that  it  is  not  conclusive  that 
the  defendant  was  not  guilty  because  he  was  solvent  —  an  entire  inver- 
sion, their  Lordships  regret  to  observe,  of  what  ought  to  have  been 
told  the  jury  at  the  time.  Strictly,  and  as  a  matter  of  verbal  accu- 
racy, indeed  it  is  not  conclusive  that  the  person  was  not  guilty;  but 
the  question  which  the  jurymen  obviously  desired  to  have  answered 
was  whether  or  not,  given  the  circumstances  of  this  case,  the  man 
being  perfectly  solvent  at  the  time  and  having  ample  assets  to  answer 
the  cheque  which  he  was  drawing,  thev  ought  to  infer  from  the  nature 


SECT.  VI.]        PEOPLE   EX   KELATIONE    PERKINS    V.    MORSE.  933 

of  the  transaction  that  it  was  a  taking  or  misappropriation  within  the 
meaning  of  the  statute.  Upon  that  it  is  impossible  to  say  the  jury 
received  any  guidance  whatever. 

In  the  result  their  Lordships  are  of  opinion  that  there  may  have 
been  ample  evidence  tliat  the  account  was  improperly  obtained,  and 
it  may  have  been  in  one  sense  fraudulently  obtained,  but  there  is  no 
evidence  justifying  the  charge  that  this  money  was  appropriated  to  the 
use  of  the  person  who  drew  the  cheque  in  fraud  of  the  right  of  the 
bank  to  have  the  money,  and  therefore  that  the  offence  contemplated 
by  the  statute  was  committed,  or  at  all  events  there  was  no  evidence 
of  its  being  committed  so  as  to  justify  the  verdict  of  "  guilty."  For 
these  reasons  their  Lordships  will  humbly  advise  His  Majesty'  that  the 
conviction  of  November  19,  1900,  should  be  set  aside. 

There  will  be  no  order  as  to  costs  against  the  Crown. 


PEOPLE  ex  relatione  PERKINS   v.  MORSE. 
Court  of  Appeals  op  New  York.     1907. 
[Reported  187  N.  Y.  410.] 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  Ma}'  25,  1906,  which 
reversed  an  order  of  Special  Term  dismissing  a  writ  of  habeas  corpus 
and  directed  the  discharge  of  the  relator  from  custod}-.^ 

Gray,  J.  ...  If  the  magistrate  issued  the  warrant  of  arrest  without 
sufficient  evidence  in  the  particular  case,  the  process  is  a  nullity.  The 
question,  always,  must  be  whether  the  magistrate  acquired  jurisdiction 
to  cause  an  arrest  of  the  person  and  the  court,  upon  the  habeas  corpus 
proceeding,  will  look  back  of  his  warrant  and  see  if  the  facts  stated  in 
the  depositions  of  the  prosecutor  and  his  witnesses  support  his  warrant. 
(Code  Crim.  Proc.  sec.  149  ;  Church  Hab.  Corp.  sec.  236.)  If  they 
did  not  furnish  reasonable  and  just  ground  for  a  conclusion  that  the 
crime  charged  had  been  committed  and  that  the  defendant  committed 
it,  then  jurisdiction  was  lacking  to  hold  the  prisoner  in  custod}'  for  any 
time.     (Code  Crim.  Proc.  sec.  150.) 

The  relator  had  the  absolute  right  to  question,  in  this  way,  the  suffi- 
ciency of  the  facts  laid  before  the  magistrate  to  constitute  the  crime  of 
larcen}-.  That  crime  is  defined  in  section  528  of  the  Penal  Code,  which 
reads,  as  far  as  material,  as  follows  :  "  A  person  who,  with  the  intent 
to  deprive  or  defraud  the  true  owner  of  his  property,  or  of  the  use  and 
benefit  thereof,  or  to  appropriate  the  same  to  the  use  of  the  taker,  or  of 
any  other  person,  .  .  .  having  in  his  possession,  custody,  or  control, 
as  a  bailee,  servant,  attorney,  agent,  clerk,  trustee,  or  officer  of  any 
person,  association,  or  corporation,  .  .  .  any  money,   property,   evi- 

^  The  detailed  statement  of  facts  is  omitted ;  the  facts  will  be  found  stated  iu  the 
opinions.     Part  of  eacli  opinion  is  omitted.  —  Ed. 


934  PEOPLE  EX   RELATIONE   PERKINS   V.   MORSE.        [CHAP.  XIL 

dence  of  debt  or  contract,  article  of  value  of  anj^  nature,  or  thing  in 
action  or  possession,  appropriates  the  same  to  his  ovvn  use,  or  that  of 
any  person  other  than  the  true  owner  or  person  entitled  to  the  benefit 
thereof,  steals  such  property,  and  is  guilty  of  larceny." 

It  is  apparent  that  what  constitutes  the  crime  of  taking  the  property 
of  another  for  the  use  of  the  taker,  or  of  that  of  any  other  person  than 
the  legal  owner,  is  the  intention  with  which  the  act  is  committed. 
Under  the  statute,  the  crime  of  larceny  no  longer  necessitates  a  tres- 
pass ;  but  it  does  need,  as  an  essential  element,  that  the  "  intent  to 
deprive  or  defraud "  the  owner  of  his  property,  or  of  its  use,  shall 
exist.  The  intent,  by  necessarj'  implication,  as  from  its  place  in  the 
penal  statute,  must  be  felonious  ;  that  is  to  say,  an  intent  without  an 
honest  claim  of  right.  It  is  not  now  essential,  as  it  was  under  the 
Roman  and  early  English  law,  that  the  intention  of  the  taker  shall  be 
to  reap  an}-  advantage  from  the  taking.  The  statute  makes  the  crime 
to  consist  in  the  intent  to  despoil  the  owner  of  his  property.  That  is 
necessary  to  complete  the  offence,  and  if  a  man,  under  the  honest  im- 
pression that  he  has  a  right  to  the  property,  takes  it,  it  is  not  larcen}' 
if  there  be  a  colorable  title.  (See  Code  Crim.  Proc.  sec.  548  ;  People 
V.  Grim,  3  N.  Y.  Cr.  Rep.  317;  Bishop's  Crim.  Law,  sees.  297,  851; 
Wharton's  Crim.  Law,  sees.  883,  884.)  The  charge  of  stealing  prop- 
erty is  only  substantiated  by  establishing  the  felonious  intent.  Without 
it  there  is  no  crime ;  for  it  would  be  a  bare  trespass.  It  is  the  criminal 
mind  and  purpose  going  with  tlie  act  which  distinguish  the  criminal 
trespass  from  a  mere  civil  injury.  (1  Hale's  P.  C.  50!);  McCourt  v. 
People,  64  N.  Y.  583.)  Doubtless,  if  the  particular  act  was  specified 
in  the  penal  statute,  an  honest  belief  that  it  was  right,  while  it  would 
purge  the  act  from  immoi-alit}-,  would  not  relieve  it  from  indictahility. 
But  when  there  is  no  statute  on  the  subject  and  the  act  is  not  one  which 
concerns  the  State  directly,  because  affecting  the  peace,  order,  comfort, 
or  health  of  the  communit}-,  then  the  wrong  done  is  private  in  its 
character  and  must  be  redressed  by  private  suit.  The  act  of  the  presi- 
dent of  the  insurance  company,  which  the  relator  may  be  regarded  as 
abetting  (Sec.  29,  Penal  Code),  that  is  the  contribution  of  corporate 
funds  for  the  purposes  of  a  political  campaign,  was  not  malum  pro- 
hibitum, or  a  prohibited  wrong ;  for  it  was  not  until  two  years  later 
that  it  was  made  a  misdemeanor  by  the  law  of  1906.  (L.  1906,  ch. 
239.)  The  legislature  may  make  that  criminal  which  was  not  so  before, 
but  we  may  not  reason  back  of  the  enactment  and  predicate  crime  of 
an  act  which  was  lacking  in  criminal  intent.  It  is  of  the  very  nature 
of  crime  that  the  criminal  act  shall  involve  the  violation  of  a  public  law, 
or  a  wrong,  which,  because  grossly  immoral  and  vicious,  affects  the 
public  injuriously. 

If  we  turn  then  to  a  consideration  of  the  facts,  upon  which  the  mag- 
istrate ordered  the  relator  to  be  arrested,  it  is  impossible,  reasonably 
speaking,  to  find  that  criminal  element  which  the  statute  makes  a  neces- 
sary one,  the  intent  of  the  accused  to  steal. 


SECT.  VI.]        PEOPLE   EX   RELATIONE   PERKINS   V.  MORSE.  935 

When  summed  up  the  evidence  amounts  to  this  :  that  the  president  of 
the  company,  in  whom  was  vested,  and  who  had  for  years  been  exercising, 
the  power  to  make  disbursements  of  the  corporate  funds  upon  his  sole 
authority,  had  agreed  that  the  insurance  company  would  contribute  to 
the  presidential  campaign  fund  of  the  Republican  national  committee 
up  to  the  amount  of  $50,000  and  tliat,  to  protect  the  company  against 
other  demands  for  political  purposes,  he  requested  the  relator,  one  of 
the  company's  trustees,  to  personally  carry  out  the  agreement  by  ad- 
vancing the  moneys.  The  relator  acquiesced  in  the  president's  request, 
advanced  the  money,  and,  subsequently,  the  president  brought  up  the 
subject  of  his  reimbursement  informally  before  a  full  attendance  of  the 
members  of  the  finance  committee  of  the  company.  The  president's 
purpose  was  not  that  the  finance  committee  should  take  official  action 
in  the  matter,  but  that  the  trustees  should  be  informed  of  what  he  had 
done,  and  that  he  might  have  their  opinions  upon  the  matter.  It  was 
the  general  opinion  that  the  president  should  cause  the  relator  to  be 
reimbursed  for  his  advances  out  of  the  corporate  funds.  The  facts 
stated  by  the  witnesses  showed  that  what  was  brought  before  this  body 
of  the  company's  trustees  was  the  claim,  or  right,  of  Mr.  Perkins  to  be 
repaid  the  moneys  which  he  had  paid  out  by  the  procurement  of  the 
president,  in  order  that  the  latter's  agreement  on  behalf  of  tlie  company 
might  be  carried  out,  and  that  the  president,  exercising  the  executive 
power,  with  which  he  appears  to  have  been  clothed,  directed  the 
treasurer  of  the  company  to  draw  the  check  for  the  amount  of  the 
relator's  claim.  Furthermore,  the  prosecution  in  making  use  before 
the  magistrate  of  the  relator's  letter  to  the  district  attorney  as  an  admis- 
sion of  the  facts  of  the  transaction  complained  of,  not  only  made  the 
fact  clear  that  the  moneys  were  paid  out  to  satisfy  the  relator's  claim, 
but,  also,  caused  it  to  appear,  affirmatively,  that  the  relator  had  acted 
in  the  honest  belief  tiiat  he  was  benefiting  the  company  and  had  derived 
no  personal  advantage.  The  magistrate  was  not  bound  to  accept  the 
letter  as  establishing  the  innocence  of  the  accused,  but  as  a  part  of 
the  evidence  used  to  make  out  the  charge,  he  had  his  statements  explain- 
ing the  transaction  and  stating  his  honest  motives.  It  was  equivalent 
to  his  examination. 

It  is  unquestionably  true  that  the  purpose  for  which  the  moneys  of 
the  company  were  promised  was  foreign  to  the  chartered  purposes  of  the 
corporation  ;  but  that  fact  does  not  make  the  payment  a  criminal  act. 
The  act  not  being  viahim  proliihltiDH^  nor  malum  in  se,  the  innocent 
motive  of  indirectly  promoting  the  corporate  afl'airs,  through  the  sup- 
posed advantage  of  the  continuance  in  power  of  the  Republican  admin- 
istration, purged  the  act  of  immorality,  and  it  lacked  the  criminal  intent. 
The  company  had  not  the  right,  under  the  law  of  its  existence,  to  agree 
to  make  contributions  for  political  campaigns  any  more  than  to  agree  to 
do  other  things  foreign  to  its  charter ;  but  it  had  capacity  to  make 
agreements,  if  not  prohibited  or  inherently  wicked.  Its  act  would 
aflect  the  interests  of  those  concerned  with  the  conduct  of  the  corporate 


936  PEOPLE    EX    EELATIOXE  PEKKINS   V.   MOKSE.         [CHAP.  XII. 

business  and  effect  a  private  wrong;  but  it  would  not  be  a  public 
offence,  or  illegal,  in  the  sense  of  violating  any  public  interest.  (Bis- 
sell  V.  M.  S.  &  N.  I.  R.  R.  Co.,  22  N.  Y.  258 ;  Holmes  v.  WiUard,  125 
ib.  75  ;  Moss  v.  Cohen,  158  ib.  240.)  If  making  the  agreement  to 
contribute  from  the  corporate  funds  was  an  illegal  act,  it  was  because 
of  the  limitations  upon  the  corporate  powers  and  not  because  of  con- 
siderations of  the  disadvantage  to  the  company  of  the  act.  There  are 
a  great  many  things  which  those  intrusted  with  the  management  of 
corporate  properties  are  known  to  do  and  which  they  ought  not  to  do, 
whatever  their  good  motives,  not  because  some  statute  forbids,  but 
because  they  are  not  within  the  scope  of  the  chartered  powers.  Their 
own  sense  of  rectitude  and  of  what  is  due  to  those  who  trust  them 
should  admonish  them  of  the  wrongful  nature  of  their  conduct.  It  has 
been  well  observed  that  the  ultimate  welfare  of  the  citizen  demands 
that  he  shall  conform  his  conduct  to  the  moral  law,  and  it  concerns  him 
that  every  one  else  should  conform  to  it.  A  moral  obligation  should  be 
none  the  less  authoritative  in  the  conduct  of  life  that  it  is  binding  only 
upon  the  conscience  of  the  person  as  a  duty,  and  is  imperfect  in  law 
from  the  absence  of  legal  sanction.  Courts,  however,  may  not  sit  to 
iudge  the  conduct  of  a  defendant  by  any  moral  code  or  rules  of  ethics. 
Their  sphere  is  to  ascertain  if  the  facts  shown  establish  the  crime 
charged  against  him.  In  the  facts  stated  in  these  depositions,  I  find 
none  upon  which  criminality  can  be  predicated.  Tiie  essential  element 
of  the  "intent  to  deprive  and  defraud"  is  nowhere  to  be  found,  and 
there  is  no  just  basis  for  the  inference.  There  was  no  concealment 
about  the  transaction,  and  knowledge  of  it  was  conveyed  to  the  other 
trustees.  That  the  relator  may  have  made  a  mistake  of  law,  which  will 
not  relieve  him  from  liability  in  a  civil  action,  may  be  true,  and  he 
expressly  disclaimed  in  his  letter  any  intention  to  dispute  such  a 
liability  ;  but  this  was  a  case  where  the  intent,  or  good  faith,  was  in 
issue  and  then  knowledge  of  the  law  is  immaterial.  (Knowles  v.  City 
of  N.  y.,  176  N.  Y.  at  p.  439  ;  Goodspeed  v.  Ithaca  St.  Ry.  C,  184 
ib.  at  p.  354.)  The  relator  came  to  the  aid  of  the  president  of  the  com- 
pany who,  as  such,  had  agreed  to  contribute  moneys  to  the  campaign 
fund,  and  advanced  the  moneys  temporarily.  Having  done  so,  for  no 
other  reason  than  for  the  supposed  advantage  of  the  company,  his 
claim  to  be  reimbursed  from  the  treasury  of  the  company  is  openly 
presented  and  it  is  paid.  But  within  the  spirit,  if  not  the  letter,  of 
section  548  of  the  Penal  Code,  that  was  not  larceny.  The  section  pro- 
vides that  "  upon  an  indictment  for  larceny  it  is  a  sufficient  defence 
that  the  property  was  appropriated  openly  and  avowedly,  under  a  claim 
of  title  preferred  in  good  faith,  even  though  such  claim  is  untenable." 
This  section  is  an  expression  of  the  emphasis  which  the  statute  lays 
upon  the  intent  with  which  the  property  of  another  is  taken.  It  is  a 
qualification  of  the  provisions  of  section  528  of  the  Penal  Code,  defining 
what  shall  constitute  the  crime  of  larceny.  It  is  of  considerable  sig- 
n  ficance,  as  illustrating  the  legislative  understanding,  that  when,  in 


SECT.  VI.]         PEOPLE   EX   RELATIONE    PERKINS    V.    MORSE.  937 

1906,  the  legislature  dealt  with  the  question  specifically  the  offence  was 
declared  to  be  a  uiisdemeanor,  not  a  larceny. 

The  question  in  this  case  was  whether  the  facts  evidenced  the  com- 
mission of  a  crime,  and  that  was  a  question  of  law,  which  went  to  tlie 
jurisdiction  of  the  magistrate.  They  showed  that  the  design  to  injure, 
the  motive  to  despoil  the  company',  the  wrongful  purpose,  were  all  lack- 
ing in  the  information  which  was  laid  before  the  magistrate,  and  upon 
which  the  warrant  issued.  This  being  so,  the  act  of  the  magistrate  was 
whoU}-  without  jurisdiction,  and  the  warrant  and  all  proceedings  under 
it  were  absolutely  void.  (Hewitt  v.  Newberger,  141  N.  Y.  538,  543). 
For  these  reasons  I  advise  the  affirmance  of  the  order  appealed  from. 
HiscocK,  J.  I  concur  with  Judge  Gray  in  the  affirmance  of  the 
order  appealed  from. 

Stripped  of  any  collateral  and  immaterial  considerations,  such  as 
that  of  the  consequences  which  may  result  to  the  magistrate  issuing  a 
warrant  without  any  legal  basis  therefor,  the  naked  question  is  whether 
an}'  evidence  was  presented  to  such  magistrate  which  showed  reason- 
able ground  for  believing  that  the  defendant  had  committed  the  crime 
of  larcenj'.  Unquestionably  if  there  was  no  evidence  justifying  the 
inference  of  such  guilt,  the  magistrate  was  without  jurisdiction  and  the 
relator  should  be  discharged. 

This  court  seems  to  be  wholl}'  or  practically  unanimous  in  the  opin- 
ion that  the  evidence  presented  to  the  magistrate  would  not  be  sufficient 
to  sustain  a  conviction  of  the  defendant  for  the  alleged  crime,  and  that 
he  should  be  discharged  if  convicted  thereon.  The  nature  of  this 
case,  the  attention  which  it  has  received,  and  the  facts  and  circum- 
stances disclosed  render  not  at  all  violent  the  presumption  that  the 
district  attorney  has  now  presented  all  tlie  evidence  within  his  reach, 
and,  therefore,  it  is  quite  probable  that  the  really  practical  question 
involved  is  whether  the  relator  shall  be  discharged  at  the  present  or  at 
a  subsequent  stage  of  the  proceedings.  But  however  this  may  be,  it 
will  be  conceded,  as  is  argued  in  behalf  of  the  appellants,  that  if  even 
a  slight  degree  of  evidence  of  the  relator's  guilt  was  produced  —  "  some- 
thing upon  which  the  judicial  mind  was  called  upon  to  act  in  determin- 
ing the  question  of  probable  cause,"  the  magistrate  had  jurisdiction, 
the  warrant  was  valid  and  the  order  appealed  from  should  be  reversed. 
We  are  all  agreed  upon  certain  fundamental  principles  pertaining  to 
this  case.  The  contribution  by  the  president  of  the  New  York  Life 
Insurance  Company  from  its  funds  of  $50,000  to  a  political  campaign 
committee,  even  in  the  absence  of  any  statutory  prohibition,  was  abso- 
lutely beyond  the  purposes  for  which  that  corporation  existed,  and  was 
wholh'  unjustifiable  and  illegal.  And  while  the  contribution  was  sug- 
gested and  made  by  the  authority  and  direction  of  the  president  of  the 
company  rather  than  by  the  relator,  still  the  latter  was  so  a  party  to 
the  execution  of  the  act  that  he  must  be  regarded  as  having  aided  and 
abetted  it,  and,  therefore,  is  criminally  responsible  if  the  crime  was 
committed. 


938  PEOPLE   EX  EELATIONE   PERKINS   V.   MORSE.      [CHAP.  XII. 

Further  than  this,  the  assumption  will  be  made  without  critical 
analysis  of  its  correctness  in  all  respects,  that  because  the  relator 
understood  when  he  advanced  his  own  funds  to  Mr.  Bliss  that  the  same 
would  be  repaid  to  him  with  moneys  of  the  corporation,  he  was  from 
the  beginning  a  party  to  the  plan  to  appropriate  such  corporate  funds 
to  an  unauthorized  purpose,  and  that,  therefore,  when  payment  was 
made  to  him  he  did  not  occupy  the  position  of  a  bona  fide  though  mis- 
taken claimant,  and  does  not  come  within  those  provisions  of  section 
548  of  the  Criminal  Code  which  provide  that  it  is  a  defence  to  an  indict- 
ment for  larceny  "  that  the  property  was  appropriated  openly  and 
avowedly  under  a  claim  of  title  preferred  in  good  faith,  even  though 
such  claim  is  untenable." 

But,  confessedly,  these  facts  and  considerations  alone  are  insufficient 
to  justify  the  charge  which  has  been  laid  against  the  relator.  At  the 
time  of  his  arrest  there  was  no  statute  making  the  contribution  of  cor- 
porate funds  to  political  purposes  of  itself  a  crime,  and,  therefore,  there 
must  be  some  evidence  that  the  relator  in  doing  what  he  did  was 
actuated  by  a  felonious,  criminal  intent.  It  is  agreed  upon  all  sides 
that  the  crime  of  larceny  may  not  be  committed  unintentionally,  uncon- 
sciously or  by  mistake,  but  that  in  order  to  accomplish  it  the  perpe- 
trator must  have  the  intent  referred  to.  It  may  be  difficult  at  all  times 
exactly  and  satisfactorily  to  deQne  this  intent,  but  the  requirement  for 
it  as  applicable  to  this  case  means  that  when  the  relator  took  part  in 
the  appropriation  of  the  moneys  in  question,  he  must  have  had  in  some 
degree  that  same  conscious,  unlawful,  and  wicked  purpose  to  disregard 
and  violate  the  property  rights  of  another  which  the  ordinary  burglar 
has  when  he  breaks  into  a  house  at  night  with  the  preconceived  design 
of  stealing  the  property  of  its  inmates.  There  is,  as  there  ought  to  be 
in  the  absence  of  statutory  enactment,  a  long  distance  between  the  act 
which  is  unauthorized  and  illegal,  and  which  subjects  the  trespasser  to 
civil  liability,  and  the  one  which  is  really  wicked  and  criminal  and 
which  subjects  the  offender  to  imprisonment.  It  is  on  this  point  of 
criminal  intent  that  I  think  the  district  attorney  has  failed  to  furnish 
any  evidencf  whatever  on  which  the  magistrate  might  act,  although  the 
burden  affirmatively  rested  upon  him  so  to  do. 

At  the  outset  it  must  be  borne  in  mind  that  some  of  the  circumstances 
which  surround  this  charge  are  merely  accidental  and  superficial,  and 
not  at  all  decisive.  The  fact  that  this  contribution  was  made  by  the 
officers  of  one  of  those  corporations  whose  management  recently  has 
been  sulijected  to  grave  criticism,  and  even  that  it  was  made  for  a  pur- 
pose properly  subjected  to  condemnation  and  now  absolutely  prohibited, 
are  of  no  legal  significance.  However  public  opinion  or  ethics  might 
distinguish  them,  the  legal  principles  which  control  the  consideration 
of  this  case  are  the  same  which  would  be  applicable  if  the  president  of 
a  manufacturing  corporation  had  contributed  from  its  funds  toward  the 
erection  of  a  church  supposed  to  be  for  the  benefit  of  its  employees,  or 
the  officers  of  a  railroad  company  had  contributed  its  funds  or  the  use 


SECT.  VI.]        PEOPLE   EX  RELATIONE   PEKKINS   V.   MORSE.  939 

of  its  property  and  transportation  facilities  for  the  temporary  relief  of 
the  sufferers  from  some  sudden  and  great  calamity.  We  probably 
should  be  compelled  to  say  in  each  case  that  the  contribution  was 
beyond  the  purposes  of  the  corporation  and  unauthorized  and  illegal, 
and  the  officers  making  the  same  civilly  liable,  but  it  certainly  would  be 
a  matter  of  grave  import  to  hold,  in  the  absence  of  something  else, 
that  they  might  be  prosecuted  for  stealing. 

It,  therefore,  seems  to  me  that  we  are  justified  in  scrutinizing  with 
care  the  depositions  presented  to  the  magistrate  for  the  purpose  of  ascer- 
taining whether  they  do  in  fact  disclose  any  intent  to  commit  a  crime. 

These  facts  are  all  established  and  must  be  accepted  by  the  prosecu- 
tion as  true,  and  there  is  wanting  every  one  of  those  circumstances  of 
personal  gain,  furtive  secrec}'  in  the  commission  of  the  act  and  of  con- 
cealment after  commission  which,  as  essential  elements,  ordinarily 
attend  the  crime  of  larceny-,  and  if  there  is  any  evidence  here  of  a 
criminal  intent,  it  is  found  simply  and  solely  in  the  fact  that  the  officers 
of  the  corporation  have  contributed  some  of  its  funds  to  an  unauthor- 
ized purpose.  As  already  indicated  it  does  not  seem  to  me  that  this 
fact  is  sufficient  to  sustain  the  burden  thus  cast  upon  it. 

In  McCourt  v.  People  (64  N.  Y.  583)  the  plaintiff  in  error  stopped  at 
a  house  and  asked  the  daughter  of  the  owner  for  a  drink  of  cider,  offer- 
ing to  pay  for  it.  She  refused  to  let  him  have  it,  and  he  thereupon 
opened  the  cellar  door,  and,  although  forbidden  to  do  so  by  her,  went  in 
and  drew  some  cider.  He  was  indicted  for  burglary  and  larceny,  and 
it  was  held  that  the  trial  court  committed  error  in  refusing  to  direct  his 
acquittal.  It  was  said  :  "  Every  taking  by  one  person  of  the  personal 
property  of  another  without  his  consent  is  not  larceny ;  and  this, 
although  it  was  taken  without  right  or  claim  of  right,  and  for  the  pur- 
pose of  appropriating  it  to  the  use  of  the  taker.  Superadded  to  this, 
there  must  have  been  a  felonious  intent,  for  without  it  there  was  no 
crime.  It  would,  in  the  absence  of  such  an  intent,  be  a  bare  trespass, 
which,  however  aggravated,  would  not  be  a  crime.  It  is  the  criminal 
mind  and  purpose  going  with  the  act  which  distinguishes  a  criminal 
trespass  from  a  mere  civil  injury."  And  then  further,  as  applicable 
to  the  particular  circumstances  of  that  case,  "There  was  not  only 
an  absence  of  the  usual  indicia  of  a  felonious  taking,  but  all  of  the 
circumstances  proved  are  consistent  with  the  view  that  the  transaction 
was  a  trespass  merel}'.  To  find  this  transaction  a  larceny  it  is  neces- 
sary to  override  the  ordinary  presumption  of  innocence  and  to  reject  a 
construction  of  the  prisoner's  conduct,  which  accounts  for  all  the 
circumstances  proved  without  imputing  crime,  and  to  impute  a  criminal 
intention  in  the  absence  of  the  ear  marks  which  ordinarily  attend  and 
characterize  it." 

It  is  true  that  this  was  said  with  reference  to  the  evidence  produced 
upon  a  trial,  but  a  decision  denying  as  matter  of  law  to  given  facts  the 
requisite  probative  force  must  be  applicable  at  any  other  stage  where 
there  is  need  for  such  proof. 


940  PEOPLE   EX  RELATIONE   PERKINS   V.    MORSE.     [CHAP.  XII. 

CuLLEN,  C.  J.   .  .  .  Something  is  also  said  in  the  opinion  below  of 
the  beneficent  character  of  the  purpose  to  which  the  moneN-  was  appro- 
priated.    Of  that  we  can  hardly  take  judicial  notice.     Probabl}'  at  all 
times  it  would  be  regarded  as  beneficent  in  Vermont  and  maleficent 
in  Geoigia,  while  in  New  York  its  character  would  var\'  from  year  to 
3'ear.     The  meritorious  character  of  the  object  to  which  the  money  was 
appropriated  has  no  bearing  on  the  question  of  larceny.     Tlie  gist  of 
that  offence  is  not  the  apphcation  of  money  to  a  bad  purpose,  but 
taking  money  that  does  not  belong  to  the  taker  to  appropriate  to  an 
object  good  or  bad.     It  is  the  fraudulent  deprivation  of  an  owner  of  his 
propert}'  that  constitutes  larcen}-.     It  is  a  crime  to  steal,  even  though 
with  the  intent  to  give  away  in  charity  and  relieve  distress.     (Regina 
V.  White,  9  C.  &  P.  434.)     I  do  not  assert  tliat  it  is  immaterial  which 
part}'  is  in  control  of  the  government  of  the  nation,  and  that  the  subject 
is  a  matter  of  indifference  to  the  citizen.     If  tliis  were  so,  the  profession 
of  political  faith  would  be  mere  hypocrisy.     If  the  citizen,  with  his 
own  means,  contributes  to  legitimate  political  expenses  to  se'cure  the 
success  of  the  part}'  which  lie  deems  will  most  inure  to  the  welfare  of 
the  nation,  his  action  is  laudable,  and  even  if  the  inducement  be  the 
belief  that  the  success  of  that  party  will  inure  to  the  advancement  of 
his  personal  interest,  as  distinguished  from  that  of  the  country  at  large, 
it  maj-  be  justifiable  ;  but  to  apply  the  money  of  another  without  his 
consent  to  such  an  object  is  neither  laudable  nor  justifiable,  but  dis- 
honest.    The  money  given  to  Bliss  belonged  neither  to  the  president 
nor  to  the  relator,  but  was  simpl}-  in  their  custody.     Its  legal  owner 
was  the  artificial  being,  the  corporation  ;  its  beneficial  owners  were  the 
policy-holders.     With  the  immense  business  carried  on  by  the  corpora- 
tion, policies  issued  in  ever}'  part  of  the  country  and  to  persons  of  every 
political  party,  both  the  relator  and  the  president  must  have  well  known 
that  the  universal  assent  of  the  policy-holders,  the  only  thing  wiiich  could 
have  justified,  even  morally  (not  legally),  the  payment  to  Bliss,  could 
never  be  obtained  and  that  at  all  times  a  substantial  minority  would  be 
opposed  to  such  payment.     But  though  there  was  an  illegal  misajjpro- 
priation  of  the  corporate  funds  by  the  relator,  this  does  not  necessarily 
prove  that  he  was  guilty  of  larceny.     It  may  have  been  simply  a  tres- 
pass for  which  he  is  only  civilly  liable.     I  agree  with  Judge  Gray  that 
to  constitute  larceny  there  must  be  what  is  termed  a  felonious  intent, 
but  we  do  not  make  progress  towards  the  determination  of  the  question 
before  us  unless  we  ascertain  what  is  a  felonious  intent.     Tiie  question 
has  given  rise  to  much  discussion  in  text  books  and  in  judicial  opinions. 
Whether  "intent"  is   the  proper  term  to  employ  may  be  doubted. 
Though  a  man  may  commit  many  statutory  offences  unwittingly,  no 
one  can  become  a  thief  or  an  embezzler  accidentally  or  by  mistake. 
To  constitute  the  offence  there  must  be  in  the  perpetrator  the  con- 
sciousness of  the  dishonesty  of  the  act.     This,  however,  as  frequently 
turns  on  the  knowledge  or  belief  of  the  party  as  to  his  authority  as  on 
his  intent  regarding  the  disposition  of  the  property.     It  is  Dot  neces- 


SECT.  VI.]        PEOPLE   EX   RELATIONE   PERKINS   V.   MORSE.  941 

sary  either  nt  common  law  or  under  the  statute  that  tlie  intent  should 
be  the  profit  of  the  taker,  for  as  already  said,  it  is  theft  to  take  prop- 
erty to  give  away  as  well  as  to  keep  for  oneself.     In  the  present  case 
no  one  will  doubt  that  had  a  clerk  taken  from  the  company's  till  a  sura 
of  money  to  give  to  the  Republican  club  of  his  ward,  it  would  have 
been  larceny.     Whatever  distinction  there  may  be  between  the  hypo- 
thetical case  and  that  of  this  relator  does  not  lie  in  the  object  for  which 
the  moneys  were  appropriated,  for  that  in  each  case  would  be  the  same, 
but  in  the  difference  between  the  authority  over  the  corporate  funds 
possessed  by  the  mere  clerk  and  by  the  president  and  vice-president. 
The  clerk,  of  course,  would  know  that  he  had  no  authority  to  so  divert 
the  corporate  funds ;  the  president  and  the  relator  might,  though  the}' 
should  have  known  to  the  contrary,  possibly  have  entertained  a  dif- 
ferent view  on  the  subject.     This  bilngs  us  to  the  real  and,  to  my 
mind,  the  only  question  in  this  case.     As  has  been  already  said,  the 
relator  and  the  president  of  the  company,  without  the  authority  of  the 
corporation  and  knowing  that  all  the  beneficial  owners  would  never 
assent  to  the  act,  took  the  moneys  of  the  company  without  considera- 
tion and  appropriated  them  to  the  exclusive  use  of  a  third  party.     The 
relator  must  be  presumed  to  have  known  the  law  and  to  have  intended 
the  natural  consequences  of  his  acts,  which  was  to  deprive  the  company 
of  the  monc}'.     If  he  knew  the  illegality  of  his  act  and  his  intention  was 
solely  to  benefit  either  Mr.  Bliss  personally  or  the  political  organization 
which  he  represented,  then  he  was  guilty  of  larcen}-.     If,  however,  as 
asserted  in  his  statements  to  the  district  attorney,  he  believed  that  tlie 
expenditure  would  be  for  the  benefit  of  the  company'  and  that  the  presi- 
dent had  the  power  to  make  the  same,  then,  however  mistaken  on  the 
subject,  he  was  not  guilty.     This  was  necessarily  and  properly  a  ques- 
tion of  fact  to  be  determined  by  the  magistrate,  not  one  of  law.    Though 
the  prosecution  put  in  evidence  before  the  magistrate  the  written  state- 
ment of  the  relator,  the  magistrate  was  at  liberty  to  believe  it  or  to 
reject  it  in  whole  or  in  part.     (People  v.  Van   Zile,  143  N.  Y.  368  ; 
Becker  v.  Koch,  104  id.  394;  President,  etc.,  Manhattan  Co.  v.   Phil- 
lips, 109  id.  383.)     The  indirect  method  in  which  the  payment  to  Bliss 
was  made  and  the  fact  concealed  by  having  the  mone\'  in  the  first  in- 
stance advanced  by  the  relator  instead  of  by  the  company,   and   the 
method  in  which  the  relator  was  reimbursed  bj'  a  check,  not  to  him 
personally,  but  to  the  order  of  J.  P.  Morgan  &  Corapanj',  a  banking 
firm  with  which  the  corporation  may  have  large  legitimate  dealings, 
easts  suspicion  on  the  good  faith  of  the  relator,  and  might  be  considered 
by  the  magistrate  as  militating  against  him.     The  explanation  of  this 
course  offered  by  the  relator,  that  it  was  to  relieve  the  president  from 
solicitations  from  other  political  parties,  might  also  be  discredited.     It 
is  difficult  to  imagine  how  the  representatives  of  other  parties  would 
have  access  to  the  companj^'s  books ;  nor  would  the  scheme  of  pay- 
ment enable  the  officers  of  the  company  when  solicited  to  say  that  the 
company  had  made  no  contributions  to  other  parties,  because  such  an 


942  PEOPLE   EX   KELATIONE    PERKINS   V.   MORSE.      [CHAP.  XII. 

answer  would  be  as  essentially  a  falsehood  as  if  the  money  had  been 
paid  by  the  company  in  tlie  first  instance.  The  concealment  of  the 
payment  as  described  would  warrant  the  magistrate  in  finding  that  the 
parties  were  conscious  of  wrongdoing  in  making  it  and  feared  exposure. 
The  relator  asserts  that  he  was  ignorant  of  the  character  of  the  entries 
made  in  the  company's  books,  and  there  is  no  proof  to  the  contrary  of 
this  statement.  But  he  must  have  known  that  the  cheque  to  pay  him 
was  drawn,  not  to  himself,  but  to  Morgan  &  Company.  On  the  other 
hand,  there  is,  doubtless,  to  be  considered  in  the  relator's  favor  the  fact 
that  he  made  no  pecuniary  profit  by  the  transaction,  and  that  he  after- 
wards openly  admitted  his  participation  in  it.  All  this,  however,  merel}' 
raised  a  question  of  fact  to  be  passed  on  by  the  magistrate,  with  whose 
determination  other  courts  cannot  interfere  in  this  proceeding.  .  .  .^ 

O'Brien  and  Edward  T.  Bartlett,  JJ.  ,  concur  with  Gray  and  His- 
cocK,  JJ. ;  Chase,  J.,  concurs  with  Cullen,  Ch.  J.,  and  Werxer,  J. 

Order  affirmed. 

1  Werner,  J.,  delivered  a  dissenting  opinion.  —  Ed. 


SECT  VII.]  KEX  V.   FRANCIS.  943 

SECTION  VII. 

Aggravated  Larceny. 
(a)  Robbery  and  Larceny  from  the  Person. 

REX   V.   FRANCIS. 
King's  Bench.  1735. 

[^Reported  2  Strange,  1015.] 

The  defendants  were  indicted  at  the  Assizes  in  Somersetsiiire,  for 
that  they  feloniously^  made  an  assault  on  Samuel  Cox  in  the  king's 
highway,  and  put  him  in  fear,  and  £9  in  money  from  the  person  of 
Cox  did  take,  steal,  and  carry  away.  Upon  not  guilty  pleaded  by  all 
the  defendants,  the  jury  find  this  special  verdict  :  — 

That  Samuel  Cox  travelling  on  horseback  on  the  king's  highway  to 
Somerton  Fair,  on  a  place  called  King's  Down  Hill  in  the  county  of 
Somerset,  saw  all  the  prisoners  in  company  together,  one  of  whom  was 
then  lying  on  the  ground  ;  that  Cox  passed  by  them,  and  one  of  them 
(but  which  the  jury  do  not  know)  called  to  Cox,  and  desired  him  to 
change  half  a  crown,  that  they  might  give  something  to  a  poor  Scotchman 
then  lying  on  the  ground,  who  was  one  of  the  prisoners.  Cox  came 
back,  and  putting  his  hand  in  his  pocket  to  pull  out  his  monej'  in  order 
to  give  them  change  as  they  desired,  he  pulled  out  four  moidores  and  a 
Portugal  piece,  value  £3,  12  s.,  and  having  the  pieces  of  gold  in  his 
hand,  John  Francis,  one  of  the  prisoners,  gently  struck  Cox's  hand,  in 
which  he  held  the  gold,  by  means  whereof  the  gold  fell  on  the  ground  ; 
that  thereupon  Cox  got  off  from  his  horse,  and  said  to  the  prisoners 
that  he  would  not  lose  his  money  so ;  and  the  said  Cox  then  and  there 
offering  to  take  up  the  pieces  of  gold,  which  were  then  upon  the  ground, 
and  in  Cox's  presence  ;  the  prisoners  then  and  there  swore  that  if  he 
touched  the  pieces  of  gold  they  would  knock  his  brains  out ;  whereby 
he  was  then  and  there  put  in  bodily  fear  of  his  life,  and  then  and 
there  desisted  from  taking  up  the  pieces  of  gold.  That  the  prisoners 
then  and  there  immediately  took  up  the  gold,  and  got  on  their  horses, 
and  rode  off  with  the  gold ;  that  Cox  immediatel}'  thereupon  pur- 
sued them,  and  rode  after  them  for  about  half  a  mile ;  and  then  the 
prisoners  struck  him  and  his  horse,  and  swore  that  if  he  pursued  them 
any  farther  they  would  kill  him  ;  b}'  reason  of  which  menace  he  was 
afraid  to  continue  his  pursuit  any  farther ;  but  whether  upon  the  whole 
matter  the  prisoners  are  guilty  of  the  felony  and  robbery  charged  on 
them  the  jury  doubt,  and  praj'  the  advice  of  the  court.     Et  si,  &c} 

^  Upon  a  second  argument  it  was  determined  that  the  special  verdict  did  not  state 
with  sufficient  certainty  whether  the  taking  wasin  the  presence  of  the  prosecutor. —  Ed. 


944  KEGINA   V.    SELWAY.  [CHAP.  XII. 

This  special  verdict  and  the  prisoners  were  removed  into  the  King's 
Bench,  where  it  was  twice  argued  at  the  bar.  And  upon  the  first  argu- 
ment the  only  question  was,  whether  a  taking  in  the  presence  be  in 
point  of  law  a  taking  from  the  person,  and  it  was  unanimously  deter- 
mined that  it  was.^ 


REGINA  V.   SELWAY. 
Central  Criminal  Court.     1859. 

[Reported  8  Cox  C.  C.  235.] 

The  prisoners  were  indicted  for  robbery  and  stealing  from  the  per- 
son.^  The  evidence  showed  that  the  prosecutor,  who  was  paralyzed, 
received,  while  sitting  on  a  sofa,  in  a  room  at  the  back  of  his  shop,  a 
violent  blow  on  the  head  from  one  of  the  prisoners,  whilst  the  other 
went  to  a  cupboard  in  the  same  room,  and  stole  therefrom  a  cash  box, 
witli  which  he  made  off. 

Orridge,  for  the  prisoners,  submitted  that  on  this  evidence  there 
was  no  proof  of  a  stealing  from  the  person.  The  cash  box  at  the  time 
it  was  stolen  was  at  some  distance  from  the  place  where  the  prosecutor 
was  sitting,  and  could  not  be  said,  therefore,  to  be  about  his  person. 

Jiobi/tso?i,  for  the  prosecution,  contended  that  it  was  quite  suffi- 
cient for  the  purposes  of  the  indictment  to  show  that  the  cash  box  was 
under  the  protection  of  the  prosecutor ;  it  need  not  be  in  his  bodily 
possession.  He  was  near  enough  to  it  to  protect  it,  at  least  by  raising 
an  alarm.  It  was  laid  down  in  1  Hale  P.  C.  533,  "  If  a  thief  put  a  man 
in  fear,  and  then  in  his  presence  drive  away  his  cattle,  it  is  a  robbery. 
So,  if  a  man  being  assaulted  by  a  robber  throw  his  purse  into  a  bush, 
or  flying  from  a  robber  let  fall  his  hat,  and  the  robber  in  his  presence 
take  up  the  purse  or  hat  and  carry  it  away,  this  would  be  robber}'." 

The  Common  Sergeant,  having  consulted  Mr.  Justice  Crowder  and 
Mr.  Baron  Channell,  held  that  although  the  cash  box  was  not  taken 
from  the  prosecutor's  person,  3*et  it  being  in  the  room  in  which  he  was 
sitting,  he  being  aware  of  that  fact,  it  was  virtually  under  the  pro- 
tection of  his  person.  He  should  under  the  circumstances  leave  this 
question  to  the  jury :  Was  the  cash  box  under  the  protection  of  the 
prosecutor's  person  at  the  time  when  it  was  stolen? 

The  jury  found  that  it  was.  Guilty.^ 

1  Ace.  U.  S.  V.  Jones,  3  Wash.  C.  C.  209,  216.  See  Clements  v.  State,  84  Ga. 
660;  State  v.  Calhoun,  72  la.  432.  — Ed. 

■''  "  Whosoever  shall  rob  any  person,  or  shall  steal  anv  chattel,  money,  or  valuable 
security  from  the  person  of  another,  shall  be  guilty  of  felony."  24  &  25  "Vict.  c.  96,  a 
40,  re-enacting  7  Wm.  IV.  and  1  Vict.  c.  87,  s.  5.  —  Ed. 

»  See  Com.  v.  Dimond,  3  Cushing,  235.  —  Ed. 


SECT,  VII.]  COMMONWEALTH    V.   HARTNETT.  945 

SECTION   VII.     (continued.) 
(b)  Larceny  from  a  Building.        ^~f~ 

COMMONWEALTH   v.   HARTNETT. 
Supreme  Judicial  Court  of  Massachusetts.     1855. 

[Reported  3.,Gray,  450.] 

Indictment  on  St.  1851,  c.  156,  §  4,  for  larceny  in  a  building  of 
Timothy  Hartnett.  At  the  trial  in  the  municipal  court,  it  appeared 
that  the  said  Timothy  was  the  husband  of  the  defendant ;  and  the 
defendant  contended  that  she  could  therefore  be  convicted  of  simple 
larceny  only.  But  Hoar,  J.,  ruled  that  the  evidence  was  sufficient  to 
sustain  the  charge  of  larceny  in  a  building.  And  to  this  ruling  the 
defendant,  being  found  guilty,  alleged  exceptions. 

J.  A.  Andreto,  for  the  defendant. 

J.  H.  Clifford  (Attorney  General),  for  the  Commonwealth. 

Metcalf,  J.  The  defendant  is  convicted  of  larceny  in  a  building 
owned  by  her  husband ;  and  as  the  indictment  does  not  aver  that  it 
was  committed  in  the  night  time,  it  must  be  taken  to  have  been  com- 
mitted in  the  daytime.  St.  1843,  c.  1,  §  2.  The  question  is  whether 
the  defendant  is  liable  to  the  punishment  prescribed  by  St.  1851,  c.  156, 
§  4,  for  larceny  "  in  any  building,"  or  only  to  the  punishment  elsewhere 
prescribed  for  simple  larceny. 

Larceny  in  the  daytime,  in  a  dwelling-house  and  in  certain  other 
buildings,  not  broken  into,  was  first  subjected,  in  Massachusetts,  to 
greater  punishment  than  if  not  committed  therein,  by  St.  1804,  c.  143, 
§  6  ;  to  wit,  solitary  imprisonment  of  the  offender,  in  the  state  prison, 
not  exceeding  six  months,  and  confinement  there  afterwards  to  hard 
labor,  not  exceeding  five  years.  By  St.  1830,  c.  72,  §  3,  courts  were 
authorized  to  sentence  such  offender  to  confinement  in  the  county  jail, 
not  exceeding  five  years,  or  to  the  payment  of  a  fine,  according  to  the 
nature  and  aggravation  of  the  offence.  By  the  Rev.  Sts.  c.  126,  §  14, 
it  was  thus  enacted  :  "  Every  person  who  shall  steal,  in  the  daytime,  in 
any  dwelling-house,  office,  bank,  shop  or  warehouse,  ship  or  vessel, 
shall  be  punished  by  imprisonment  in  the  state  prison,  not  more  than 
five  years,  or  by  fine  not  exceeding  three  hundred  dollars,  and  im- 
prisonment in  the  country  jail,  not  more  than  two  years."  By  St.  1851, 
c.  156,  §  4,  "  every  person  who  shall  commit  the  offence  of  larceny,  by 
stealing  in  any  building,  shall  be  punished  by  imprisonment  in  the  state 
prison  not  more  than  five  years,  or  by  fine  not  exceeding  five  hundred 
dollars,  or  imprisonment  in  the  house  of  correction  or  county  jail,  not 
exceeding  three  years."  For  simple  larceny,  that  is,  for  theft  not 
aggravated  by  being  from  the  person,  nor  by  being  committed  in  a 
dwelling-house  or  other  building,  ship,  or  vessel,  a  lighter  punishment 


60 


946  COMMONWEALTH   V.   HARTNETT.  [CHAP.  XII. 

is  prescribed  by  the  Rev.  Sts.  c.  126,  §  17,  and  c.  143,  §  5.  And 
we  are  of  opinion  that  the  defendant  is  liable  only  to  that  lighter 
punishment. 

We  do  not  suppose  that  any  English  statutes  for  the  punishment  of 
larcenv  were  ever  held  to  be  in  force  in  Massachusetts.  7  Dane  Ab. 
108.  Yet  the  provisions  of  some  of  them,  and  the  provisions  of  acts  of 
Parliament  for  the  punishment  of  other  offences,  have  been  enacted  by 
our  legislature,  in  every  stage  of  our  history.  And  in  such  eases  (as 
well  as  in  cases  where  English  statutes  respecting  civil  concerns  have 
been  enacted  here),  it  has  always  been  held  that  the  construction  previ- 
ously given  to  the  same  terms,  by  the  English  courts,  is  the  construction 
to  be  given  to  them  by  our  courts.  It  is  a  common  learning,  that  the 
adjudged  construction  of  the  terms  of  a  statute  is  enacted,  as  well  as 
the  terms  themselves,  when  an  act,  which  has  been  passed  by  the  legis- 
lature of  one  state  or  country,  is  afterwards  passed  by  the  legislature 
of  another.  So  when  the  same  legislature,  in  a  later  statute,  use  the 
terms  of  an  earlier  one  which  has  received  a  judicial  construction, 
that  construction  is  to  be  given  to  the  later  statute.  And  this 
is  manifestly  right.  For  if  it  were  intended  to  exclude  any  known 
construction  of  a  previous  statute,  the  legal  presumption  is,  that  its 
terms  would  be  so  changed  as  to  effect  that  intention.  6  Dane  Ab. 
613 ;  Kirkpatrick  v.  Gibson's  Ex'ors,  2  Brock.  388 ;  Pennock  v. 
Dialogue,  2  Pet.  18  ;  Adams  v.  Field,  21  Verm.  266  ;  Whitcorab  v. 
Rood,  20  Verm.  52;  Rutland  v.  Mendon,  1  Pick.  150;  Myrick  v. 
Hasey,  27  Maine,  17.  There  are  many  instances  in  which  our  legis- 
lature have  made  punishable,  as  offences,  acts  which  were  first  made  so 
by  English  statutes.  Among  others  are  our  statutes  concerning  the 
fraudulent  obtaining  of  money  or  goods  by  false  pretences.  In  all  such 
cases,  the  construction  given  by  the  English  courts  is  deemed  to  be  the 
true  one,  when  the  statutes  are  alike.  And  we  have  already  stated, 
that  the  act  of  stealing  in  certain  buildings  was  first  made  an  aggravated 
larceny,  and  subjected  to  a  greater  punishment  than  before,  by  St. 
1804,  c.  143.  Yet  by  the  English  St.  12  Anne,  c.  7  (passed  in  1713, 
and  now  repealed),  it  was  enacted  that  "all  and  every  person  or  persons 
that  shall  feloniously  steal  any  money,  goods  or  chattel?,  wares  or 
merchandises,  of  the  value  of  forty  shillings  or  more,  being  in  any  dwell- 
ing-house, or  outhouse  thereunto  belonging,  although  such  house  or 
outhouse  be  not  actually  broken  by  such  offender,  and  although  the 
owner  of  such  goods,  or  any  otlier  person  or  persons  be  or  be  not  in 
such  house  or  outhouse,  being  thereof  convicted,  shall  be  absolutely 
debarred  of  and  from  the  benefit  of  clergy."  And  by  the  P^nglish  St.  24 
G.  II.  c.  45,  a  like  provision  was  made  in  cases  of  conviction  of  the 
offence  of  feloniously  stealing  goods,  w^ares,  or  merchandise,  of  the 
value  of  forty  shillings,  in  any  ship,  barge,  lighter,  boat,  or  other  vessel, 
upon  any  navigable  river,  or  in  any  port  of  entr^'  or  discharge.  But 
it  was  early  decided  that  the  first  of  these  statutes  did  not  extend  to  a 
stealing  by  one  in  his  own  house,  nor  to  a  stealing  by  a  wife  in  her 


SECT.  VII.]  COMMONWEALTH   V.   SMITH.  947 

husband's  house,  which  is  the  same  as  her  own.  The  intention  of  the 
statute  was  declared  to  be,  to  protect  the  owner's  propert}'  in  his  own 
house  from  the  depredation  of  others,  or  tiie  property  of  others  lodged 
in  his  house  ;  thereby  giving  protection  against  all  but  the  owner  him- 
self. It  has  also  been  decided  that  the  property  stolen  must  be  such  as 
is  usually  under  the  protection  of  the  house,  deposited  there  for  safe 
custod}',  and  not  things  immediately  under  the  eye  or  personal  care  of 
some  one  who  happens  to  be  in  the  house.  2  East  P.  C.  644-646  ;  The 
King  V.  Gould,  1  Leach  (3d  ed.),  257  ;  The  King  v.  Thompson  &  Mac- 
daniel,  1  Leach,  379  ;  The  King  v.  Campbell,  2  Leach,  642.  See  also 
Rex  V.  Taylor,  Russ.  &  Ry.  418  ;  Rex  v.  Hamilton,  8  C.  &  P.  49  ; 
Rex  V.  Carroll,  1  Mood.  C.  C.  89.  And  it  has  also  been  held  that  tbe 
St,  24  G.  II.  c.  45,  does  not  extend  to  stealing  b}-  the  owner  and 
master  of  a  vessel.     Rex  v.  Madox,  Russ.  &  Ry.  92. 

We  are  of  opinion  that  the  purpose  and  intent  of  St.  1804,  c.  143,  §  6, 
and  of  the  Rev.  Sts.  c.  126,  §  14,  were  the  same  as  the  purpose  and 
intent  of  St.  12  Anne,  c.  7,  and  that  they  must  have  the  same  con- 
struction which  was  given  to  that  before  these  were  enacted.  Indeed, 
the  attorney  general  frankly  admits  this,  and  that  he  eannot  ask  for 
sentence  against  the  defendant,  as  for  an  aggravated  larceny,  unless  it 
is  required  or  warranted  by  St.  1851,  c.  156,  §  4.  We  think  that 
statute  has  not  altered  the  law  in  this  matter ;  that  it  has  only  made 
larceny  "in  any  building,"  an  aggravated  offence,  as  former  statutes 
made  it  when  committed  in  certain  enumerated  buildings;  and  that  it 
has  not  subjected  to  the  punishment  therein  prescribed  any  larceny 
which,  if  committed  in  either  of  those  buildings,  would  not  have  been 
liable  to  such  punishment.  The  statute  was  passed  in  consequence  of 
the  decision,  in  Commonwealth  v.  White,  6  Cusli.  181,  that  the 
passenger  room  of  a  railroad  station  was  not  an  "office,"  within  the 
meaning  of  the  Rev.  Sts.  c.  126,  §  14. 

Defendant  to  he  sentenced  for  simple  larceny.^ 


COMMONWEALTH   v.   SMITH. 
Supreme  Judicial  Court  of  Massachusetts,  1873. 

[Reported  111  Massachusetts,  429.] 

Indictment  alleging  that  the  defendant,  on  April  14,  1872,  at  Brain- 
tree,  certain  bank  notes  "  of  the  property,  goods,  and  moneys  of  James 
Gilbride,  in  a  certain  building  there  situate,  to  wit,  the  dwelling-house 
of  one  Patrick  McGuire,  and  then  and  there  in  the  possession  of  the 

1  Ace.  Rex  V.  Gould,  Leach  (4th  ed.),  257.  Otherwise,  in  England,  under  Stat.  7 
&  8  G.  IV.  ch.  29,  §  12 ;  Reg.  v.  Bowden,  2  Moo.  C.  C.  285.  — Ed. 


948  COMMONWEALTH   V.   SMITH.  [CHAP.  XII. 

said  James  Gilbride,  being  found,  feloniously  did  steal,  take,  and  carry 
away." 

At  the  trial  in  the  Superior  Court  in  Norfolk,  before  Putnam,  J.,  the 
Commonwealth  introduced  evidence  tending  to  show  that  the  defendant 
and  James  Gilbride  lodged  together  in  the  same  room  of  McGuire's 
house ;  that  Gilbride  went  to  the  room  where  the  defendant  was  already 
in  bed,  put  the  money  in  his  trunk,  locked  the  trunk,  put  the  key  of  it  in 
his  pocket,  undressed,  put  his  clothes  on  a  chair,  and  went  to  bed  ;  that 
the  defendant  got  up  in  the  night,  took  the  kej'  from  the  pocket,  opened 
the  trunk,  took  out  the  money,  and  returned  the  key  to  the  pocket. 
Gilbride  testified  that  he  was  awakened  in  the  night,  and  saw  Smith 
with  a  lighted  match  at  one  of  the  trunks  in  the  room,  but  did  not  know 
it  was  his  own  trunk,  and  thought  nothing  more  of  it,  until  he  missed 
the  money. 

The  defendant  asked  the  judge  to  rule  that  upon  this  evidence  the 
jur}'  could  not  find  the  defendant  guilty  of  larceny  in  a  building,  but 
onl}-  of  simple  larceny-.  The  judge  declined  so  to  rule,  and  left  it  to 
the  jury  under  instructions  which  authorized  them  to  find  the  defendant 
guilty  of  larceny  in  a  building.     The  jury  returned  a  verdict  of  guilty. 

The  defendant  then  moved  in  arrest  of  judgment  on  the  ground  that 
the  indictment  did  not  aver  that  the  larceny  charged  was  committed  in 
any  building,  but  the  judge  overruled  the  motion. 

The  defendant  alleged  exceptions. 

W.  E.  Je}oell,  for  the  defendant. 

W.  G.  Colburn,  Assistant  Attorney  General  (C.  R.  Train,  Attor- 
ney' General,  with  him),  for  the  Commonwealth. 

Gray,  J.  The  indictment  duh-  charges  larceny  in  a  building.  The 
allegation  that  the  defendant  stole  propert3-  in  the  dwelling-house 
described  necessaril3'  includes  a  statement  that  the  act  of  stealing 
was  done  in  the  building.  And  the  whole  charge  was  supported  by 
the  proof.  In  order  to  constitute  larceny  in  a  dwelling-house  or  other 
building,  the  property  stolen  must  indeed  be  under  the  protection  of 
the  house,  and  not  under  the  e^-e  or  personal  care  of  some  one  who 
happens  to  be  in  the  house.  The  King  v.  Owen,  2  Leach  (4th  ed.),  572  ; 
Commonwealth  v.  Hartnett,  3  Gra}',  450,  452.  But  money  of  a  lodger 
in  his  trunk,  as  well  as  the  key  of  the  trunk  in  a  pocket  of  his  clothes, 
is  clearly,  while  he  is  in  bed,  undressed,  and  asleep,  not  under  his  own 
protection,  but  under  the  protection  of  the  house.  Rex  v.  Taylor,  Russ. 
&  Ry.  418  ;  Rex  v.  Hamilton,  8  C.  &  P.  49.  The  defendant  was  there- 
fore rightly  convicted  of  larceny  in  a  building. 

Exceptions  overruled} 

1  Ace.  Rex  V.  Taylor,  Russ.  &  Ry.  418.  —Ed. 


SECT.  VII.]  COMMONWEALTH   V.   LESTEK.  949 


COMMONWEALTH   v.   LESTER. 

Supreme  Judicial  Court  of  Massachusetts,  1880. 

[Reported  129  Massachusetts,  101.] 

Ames,  J.^  In  an  indictment  founded  upon  tlie  Gen.  Sts.  c.  161,  §  15, 
for  larceny  in  a  building,  it  is  not  enough  to  prove  that  the  property 
stolen  was  in  a  building  at  the  time  of  the  theft,  and  that  the  defend- 
ant was  the  thief.  It  is  necessary  to  show  also  tliat  the  property  was 
under  the  protection  of  the  building,  placed  there  for  safe  keeping,  and 
not  under  the  eye  or  personal  care  of  some  one  in  the  building.  The 
watches  in  tliis  case  were  a  part  of  the  owner's  stock  in  trade,  usually 
kept  b^'  him  in  the  building.  But  his  testimony,  which  was  the  only 
evidence  to  the  point,  is  to  the  effect  that  he  was  in  charge  of  the  prop- 
erty, when  the  defendant  came  in  and  asked  to  look  at  some  watches, 
and  that  he  handed  the  watches  to  the  defendant ;  that  he  was  not 
sure  whether  the  defendant  held  the  watches  in  his  hand,  or  whether 
thej'  were  lying  on  the  show-case ;  and  that  they  were  stolen  while 
he  turned  partially  round  to  place  something  upon  the  shelf  behind 
him.  If  they  were  upon  the  show-case  when  stolen,  it  would  be  at 
least  doubtful  whether  they  must  not,  under  the  circumstances,  be  con- 
sidered as  ratlier  in  the  possession  of  the  owner  than  under  the  pro- 
tection of  the  building.  If  by  the  act  of  the  owner  they  were  in  the 
hands  of  the  defendant,  they  certainly  derived  no  protection  from  the 
building.  As  the  evidence  left  it  wholly  uncertain  whether  they  were 
on  the  show-case  or  in  the  defendant's  own  hands,  it  did  not  warrant  a 
conviction  of  larceny  in  a  building ;  and  the  jury  should  have  been  so 
instructed.  Rex  v.  Campbell,  2  Leach  (4th  ed.)  564 ;  Rex  y.  Castle- 
dine,  2  p:ast  P.  C.  645  ;  Rex  v.  Watson,  2  East  P.  C.  680 ;  s.  c.  2 
Leach,  640 ;  Rex  v.  Hamilton,  8  Car.  &  P.  49,  50,  note ;  Common- 
wealth V.  Smith,  111  Mass.  429. 

Exceptions  sustained.^ 

*  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 

2  Ace.  Rex  V.  Campbell,  Leach  (4th  ed.).  642.  Contra,  Simmons  v.  State,  73  Ga. 
609.    See  Com.  v.  Nott,  135  Mass.  269.  — Ed. 


950 


my 


HEADGE. 


[chap.  XIII. 


^4 


'^ 


HAPTER    XIII. 
EMBEZZLEMENT. 

REX  V.  HEADGE. 
Crown  Case  Reserved.     1809. 

J  [Reported  Russell  ^  Ryan,  160.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Bayley  at 
the  Old  Bailey  Sessions,  September,  1809,  on  the  statute  39  G.  III.  c. 
85,  for  embezzling  three  shillings,  which  he  received  for  and  on  account 
of  his  masters,  James  Clarke  and  John  Giles. 

It  appeared  from  the  evidence  that  the  prosecutors  desired  a  neigh- 
bor, one  Francis  Moxon,  to  go  to  their  shop  and  purchase  some  articles 
in  order  that  the}"  might  discover  whether  the  prisoner  put  the  money 
which  he  received  for  the  goods  sold  into  the  till ;  the  prosecutors  sup- 
plied Moxon  with  three  shillings  of  their  own  money  for  this  purpose, 
\      J*)   •  I       which  mone}'  the}'  marked.     Moxon  went  to  the  shop,  bought  the  arti- 
!f^l  T    cles,  and  paid  the  prisoner  the  three  shillings.     The  prisoner  embezzled 
^x   this  mone}'. 

^       It  was  urged  on  behalf  of  the  prisoner  that  the  prosecutors  had  con- 

^^structively  the  possession  of  this  money  up  to  the  time  of  the  embezzle- 

0    ment  and  that  they  had  parted  with  nothing  but  the  mere  custody.    The 

^    prisoner  it  was  contended  might  have  been  indicted  for  larceny  at  com- 

V    mon  law,  but  that  the  statute  did  not  appl}'  to  cases  where  the  money 

^   before  its  delivery  to  the  servant  had  been  in  the  masters'  possession 

^  and  might  legally  be  considered  the  masters'  at  the  time  of  such  deliv- 

^  ery,  as  Moxon  in  this  case  was  the  masters*  agent  and  his  possession 

^^theirs. 

_  The  learned  judge  before  whom  this  case  was  tried  thought  it  de- 

^  KJ^    ^  served  consideration,  and  reserved  the  point  for   the  opinion   of  the 

'^  judges. 

■^  N^      In  Michaelmas  term,  1809,  the  judges  met  and  held  the  conviction 

^ ,  ^  right,  upon  the  authority  of  Bull's  case,  in  which  the  judges  upon  simi- 

^V  ^  lar  facts  held  a  common-law  indictment  could  not  be  supported.     It 

>^\  seemed  to  be  the  opinion  of  the  judges  that  the  statute  did  not  apply  to 

^    ^  cases  which  are  larceny  at  common  law. 

^^ 


>>>  ^ 


CHAP.  XIII.]  EEGINA  V.   CULLUM.  951 


REGINA  V.  CULLUM. 
Crown  Case  Reserved.     1873. 

[Reported  Law  Reports,  2  Crown  Cases  Reserved,  28.] 

Case  stated  bj'  the  Chairman  of  the  West  Kent  Sessions. 

The  prisoner  was  indicted  as  servant  to  George  Smeed  for  stealing 
£2,  the  property  of  his  master. 

Tiie  prisoner  was  employed  by  Mr.  Smeed  of  Sittingbourne,  Kent,  as 
captain  of  one  of  Mr.  Smeed's  barges. 

The  prisoner's  duty  was  to  take  the  barge  with  the  cargo  to  London, 
and  to  receive  back  such  return  cargo  and  from  such  persons  as  his 
master  should  direct.  The  prisoner  had  no  authority  to  select  a  return 
cargo  or  take  any  other  cargoes  but  those  appointed  for  him.  The 
prisoner  was  entitled  by  way  of  remuneration  for  his  services  to  half 
the  earnings  of  the  barge  after  deducting  half  his  sailing  expenses. 
Mr.  Smeed  paid  the  other  half  of  such  expenses.  The  prisoner's  whole 
time  was  in  Mr.  Smeed's  service.  It  was  the  duty  of  the  prisoner  to 
account  to  Mr.  Smeed's  manager  on  his  return  home  after  every  vo}'- 
age.  Li  October  last,  by  direction  of  Mr.  Smeed,  the  prisoner  took  a 
load  of  bricks  to  London.  In  London  he  met  Mr.  Smeed  and  asked  if 
he  should  not  on  his  return  take  a  load  of  manure  to  Mr.  Pye  of  Cax- 
ton.  Mr.  Smeed  expressl}'  forbade  his  taking  the  manure  to  Mr.  P^e, 
and  directed  him  to  return  with  his  barge  empty  to  Burham,  and  thence 
take  a  cargo  of  mud  to  another  place,  Murston.  Going  from  London 
to  Murston  he  would  pass  Caxton.  Notwithstanding  this  prohibition 
the  prisoner  took  a  barge-load  of  manure  from  London  down  to  Mr. 
Pye  at  Caxton,  and  received  from  Mr.  Pye's  men  £4  as  the  freight.  It 
■was  not  proved  that  he  professed  to  carry  the  manure  or  to  receive  the 
freight  for  his  master.  The  servant  who  paid  the  £4  said  that  he  paid 
it  to  the  prisoner  for  the  carriage  of  the  manure,  but  that  he  did  not 
know  for  whom.  Early  in  December  the  prisoner  returned  home  to 
Sittingbourne  and  proposed  to  give  an  account  of  his  voyage  to  Mr. 
Smeed's  manager.  The  prisoner  stated  that  he  had  taken  the  bricks  to 
London,  and  had  returned  empt}'  to  Burham,  as  directed  by  Mr.  Smeed, 
and  that  there  he  had  loaded  with  mud  for  Murston. 

In  answer  to  the  manager's  inquiries  the  prisoner  stated  that  he  had 
not  brought  back  any  manure  in  the  barge  from  London,  and  he  never 
accounted  for  the  £4  received  from  Mr.  Pye  for  the  freight  for  the 
manure. 

The  jur}-  found  the  prisoner  guilt}-  as  servant  to  Mr.  Smeed  of  em- 
bezzling £2. 

The  question  was  whether,  on  the  above  facts,  the  prisoner  could  be 
properly  convicted  of  embezzlement.  24  &  25  Vict.  c.  96,  §  68,  enacts 
that  "  Whosoever,  being  a  clerk  or  servant,  or  being  eraplo^'ed  for  the 


952 


REGINA  V.   CULLUM. 


[chap.  XIII. 


k 


5 


purpose  or  in  the  capacity  of  a  clerk  or  servant,  shall  fraudulentl}'  em- 
bezzle any  chattel,  money,  or  valuable  security  which  shall  be  delivered 
to  or  received  or  taken  into  possession  by  him  for  or  in  the  name  or  on 
the  account  of  his  master  or  employer,  or  any  part  thereof,  shall  be 
deemed  to  have  feloniously  stolen  the  same  from  his  master  or  emplo3'er, 
although  such  chattel,  money,  or  security  was  not  received  into  the  pos- 
session of  such  master  or  emploj'er  otherwise  than  b\'  the  actual  pos- 
session of  his  clerk,  servant,  or  other  person  so  employed.  .  .  ." 
No  counsel  appeared  for  the  prisoner. 

E.  T.  Smith  (with  him  Moreton  Smith)  for  the  prosecution.     The 
prisoner  received  this  freight  either  "  for"  or  "on  account  of  his  mas- 
ter or  employer,"  and  therefore  is  within  the  terms  of  24  &  25  Vict.  c. 
96,  §  68.     The  words  "  by  virtue  of  such  employment,"  which  were  in 
Ki~^   the  repealed  statutes  relating  to  the  same  offence,  have  been  "  advisedly 
«^"°^  omitted  in  order  to  enlarge  the  enactment  and  get  rid  of  the  decisions 
on  the  former  enactments."     Greaves'  Crim.  Law  Consolidation  Acts, 
-        p.  117. 

[BoviLL,  C.  J.  An  alteration  caused  by  the  decision  of  Rex  v.  Snow- 
ley,  4  C.  &  P.  390,  which  was  a  case  resembling  the  present  one. 

Blackburn,  J.  How  can  the  money  here  be  said  to  have  been 
received  into  the  possession  of  the  servant  so  as  to  become  the  property 
of  the  master?] 

The  prisoner  was  exclusively  employed  b}'  the  prosecutor.  With  his 
^^^^master's  barge  he  earned,  and  in  the  capacity  of  servant  received,  £4 
■^  as  freight,  which  on  receipt  by  him  at  once  became  the  property  of  his 
^     master.     Rex  v.  Hartley,  Russ.  &  Ry.  139. 

NJ  [Blackburn,  J.  But  in  this  case  the  servant  was  disobeying  orders. 
^  Suppose  a  private  coachman  used  his  master's  carriage  without  leave, 
<^Si^nd  earned  half-a-crown  by  driving  a  stranger,  would  the  money  be  re- 
,     cfeived  for  the  master  so  as  to  become  the  property  of  the  latter?] 

Such  coachman  has  no  authority  to  receive  any  money  for  his  mas- 
ter ;  the  prisoner,  however,  was  entitled  to  take  freight. 

[BoviLL,  C.  J.  He  was  expressl}'  forbidden  to  do  so  on  this 
occasion.] 

Can  it  be  said  that  he  may  be  guilty  of  embezzlement  if  in  obedience 
of  orders  he  receives  money,  and  yeX,  not  guilt}'  of  that  crime  if  he  is 
acting  contrary  to  his  master's  commands?  See  note  to  Regina  v. 
Harris,  Dears.  C.  C.  344,  in  2  Russell  on  Crimes,  4th  ed.,  p.  453. 

[Blackburn,  J.  In  suggesting  that  case  to  be  erroneous  the  editor 
seems  to  assume  that  the  decision  proceeded  on  the  words  "by  virtue 
of  his  employment,"  whereas  it  did  not. 

Bramwell,  B.  Suppose  the  captain  of  a  barge  let  his  master's  ves- 
sel as  a  stand  to  the  spectators  of  a  boat-race  and  took  payment  from 
them  for  the  use  of  it?] 

Such  use  would  not  be  in  the  nature  of  his  business. 
[Blackburn,  J.     In  the  note  to  this  section  by  Mr.   Greaves  be 
remarks:  "Mr.  Davis  (Davis'  Criminal  Statutes,  p.  70),  rightly  says 


'^ 


CHAP.  XIII.] 


EEGINA   V.   CULLUM. 


953 


that  ♦  this  omission  avoids  this  technical  distinction  ; '  but  he  adds,  '  still 
it  must  be  the  master's  money  which  is  received  by  the  servant,  and 
not  money  wrongfully  received  by  the  servant  by  means  of  false  pre- 
tences.' This  is  plainly  incorrect."  But  in  my  opinion  Mr.  Davis  was 
plainly  correct  and  Mr.  Greaves  wrong.  Regina  v.  Thorpe,  Dears.  &  B. 
C.  C.  562.] 

BoviLL,  C.  J.  In  the  former  act  relating  to  this  offence  were  the 
words  *•' b}^  virtue  of  his  employment."  The  phrase  led  to  some  diffi- 
culty ;  for  example,  such  as  arose  in  Regina  v.  Snowley,  4  C.  &  P.  390, 
and  Regina  v.  Harris,  Dears.  C.  C.  344.  Therefore  in  the  present 
statute  those  words  are  left  out,  and  §  68  requires  instead  that  in  order 
to  constitute  the  crime  of  embezzlement  by  a  clerk  or  servant  the 
"chattel,  money,  or  valuable  security  .  .  .  shall  be  delivered  to  or 
received  or  taken  into  possession  b}'  him,  for  or  in  the  name  or  on 
account  of  his  master  or  employer." 

Those  words  are  essential  to  the  definition  of  the  crime  of  embezzle- 
ment under  that  section.  The  prisoner  here,  contrary  to  his  master's 
orders,  used  the  barge  for  his,  the  servant's,  own  purposes,  and  so 
earned  money  which  was  paid  to  him,  not  for  his  master  but  for  him- 
self; and  it  is  expressly  stated  that  there  was  no  proof  that  he  pro- 
fessed to  carry  for  the  master,  and  that  the  hirer  at  the  time  of  paying 
the  money  did  not  know  for  whom  he  paid  it.  The  facts  before  us 
would  seem  more  consistent  with  the  notion  that  the  prisoner  was  mis- 
using his  master's  property  and  so  earning  money  for  himself  and  not 
for  his  master.  Under  those  circumstances  the  money  would  not  be 
received  "  for"  or  "  in  the  name  of"  or  "  on  account  of"  his  master 
but  for  himself,  in  his  own  name,  and  for  his  own  account.  His  act 
therefore  does  not  come  within  the  terms  of  the  statute,  and  the  convic- 
tion must  be  quashed. 

Bramwell,  B.  I  am  of  the  same  opinion.  I  think  in  these  cases  we 
should  look  at  the  substance  of  the  charge  and  not  merely  see  whether 
the  case  is  brought  within  the  bare  words  of  the  Act  of  Parliament. 
Now  the  wrong  committed  by  the  prisoner  was  not  fraudulent  or 
wrongful  with  respect  to  mone}',  but  consisted  in  the  improper  use  of 
his  master's  chattel.  The  offence  is,  as  I  pointed  out  during  argument, 
onl}'  that  which  a  barge-owner's  servant  might  be  guilty  of,  if  when 
navigating  the  barge,  he  stopped  it,  allowed  persons  to  stand  upon  it  to 
view  a  passing  boat-race,  charged  them  for  so  doing,  and  pocketed  the 
money  they  paid  to  him.  There  is  no  distinction  between  that  case 
and  this  save  that  the  supposititious  case  is  more  evidently  out  of  the 
limits  of  the  statute. 

The  use  of  this  barge  b}'  the  prisoner  was  a  wrongful  act  yet  not  dis- 
honest in  the  sense  of  stealing.  But  I  will  add  that  I  do  not  think  this 
case  even  within  the  words  of  the  statute.  The  servant  undoubtedly 
did  not  receive  the  monej'  "  for"  his  master  nor  "  on  account  of"  his 
master  nor  "in  the  name"  of  his  master.  Nevertheless  I  doubt  ex- 
tremely whether  on  some  future  day  great  difficulty  may  not  arise  as  to 


954 


EEGINA  V.   BARNES. 


[chap.  XIII. 


the  meaning  of  these  expressions  in  §  68,  for  I  doubt  whether,  although 
the  servant  had  used  his  master's  name,  he  would  have  been  within  the 
terms  of  the  Act  of  Parliament.  "  In  the  name  of"  his  master  is  a  ver\- 
curious  expression.  Suppose  a  person  in  service  as  a  carter  had  also 
a  horse  and  cart  of  his  own  and  employed  them  to  do  some  or  other 
work,  professing  them  to  be  his  master's,  and  i-eceived  hire  for  it  "  in 
the  name  of"  his  master,  would  that  be  embezzlement?  Could  he  be 
rightly  convicted  under  this  section  ?  I  doubt  it  extremely.  The  words 
"  in  the  name  of"  his  master,  although  inserted  with  a  desire  to  obviate 
difficulties,  seem  to  me  likely  hereafter  to  raise  them.^ 


REGINA  V.  BARNES. 
Devizes  Assizes.     1858. 

[Reported  8  Cox  C.  C.  129.] 

Prisoner  was  indicted  for  that  he  being  the  servant  of  Joseph  Hill 
and  others,  did  embezzle  two  sums  of  £68  10s.,  and  £29  95.  Id.,  their 
property. 

Edlin,  for  the  prosecution. 

Cole,  for  the  prisoner. 

It  was  proved  that  prisoner,  who  was  a  coal  and  timber  merchant,  fell 
into  difficulties,  and  made  an  assignment  of  all  his  goods,  effects,  and 
t^  ^^  book  debts.  After  the  execution  of  this  assignment,  he  received  the 
V  two  sums  of  money  in  question,  which  had  been  debts  previously  due 

V  Y  to  him,  and  he  had  not  accounted  for  the  receipt  of  those  sums.  After 
JV'  the  execution  of  the  deed  the  prisoner  had  been  employed  by  the 
^  trustees,  at  a  salar}',  to  conduct  the  business  for  the  benefit  of  the 
trustees. 

Cole  submitted  that  the  debts  being  onh'  choses  in  action  could  not 
be  assigned  in  law,  they  could  only  be  sued  for  and  recovered  in  the 
prisoner's  name ;  and  in  law  he  was  the  person  entitled  to  receive 
them ;  in  fact,  he  received  his  own  mone\'. 

Edlin  contended  that  immediatel}-  on  the  receipt  of  the  money  by  the 
prisoner  it  became  the  propert}'  of  the  trustees,  and  then  the  prisoner 
was  guilty  of  embezzlement. 

Cole,  in  repl}'.  Embezzlement  is  the  stopping  of  money  in  transitu 
to  the  employer.  If  rightly  received  by  the  prisoner,  the  keeping  of 
it  afterwards  was  not  embezzlement.  He  could  not  be  guilty  of 
larceny  unless  the  monej-  was  ear-marked,  and  if  ear-marked,  it  was 
the  debt  supposed  to  be  assigned,  but  which  had  not  passed  in  law, 
only  in  equity. 

^  Concurring  opinions  of  Blackburn  and  Archibald,  JJ.,  are  omitted.  See  ace.  Reg. 
V.  Harris,  6  Cox  C.  C.  363 ;  Reg.  v.  Read,  3  Q.  B.  D.  131 ;  Brady  v.  State,  21  Tex. 
App.  659.     See  ex  parte  Hedley,  31  Cal.  108.  —  Ed. 


CHAP.  XIII.]  COMMONWEALTH   V.   HAYS.  955 

Byles,  J.,  said,  the  difficulty  was  to  make  out  that,  in  point  of  law, 
the  prisoner  was  a  clerk,  or  servant,  or  acting  in  the  capacity  of  a 
servant  within  the  meaning  of  the  statute.  It  was  clear  that  these 
debts  were  not  assignable  in  law ;  they  were  choses  in  action,  and  the 
deed  would  only  bind  him  in  equity.  The  moment  he  received  these 
moneys,  they  were  his  own  moneys,  —  he  received  what,  in  point  of  law, 
was  his  own  money.  How  then,  could  he  be  guilty  of  embezzlement ; 
or  how  could  he  be  said  to  be  clerk  or  servant  to  the  trustees  ?  He 
could  not,  in  point  of  law,  pass  the  property  in  the  debts  due  to  him 
before  the  deed  was  executed.  His  assignees  were  only  equitable 
assignees ;  the}'  could  only  sue  in  his  name.  The  deed  could  only  pass 
that  which  he  actually  had  in  his  possession  at  the  time  the  deed  was 
executed.  Under  these  circumstances  the  indictment  could  not  be 
sustained. 

The  prisoner  was,  therefore,  acquitted. 


COMMONWEALTH  v.  HAYS. 
Supreme  Judicial  Court  of  Massachusetts.     1858. 

[Reported  14  Gray,  62.] 

Indictment  on  St.  1857,  c.  233,  which  declares  that  "  if  any  person, 
to  whom  any  money,  goods,  or  other  property,  which  may  be  the  sub- 
ject of  larceny,  shall  have  been  delivered,  shall  embezzle,  or  fraudu- 
lently convert  to  his  own  use,  or  shall  secrete,  with  intent  to  embezzle 
or  fraudulently  convert  to  his  own  use,  such  money,  goods,  or  property, 
or  any  part  thereof,  he  shall  be  deemed,  by  so  doing,  to  have  committed 
the  crime  of  simple  larceny."  The  indictment  contained  two  counts, 
one  for  embezzlement,  and  one  for  simple  larceny. 

At  the  trial  in  the  Court  of  Common  Pleas  in  Middlesex,  at  October 
term,  1858,  before  Aiken,  J.,  Amos  Stone,  called  as  a  witness  by  the 
Commonwealth,  testified  as  follows:  "  I  am  treasurer  of  the  Charles- 
town  Five  Cent  Savings  Bank.  On  the  17th  day  of  October,  1857,  the 
defendant  came  into  the  bank,  and  asked  to  draw  his  deposit,  and 
presented  his  deposit  book.  I  took  his  book,  balanced  it,  and  handed 
it  back  to  him.  It  was  for  one  hundred  and  thirty  dollars  in  one  item. 
I  then  counted  out  to  him  two  hundred  and  thirty  dollars,  and  said, 
'  There  are  two  hundred  and  thirty  dollars.'  The  defendant  took  the 
money  to  the  end  of  the  counter,  and  counted  it,  and  then  left  the  room. 
Soon  after  the  defendant  had  left,  I  discovered  that  I  had  paid  him  one 
hundred  dollars  too  much.  After  the  close  of  bank  hours  I  went  in 
search  of  the  defendant,  and  told  him  that  I  had  paid  him  one  hundred 
dollars  too  much,  and  asked  him  to  adjust  the  matter.  The  defendant 
asked  me  how  I  knew  it.     He  asked  me  if  I  could  read.     I  said  '  Yes.' 


956  COMMONWEALTH   V.   HAYS.  [CHAP.  XIII. 

He  then  showed  me  his  book,  and  said,  '  What  does  that  say? '  I  took 
it,  and  read  in  it  one  hundred  and  thirty  dollars.  The  defendant  then 
said,  '  That  is  wliat  I  got.'  He  exhibited  two  fifties,  two  tens,  and  a 
ten  dollar  gold  piece,  and  said,  'That  is  what  I  got.'  I  then  said  to 
him,  '  Do  you  say  that  is  all  and  precisely  what  I  gave  you?  '  He  re- 
plied, 'That  is  what  I  got.'  I  then  said  to  him,  '  I  can  prove  that  you 
got  two  hundred  and  thirty  dollars.'  He  replied,  'That  is  what  I  want ; 
if  you  can  prove  it,  you  will  get  it ;  otherwise,  you  wont.'  I  intended 
to  pay  the  defendant  the  sum  of  two  hundred  and  thirty  dollars,  and  did 
so  pay  him.  I  then  supposed  that  the  book  called  for  two  hundred  and 
thirty  dollars.  Books  are  kept  at  the  bank,  containing  an  account  with 
depositors,  wherein  all  sums  deposited  are  credited  to  them,  and  all 
sums  paid  out  are  charged  to  them." 

The  defendant  asked  the  court  to  instruct  the  jury  that  the  above 
facts  did  not  establish  such  a  deUvery  or  embezzlement  as  subjected  the 
defendant  to  a  prosecution  under  the  St.  of  1857,  c.  233,  and  did  not 
constitute  the  crime  of  larceny. 

The  court  refused  so  to  instruct  the  jury  ;  and  instructed  them  "  that 
if  the  sum  of  two  hundred  and  thirty  dollars  was  so  delivered  to  the 
defendant,  as  testified,  and  one  hundred  dollars,  parcel  of  the  same, 
was  so  delivered  by  mistake  of  the  treasurer,  as  testified,  and  the  de- 
fendant knew  that  it  was  so  delivered  by  mistake,  and  knew  he  was 
not  entitled  to  it,  and  afterwards  the  money  so  delivered  by  mistake 
was  demanded  of  him  by  the  treasurer,  and  the  defendant,  having  such 
knowledge,  did  fraudulently,  and  with  a  felonious  intent  to  deprive  the 
bank  of  the  money,  convert  the  same  to  his  own  use,  he  would  be 
liable  under  this  indictment."  The  jury  returned  a  verdict  of  guilt}', 
and  the  defendant  alleged  exceptions. 

iV.  St.  J.  Green  ^  for  the  defendant. 

S.  H.  PhlUips  (Attorney  General),  for  the  Commonwealth. 

BiGELOw,  J.  The  statute  under  which  this  indictment  is  found  is 
certainly  expressed  in  very  general  terms,  which  leave  room  for  doubt 
as  to  its  true  construction.  But  interpreting  its  language  according  to 
the  subject  matter  to  which  it  relates,  and  in  the  light  of  tlie  existing 
state  of  the  law,  which  the  statute  was  intended  to  alter  and  enlarge, 
we  think  its  true  meaning  can  be  readily  ascertained. 

The  statutes  relating  to  embezzlement,  both  in  this  country  and  in 
England,  had  their  origin  in  a  design  to  supply  a  defect  which  was 
found  to  exist  in  the  criminal  law.  By  reason  of  nice  and  subtle  dis- 
tinctions, which  the  courts  of  law  had  recognized  and  sanctioned,  it 
was  difficult  to  reach  and  punish  the  fraudulent  taking  and  appropria- 
tion of  money  and  chattels  by  persons  exercising  certain  trades  and 
occupations,  bj-  virtue  of  which  they  held  a  relation  of  confidence  or 
trust  towards  their  employers  or  principals,  and  thereby  became  pos- 
sessed of  their  property.  In  such  cases  the  moral  guilt  was  the  same 
as  if  the  offender  had  been  guilty  of  an  actual  felonious  taking ;  but  in 
many  cases  he  could  not  be  convicted  of  larceny,  because  the  property 


CHAP.  XIII.]  COMMONWEAiTH   V.   HAYS.  957 

which  had  been  fraudulently  converted  was  lawfuU}-  in  his  possession 
by  virtue  of  his  employment,  and  there  was  not  that  technical  taking 
or  asportation  which  is  essential  to  the  proof  of  the  crime  of  larceny. 
The  King  u.  Bazeley,  2  Leach  (4th  ed.),  835  ;  2  East  P.  C.  568. 

The  statutes  relating  to  embezzlement  were  intended  to  embrace  this 
class  of  offences  ;  and  it  may  be  said  generally  that  they  do  not  apply 
to  cases  where  the  element  of  a  breach  of  trust  or  confidence  in  the 
fraudulent  conversion  of  money  or  chattels  is  not  shown  to  exist.  This 
is  the  distinguishing  feature  of  the  provisions  in  the  Rev.  Sts.  c.  126, 
§§  27-30,  creating  and  punishing  the  crime  of  embezzlement,  which 
carefully  enumerate  the  classes  of  persons  that  may  be  subject  to  the 
penalties  therein  provided.  Those  provisions  have  been  strictly  con- 
strued, and  the  operation  of  the  statute  has  been  carefully  confined  to 
persons  having  in  their  possession,  by  virtue  of  their  occupation  or 
employment,  the  money  or  property  of  another,  which  has  been  fraud- 
ulently converted  in  violation  of  a  trust  reposed  in  them.  Common- 
wealth V.  Stearns,  2  Met.  343  ;  Commonwealth  v.  Libbey,  11  Met.  64; 
Commonwealths.  WilUams,  3  Gray,  461.  In  the  last  named  case  it 
was  held,  that  a  person  was  not  guilty  of  embezzlement,  under  Rev. 
Sts.  c.  126,  §  30,  who  had  converted  to  his  own  use  money  which  had 
been  delivered  to  him  by  another  for  safe  keeping. 

The  St.  of  1857,  c.  233,  was  probably  enacted  to  supply  the  defect 
which  was  shown  to  exist  in  the  criminal  law  by  this  decision,  and  was 
intended  to  embrace  cases  where  property  had  been  designedly  delivered 
to  a  person  as  a  bailee  or  keeper,  and  had  been  fraudulently  converted 
by  him.  But  in  this  class  of  cases  there  exists  the  element  of  a  trust 
or  confidence  reposed  in  a  person  by  reason  of  the  delivery  of  property 
to  him,  which  he  voluntarily  takes  for  safe  keeping,  and  which  trust  or 
confidence  he  has  violated  by  the  wrongful  conversion  of  the  property. 
Beyond  this  the  statute  was  not  intended  to  go.  Where  money  paid  or 
property  delivered  through  mistake  has  been  misappropriated  or  con- 
verted by  the  party  receiving  it,  there  is  no  breach  of  a  trust  or  viola- 
tion of  a  confidence  intentionally  reposed  by  one  party  and  voluntarily 
assumed  by  the  other.  The  moral  turpitude  is  therefore  not  so  great 
as  in  those  cases  usually  comprehended  within  the  offence  of  embezzle- 
ment, and  we  cannot  think  that  the  legislature  intended  to  place  them 
on  the  same  footing.  "VVe  are  therefore  of  opinion  that  the  facts  proved 
in  this  case  did  not  bring  it  within  the  statute,  and  that  the  defendant 
was  wrongly  convicted.  Exceptions  sustained.^ 

1  See  Reg.  v.  RobsoD,  9  Cox  C.  C.  29.  —  Ed. 


958 


COMMONWEALTH   V.   BERKY. 


[chap.  XIII. 


N 


H 


COMMONWEALTH  v.  BERRY. 
Supreme  Judicial  Court  of  Massachusetts.     1868. 

[Rfported  99  Massachusetts,  4'28.] 

Hoar,  J.^  The  bill  of  exceptions  states  that  this  indictment  was 
found  under  Gen.  Sts.  c.  161,  §  41.  It  seems  to  be  a  good  indictment 
under  that  section,  or  under  §  35  of  the  same  chapter.  Commonwealth 
V.  Concannon,  5  Allen,  506;  Commonwealth  v.  Williams,  3  Gra}-,  461. 
But  the  more  important  question  is,  whether,  upon  the  facts  reported, 
an  indictment  can  be  sustained  for  the  crime  of  embezzlement.  The 
statutes  creating  that  crime  were  all  devised  for  the  purpose  of  punish- 
ing the  fraudulent  and  felonious  appropriation  of  property  which  had 
been  intrusted  to  the  person,  by  whom  it  was  converted  to  his  own  use, 
in  such  a  manner  that  the  possession  of  the  owner  was  not  violated,  so 
that  he  could  not  be  convicted  of  larceny  for  appropriating  it.  Proof 
of  embezzlement  will  not  sustain  a  charge  of  larceny.  Commonwealth 
V.  Simpson,  9  Met.  138  ;  Commonwealth  /•.  King,  9  Cush.  2<S4.  In  the 
case  last  cited,  it  is  said  by  Mi'.  Justice  Dewey  that  "  the  oflences  are 
by  us  considered  so  far  distinct  as  to  require  them  to  be  charged  in  such 
terms  as  will  indicate  the  precise  offence  intended  to  be  charged."  "  If 
the  goods  are  not  in  the  actual  or  constructive  possession  of  the  master, 
at  the  time  they  are  taken,  the  offence  of  the  servant  will  be  embezzle- 
ment, and  not  larcen3\"  We  see  no  reason  why  the  converse  of  the 
proposition  is  not  true,  that,  if  the  property  is  in  the  actual  or  construc- 
tive possession  of  the  master  at  the  time  it  is  taken,  the  offence  will  be 
larceny,  and  not  embezzlement.  And  it  has  been  so  held  in  England. 
Where  the  prisoner  was  the  clerk  of  A.,  and  received  money  from  the 
hands  of  another  clerk  of  A.  to  pa}'  for  an  advertisement,  and  kept 
part  of  the  money,  falsely  representing  that  the  advertisement  had  cost 
more  than  it  had  ;  it  was  held  that  this  was  larceny-  and  not  embezzle- 
ment, because  A.  had  had  possession  of  the  money  by  the  hands  of  the 
other  clerk.  Rex  v.  Murray,  1  Mood.  276  ;  s.  c.  5  C  &  P.  145.  The 
distinction  is  between  custody  and  possession.  A  servant  who  receives 
from  his  master  goods  or  mone}'  to  use  for  a  specific  purpose  has  the 
custody  of  them,  but  the  possession  remains  in  the  master.  . 

The  St.  14  &  15  Vict.  c.  100,  §  13,  provided  that  whenever,  on  the 
trial  of  an  indictment  for  embezzlement,  it  should  be  proved  that  the 
taking  amounted  to  larcenj',  there  should  not  be  an  acquittal,  but  a 
conviction  might  be  had  for  larcen}'.  We  have  no  similar  statute  in 
this  Commonwealth. 

In  the  present  case,  the  defendant,  who  was  employed  as  a  servant, 
was  directed  by  one  member  of  the  firm  who  employed  him  to  take  a 
sum  of  money  from  him  to  another  member  of  the  firm.     He  had  the 

1  The  opiuion  only  is  given,  it  sufficiently  states  the  case. 


CHAP.  XIIL]  commonwealth   V.   FOSTER.  959 

custody  of  the  money,  but  not  any  legal  or  separate  possession  of  it. 
The  possession  remained  in  his  master.  His  fraudulent  and  feloni- 
ous appropriation  of  it  was  therefore  larceny,  and  not  embezzlement. 
Commonwealth  v.  O'Malley,  97  Mass.  584  ;  Commonwealth  v.  Hays, 
U  Gray,  62  ;  People  v.  Call,  1  Denio,  120;  United  States  v.  Clew,  4 

Wash.  C.  C.  702. 

In  People  v.  Hennessey,  15  Wend.  147,  cited  for  the  Commonwealth, 
the  money  embezzled  by  the  defendant  had  never  come  into  the  posses- 
sion of  his  master.  And  in  People  v.  Dalton,  15  Wend.  581,  the 
possession   of  the  defendant  was  that  of  a  bailee. 

JEJxceptions  sustained.^ 


COMMONWEALTH  v.  FOSTER. 
Supreme  Judicial  Court  of  Massachusetts.     1871. 

[Reported  107  Massachusetts,  221.] 

Indictment  for  embezzlement,  found  at  July  term,  1870,  of  the 
Superior  Court  in  Suffolk. 

At  the  trial,  before  W^ilkinsou,  J.,  John  Langley  testified  that  about 
May  13,  1870,  being  in  need  of  money,  he  made  two  promissory  notes 
payable  to  his  own  order  and  indorsed  by  himself,  payable  in  four  and 
six  months  respectively,  for  $1250  each,  and  delivered  them  to  the  de- 
fendant upon  the  special  agreement  of  the  defendant  to  sell  the  notes 
and  deliver  the  proceeds  to  Nathan  A.  Langley,  a  brother  of  the  wit- 
ness, charging  a  commission  for  his  services  ;  that  at  the  same  time, 
and  as  a  part  of  the  transaction,  the  defendant  gave  to  the  witness,  as 
receipts,  the  defendant's  own  notes  of  the  same  tenor  and  date  as  those 
delivered  to  him  by  the  witness,  which  were- deposited  by  the  witness 
with  his  brother,  to  be  by  him  given  up  to  the  defendant  when  the  lat- 
ter should  deliver  the  proceeds  of  the  witness's  notes  in  pursuance  of 
the  agreement  before  stated ;  and  that  he  did  not  know  whether  the 
defendant  was  a  broker  or  not,  and  did  not  deal  with  him  as  such. 

It  further  appeared  that  the  defendant  sold  tlie  notes  of  John  Lang- 
ley to  one  Wilson  for  $1000  in  cash,  and  a  mortgage  on  real  estate 
valued  at  $1000  ;  and  that  he  had  not  delivered  any  part  of  the  pro- 
ceeds to  John  Langley  or  his  brother,  but,  when  asked  for  them  by 
the  former,  replied  that  he  had  used  them  and  was  unable  to  deliver 
them.  It  did  not  appear  that  John  Langley  or  his  brother  had  ten- 
dered to  the  defendant  the  notes  given  by  him. 

Upon  the  close  of  the  evidence  for  the  Commonwealth,  the  defend- 
ant demurred  thereto,  as  insufficient  to  support  a  verdict  of  guilty  ;  but 
the  judge  overruled  the  demurrer.  The  defendant  then  testified  that 
he  was  a  real  estate  broker ;   and  that  he  negotiated  the  notes  in  the 

1  Ace.  Eex  I'.  Sullens,  1  Moo.  C.  C.  129;  Reg.  v.  Masters,  3  Cox  C  C.  178.  —Ed. 


960 


PEOPLE    V.   HURST. 


[chap.  XIII. 


V 


manner  testified  to  by  John  Langley,  and  used  the  money,  partly  in 
business  as  a  provision  dealer,  in  which  he  was  also  engaged  at  the 
time,  and  partly  in  paying  his  debts. 

The  judge  thereupon  instructed  the  jury  "  that  it  was  a  question  of 
fact,  for  them  to  decide  upon  the  evidence,  whether  John  Langley 
employed  the  defendant  as  a  broker ;  that  if  the  defendant  was  em- 
ployed merely  to  sell  the  notes,  receive  the  proceeds  and  pay  over  the 
same  specifically  to  the  brother,  without  any  authority  to  mix  them 
with  his  own  funds,  a  fraudulent  conversion  of  them  would  be  em- 
bezzlement ;  but  that  if  he  was  employed  as  a  broker,  to  negotiate  the 
notes  in  the  course  of  his  business,  with  authority,  derived  from  the 
nature  of  that  business  or  otherwise,  to  mix  the  proceeds  as  aforesaid, 
his  use  of  them  would  not  be  embezzlement."  The  jury  returned  a 
verdict  of  guilty,  and  the  defendant  alleged  exceptions. 

C.  R.  Train,  for  the  defendant. 

C.  Allefi,  Attorney  General,  for  the  Commonwealth. 

Br  THE  CouHT.  Under  the  instructions  given  them,  the  jury  must 
have  found  that  the  defendant  was  an  agent  within  the  statute,  and 
embezzled  his  employer's  money.  The  notes  given  by  him  appear  to 
have  been  given  to  answer  the  purpose  of  receipts,  and  not  for  the 
purpose  of  transferring  to  him  any  property  in  the  notes  received  by 
him,  or  the  money  received  by  him  on  the  sale  of  the  notes.  Com- 
monwealth V.  Stearns,  2  Met.  343  ;  Commonwealth  v.  Libbey,  11 
Met.  64.  Exceptions  overruled.'^ 


PEOPLE  V.  HURST. 
Supreme  Court  of  Michigan.     1886. 

[Reported  62  Michigan,  276.] 

Campbell,  C.  J.  Respondent  was  convicted  of  embezzling  S275, 
alleged  to  have  been  put  in  his  hands  by  one  Lena  J.  Smith  as  her 
agent.  Respondent  was  a  lawyer,  and  also  engaged  more  or  less  in 
renting  houses.  Mrs.  Smith  formed  his  acquaintance  while  seeking  to 
rent  a  house.  She  got  him  to  lend  §400  for  her,  which  he  did  on  mort- 
gage. She  further  said  she  had  81,100  more  to  lend.  He  said  he  had 
a  place  for  6700,  which  he  actually  lent  on  first  mortgage.  He  also 
showed  her  a  letter  from  a  man  who  had  a  parcel  of  forty  acres  of 
land  to  sell,  and  he  wanted  her  to  give  him  the  money  to  buy  it,  as 
he  knew  of  a  purchaser  who  would  buy  at  an  advance.  She  handed 
him  8400  to  buy  the  land,  and  said  he  might  have  the  profit.  He  told 
her  where  the  land  was,  but  she  could  not  remember,  and  did  not  tes- 

1  See  Mulford  i-.  People,  139  111.  586.  — Ed. 


^ 


CHAP.  XIII.]  PEOPLE    V.    HURST.  '  961 

tify  upon  that  point.  This  was  on  March  31,  1882.  The  embezzle- 
ment is  charged  as  of  that  clay. 

About  the  middle  of  April  she  saw  him  at  his  house,  intoxicated. 
She  asked  him  for  her  papers,  and  if  he  had  invested  the  money,  and 
he  shook  his  head,  and  said  he  had  been  "on  a  drunk."  She  asked 
for  her  money,  and  he  gave  her  $100,  and  a  chattel  mortgage  which 
he  owned  for  $25.  She  asked  him  if  that  was  all  he  had,  and  he  said 
it  was,  and  promised  to  pay  the  balance  in  a  month  or  two,  and  asked 
her  to  wait  on  him.  She  called  on  him  frequently,  and  in  the  fall  he 
conveyed  to  her  forty  acres  of  land  in  Cheboygan  County  as  security 
until  he  could  pay  her.  He  said  he  was  selling  some  land  for  a  lady 
in  Springwells  ;  and,  if  he  succeeded,  his  commissions  would  exceed 
his  debt  to  her,  and  he  would  pay  her,  and  she  could  return  the  deed, 
which  she  need  not  record,  but  he  would  pay  for  recording.  She 
agreed  to  wait  on  him,  and  hold  the  deed  as  security  a  little  longer, 
until  he  could  sell  the  twenty-five  acres  referred  to.  She  subsequently 
dunned  him  frequently,  and,  finding  he  had  an  interest  in  a  patent 
right,  asked  him  to  assign  that  to  her  as  security,  which  he  did. 

There  was  some  other  testimony  which  was  material,  in  favor  of 
defendant,  on  which  his  counsel  made  some  points,  which  we  do  not 
now  think  it  necessary  to  decide. 

In  our  opinion,  the  testimony  did  not  make  out  a  ease  of  embezzle- 
ment. Before  that  offence  can  be  made  out,  it  must  distinctly  appear 
that  the  respondent  has  acted  with  a  felonious  intent,  and  made  an  in- 
tentionally wrong  disposal,  indicating  a  design  to  cheat  and  deceive 
the  owner.  A  mere  failure  to  pay  over  is  not  enough  if  that  intent  is 
not  plainly  apparent.  This  was  decided  in  People  v.  Galland,  55  Mich. 
628.  See  also  Reg.  v.  Norman,  1  C.  &  M.  501  ;  Reg.  v.  Creed,  1  C. 
&  K.  63  ;  Rex  v.  Hodgson,  3  C.  &  P.  422  ;  2  Russ.  Cr.  182  ;  2  Bish. 
Crim.  Law,  §§  376,  377. 

In  this  case  there  was  nothing  indicating  concealment  or  a  felonious 
disposition.  A  candid  admission  was  made  at  once  on  inquiry,  and 
partial  payment  was  made  and  security  given  at  different  times,  when 
asked.  The  debt  was  admitted  and  recognized  as  a  debt  on  both 
sides.  Whatever  wrong  may  have  been  done,  there  was  no  embezzle- 
ment proven. 

The  conviction  must  be  quashed,  and  the  court  below  advised  to 
discharge  the  prisoner. 

The  other  justices  concurred.^ 

1  Ace.  People  v.  Wadsworth,  63  Mich.  500.  —  Ea 


61 


[chap.  XIV. 


:P  ^r 


^^A/ 


"Nj 


^ 


.^ 


^' 


^^  SECTION  I. 

The  Question  of  Title. 

REGINA  V.   KILHAM. 
Crown  Case  Reserved.     1870. 

[Reported  Law  Reports,  1  Crown  Cases  Reserved,  261.] 

Case  stated  by  the  Recorder  of  York. 

Indictment  under  24  &  25  Vict.  c.  96,  §  88,  for  obtaining  goods  by 
false  pretences. 

Tlie  prisoner  was  tried  at  the  last  Easter  Quarter  Sessions  for  York, 
'he  prisoner,  on  the  19th  of  March  last,  called  at  the  livery  stables  of 
Messrs.  Thackray,  who  let  out  horses  for  hire,  and  stated  that  he  was 
sent  by  a  Mr.  Gibson  Hartley  to  order  a  horse  to  be  ready  the  next 
morning  for  the  use  of  a  son  of  Mr.  Gibson  Hartley,  who  was  a  cus- 
tomer of  the  Messrs.  Thackray.  Accordingly,  the  next  morning  the 
prisoner  called  for  the  horse,  which  was  delivered  to  him  by  the  hostler. 
The  prisoner  was  seen,  in  the  course  of  the  same  day,  driving  the 
horse,  which  he  returned  to  Messrs.  Thackray's  stables  in  the  even- 
ing. The  hire  for  the  horse,  amounting  to  7s.,  was  never  paid  by  the 
prisoner. 

The  pi'isoner  was  found  guilty. 

The  question  was,  whether  the  prisoner  could  properly  be  found 
guilty  of  obtaining  a  chattel  by  false  pretences  within  the  meaning  of 
24  &  25  Vict.  c.  96,  §  88. 

The  case  of  Regina  v.  Boulton,  1  Den.  C.  C.  508,  was  relied  on  on 
the  part  of  the  prosecution. 

The  case  was  argued  before  Bovill,  C.  J.,  Willes,  Byles,  and 
Hannen,  JJ.,  and  Cleasby,  B. 

May  7.     No  counsel  appeared  for  the  prisoner.- 

Simpsoyi,  for  the  prosecution.^ 


J3 


SECT.  I.] 


KEGINA    V.    KILHAM. 


963 


BoviLL,  C.  J.  "We  are  of  opinion  that  the  conviction  in  this  case 
cannot  be  supported.  The  Stat.  24  &  25  Vict.  c.  96,  §  88,  enacts 
that,  "  whosoever  shall,  by  any  false  pretence,  obtain  from  any 
other  person  any  chattel,  money,  or  valuable  security,  with  intent  to 
defraud,  shall  be  guilty  of  misdemeanor."  The  word  "obtain"  in 
this  section  does  not  mean  obtain  the  loan  of,  but  obtain  the  property 
in,  any  chattel,  etc.  This  is,  to  some  extent,  indicated  by  the  pro- 
viso, that  if  it  be  proved  that  the  person  indicted  obtained  the  prop- 
erty in  such  manner  as  to  amount  in  law  to  larceny,  he  shall  not,  by 
reason  thereof,  be  entitled  to  be  acquitted ;  but  it  is  made  more  clear 
by  referring  to  the  earlier  statute  from  which  the  language  of  §  88  is 
adopted.  7  «fe  8  G.  IV.  c.  29,  §  53,  recites  that  "  a  failure  of  jus- 
tice frequently  arises  from  the  subtle  distinction  between  '  larceny 
and  fraud,'"  and  for  remedy  thereof  enacts  that  "if  any  person 
shall,  by  any  false  pretence,  obtain,"  etc.  The  subtle  distinction 
which  the  statute  was  intended  to  remedy  was  this :  Tliat  if  a  person 
by  fraud  induced  another  to  part  with  the  possession  only  of  goods 
and  converted  them  to  his  own  use,  this  was  larceny ;  while  if  he 
induced  another  by  fraud  to  part  with  the  property  in  the  goods  as  well 
as  the  possession,  this  was  not  larceny. 

But  to  constitute  an  obtaining  by  false  pretences  it  is  equally  essen- 
tial, as  in  larceny,  that  there  shall  be  an  intention  to  deprive  the 
owner  wholly  of  his  property,  and  this  intention  did  not  exist  in  the 
case  before  us.  In  support  of  the  conviction  the  case  of  Regina  v. 
Boulton  was  referred  to.  There  the  prisoner  was  indicted  for  obtain- 
ing by  false  pretences  a  railway  ticket  with  intent  to  defraud  the  com- 
pany. It  was  held  that  the  prisoner  was  rightly  convicted,  though 
the  ticket  had  to  be  given  up  at  the  end  of  the  journey.  The  reasons 
for  this  decision  do  not  very  clearly  appear,  but  it  may  be  distin- 
guished from  the  present  case  in  this  respect,  —  that  the  prisoner,  by 
using  the  ticket  for  the  purpose  of  travelling  on  the  railway,  entirely 
converted  it  to  his  own  use  for  the  only  purpose  for  which  it  was 
capable  of  being  applied.  In  this  case  the  prisoner  never  intended  to 
deprive  the  prosecutor  of  the  horse  or  the  property  in  it,  or  to  appro- 
priate it  to  himself,  but  only  intended  to  obtain  the  use  of  the  horse 
for  a  limited  time.     The  conviction  must  therefore  be  quashed. 

Conviction  quashed.^ 


^''r 


1  See  Reg.  v.  Watson,  7  Cox  C.  C.  364.  —Ed. 


964  EEX   V.    ADAMS.  [CHAP.  XIV. 


REX  V.   ADAMS. 
Crown  Case  Reserved.     1812. 

[Reported  Russell  ^  Rynn,  225.] 

The  prisoner  was  tried  before  Mr.  Justice  Chambre,  at  the  Lent 
Assizes  held  at  Taunton,  in  the  year  1812,  for  a  grand  larceny  in 
stealing  u  hat,  stated  in  one  count  to  be  the  property  of  Robert  Beer 
and  in  another  count  to  be  the  property  of  John  Paul. 

The  substance  of  the  evidence  was,  that  the  prisoner  bought  a  hat 
of  Robert  Beer,  a  hat-maker  at  Ilminster.  That  on  the  18th  of  Janu- 
ary he  called  for  it,  and  was  told  it  would  be  got  ready  for  him  in  half 
an  hour,  but  he  could  not  have  it  without  paying  for  it. 

While  he  remained  with  Beer,  Beer  showed  him  a  hat  which  he  had 
made  for  one  John  Paul ;  the  prisoner  said  he  lived  next  door  to  him, 
and  asked  when  Paul  was  to  come  for  his  hat,  and  was  told  he  was  to 
come  that  afternoon  in  half  an  hour  or  an  hour.  He  then  went  av\ay, 
saying  he  would  send  his  brother's  wife  for  his  own  hat. 

Soon  after  he  went  he  met  a  boy  to  whom  he  was  not  known.  The 
prisoner  asked  the  boy  if  he  was  going  to  Ilminster,  and  being  told 
that  he  was  going  thither,  he  asked  him  if  he  knew  Robert  Beer  there, 
telling  him  that  John  Paul  had  sent  him  to  Beer's  for  his  hat,  but 
added  that  as  he,  the  prisoner,  owed  Beer  for  a  hat  which  he  had  not 
money  to  pay  for,  he  did  not  like  to  go  himself,  and  therefore  desired 
the  boy  (promising  him  something  for  his  trouble)  to  take  the  message 
from  Paul  and  bring  Paul's  hat  to  him  the  prisoner ;  he  also  told  him 
that  Paul  himself,  whom  he  described  by  his  person  and  a  peculiarity 
of  dress,  might  perhaps  be  at  Beer's,  and  if  be  was  the  boy  was  not  to 
go  in. 

The  prisoner  accompanied  him  part  of  the  way,  and  then  the  boy 
proceeded  to  Beer's,  where  he  delivered  his  message  and  received  the 
hat,  and  after  carrying  it  part  of  the  way  for  the  prisoner  by  his 
desire,  the  prisoner  received  it  from  him,  saying  he  would  take  it  him- 
self to  Paul. 

The  fraud  was  discovered  on  Paul's  calling  for  his  hat  at  Beer's, 
about  half  an  hour  after  the  boy  had  left  the  place  ;  and  the  prisoner 
was  found  with  the  hat  in  his  possession  and  apprehended. 

From  these  and  other  circumstances,  the  falsity  of  the  prisoner's 
representation  and  his  fraudulent  purpose  were  sufficiently  established  ; 
but  it  was  objected  on  the  part  of  the  prisoner  that  the  offence  was  not 
larceny,  and  that  the  indictment  should  have  been  upon  the  statute 
for  obtaining  goods  by  false  pretences. 

The  prisoner  was  convicted,  but  the  learned  judge  forbore  to  pass 
sentence,  reserving  the  question  for  the  opinion  of  the  judges. 


SECT.  II.]  EEGINA  V.    ROBINSON.  965 

In  Easter  term,  25th  of  April,  1812,  all  the  judges  were  present 
(except  Lord  EUeuborough,  Mansfield,  C.  J.,  and  Lawrence,  J.),  when 
they  held  that  the  conviction  was  wrong ;  that  it  was  not  larceny,  but 
obtaining  goods  under  a  false  pretence.^ 


SECTION   II. 
Property. 

REGINA  V.    ROBINSON. 
Crown  Case  Resi^rved.     1859. 

[Reported  Bell  C.  C.  34.] 

The  following  case  was  reserved  by  the  Recorder  of  Liverpool. 

The  prosecutor,  who  resided  at  Hartlepool,  was  the  owner  of  two 
dogs,  which  he  advertised  for  sale.  The  prisoner,  Samuel  Robinson, 
having  seen  the  advertisement,  made  application  to  the  prosecutor  to 
have  the  dogs  sent  to  him  at  Liverpool  ou  trial,  falsely  pretending  that 
he  was  a  person  who  kept  a  man-servant.  By  this  pretence  the  prose- 
cutor was  induced  to  send  the  dogs  to  Liverpool,  and  the  prisoner 
there  obtained  possession  of  them  with  intent  to  defraud,  and  sold 
them  for  his  own  benefit.  The  dogs  were  Pointers,  useful  for  the 
pursuit  of  game,  and  of  the  value  of  £5  each. 

At  the  Liverpool  Borough  Sessions,  holden  in  December,  1858,  the 
prisoner  was  indicted,  convicted,  and  sentenced  to  seven  years  penal 
servitude,  under  the  statute  7  &  8  Gr.  IV.  c.  29,  s.  53. 

On  behalf  of  the  prisoner  a  question  was  reserved  and  is  now  sub- 
mitted for  the  consideration  of  the  justices  of  either  bench  and  barons 
of  the  Exchequer,  viz.,  whether  the  said  dogs  were  chattels  within  the 
meaning  of  the  said  section  of  the  statute,  and  whether  the  prisoner 
was  rightly  convicted. 

The  prisoner  remains  in  Liverpool  Borough  Gaol  under  the  sentence 
passed  at  Sessions. 

Gilbert  Henderson, 

Recorder  of  Liverpool. 

This  case  was  argued,  on  January  29,  1859,  before  Lord  Campbell, 
C.  J.,  Martin  B.,  Crowder,  .J.,  Willes,  J.,  and  Watson,  B. 
Brett  appeared  for  the  Crown,  and  Littler  for  the  prisoner.^ 

1  Ace.  Keg.  V.  Butcher,  8  Cox  C.  C.  77;  People  v.  Johnson,  12  Johns.  292.  And 
see  Com.  v.  Jeffries,  7  All.  548.  See  the  judgment  of  Cleasby,  B  ,  in  Reg.  v.  Middle- 
ton,  L.  R.  2  C.  C.  38,  ante.  As  to  the  title  to  property  obtained  by  false  pretences,  see 
Lindsay  v.  Cundy,  1  Q.  B.  D.  348,  2  Q.  B.  D.  96,  3  App.  Cas.  459  ;  Bentley  u.  Vilmont, 
12  App.  Cas.  471.  —  Ed. 

2  Arguments  of  counsel  are  omitted. 


966  PEOPLE   V.    THOMAS.  [CHAP.  XIV. 

Lord  Campbell,  C.  J.  It  is  admitted  that  dog-stealing  is  not 
larceny  at  common  law,  and  a  specific  punishment  of  a  milder  charac- 
ter has  been  enacted  by  the  later  statute,  which  makes  the  offence 
a  misdemeanor.  That  being  so,  it  would  be  monstrous  to  say  that 
obtaining  a  dog  by  false  pretences  comes  within  the  statute  7  &  8  G. 
IV.  c.  2y,  s.  53,  by  which  the  offender  is  liable  to  seven  years  penal 
servitude.  My  brother  Coleridge  used  to  say  that  no  indictment 
would  lie  under  that  section  unless,  if  the  facts  justified  it,  the  pris- 
oner could  be  indicted  for  larceny,  and  that  is  now  my  opinion. 

Martin,  B.  I  think  this  conviction  cannot  be  sustained.  The 
question  is  one  entirely  of  the  construction  of  the  statute. 

WiLLES,  J.  From  the  Year  Books  downwards,  including  the  case 
of  Swans,  7  Rep.  15  b,  dogs  have  always  been  held  not  to  be  the  sub- 
ject of  larceny  at  common  law. 

The  other  learned  judges  concurred. 

Conviction  quashed.^ 


PEOPLE   V.   THOMAS. 
Supreme  Court  of  New  York.     1842. 

[Reported  3  Hill,  169.] 

Certiorari  to  the  Oneida  General  Sessions,  where  Thomas  was  con- 
victed of  obtaining  mone\'  by  false  pretences,  of  one  Jones,  The  case 
turned  upon  the  sutliciency  of  the  indictment,  which  charged  substan- 
tially the  following  facts :  Jones,  having  executed  his  negotiable  note 
to  Thomas  for  828.28,  dated  the  19th  of  February,  1838,  and  payable 
one  day  after  date,  the  latter,  in  March  afterward,  called  for  payment, 
falsely  pretending  to  Jones  that  the  note  had  either  been  lost  or 
burned  up  ;  by  which  false  pretences  Thomas  unlawfully,  etc.,  obtained 
from  Jones  the  sum  of  $28.28,  with  intent  to  cheat  and  defraud  Jones  ; 
whereas  in  truth,  etc.,  the  note  had  not  been  lost  or  burned  up,  all 
which  the  said  Thomas,  when  he  made  the  false  pretence  and  obtained 
the  money,  well  knew,  etc. 

Evidence  was  given,  at  the  trial,  of  the  above  facts  ;  and  also,  that 
in  March,  1840,  Thomas  negotiated  the  note,  for  value,  to  one  Anson 
Shove,  without  apprizing  the  latter  that  it  had  been  paid.  The  court 
below  instructed  the  jury  that  the  proof  was  sufficient  to  convict ;  to 
which  the  defendant's  counsel  excepted.  A  verdict  was  rendered, 
finding  the  defendant  guilty. 

C.  Tracy,  for  the  defendant. 

T.  Jenkins  (district  attorney) ,  contra. 

Per  Curiam.  Non  constat  from  the  indictment,  that  Jones  sus- 
tained any  damage  by  the  false  representation  ;  nor  that  there  was  an 

1  Ace.  State  v.  Barrows,  11  Ire.  477.  —  Ed. 


SECT.  II.]  STATE   V.    BLACK.  967 

intent  on  the  part  of  Thomas,  at  the  time  of  the  representation,  to 
work  any  damage.  The  note  was  due ;  and  payment  made.  This 
was  the  only  consequence  —  a  thing  which  Jones  was  bound  to  do. 
A  false  representation,  by  which  a  man  may  be  cheated  into  his  duty, 
is  not  within  the  statute.  It  was  said  in  argument  that  the  subsequent 
negotiation  of  the  note  by  Thomas  obviated  the  difficulties  adverted 
to.  The  note  being  over  due  when  the  latter  fact  took  place,  it  is 
difficult  to  see  judicially,  that  Jones  would  be  injured  by  it.  Whether 
he  would  or  would  not,  is  merely  speculative,  depending  on  his  pre- 
caution in  providing  himself  with  proper  evidence.  It  is  enough, 
however,  to  say  that  the  indictment  does  not  charge  the  subsequent 
act  of  negotiation  as  entering  into  the  defendant's  design  when  he 
made  the  representation ;  nor  is  the  act  itself  even  mentioned. 

2{ew  trial  ordered.^ 


STATE  V.   BLACK. 
Supreme  Court  of  Wisconsin.     1890. 

[Reported  75  Wisconsin,  490.] 

Cassodat,  J.'^  See.  4423,  R.  S.,  punishes  the  obtaining  of  property 
or  a  signature  under  the  circumstances  therein  mentioned.  The  ques- 
tion here  presented  relates  entirely  to  the  obtaining  of  property.  So 
much  of  that  section  as  pertains  to  that  question  reads  :  "  Any  person 
who  shall  designedly^  by  any  false  pretense,  or  by  any  privy  or  false 
token,  and  with  intent  to  defraud,  obtain  from  any  other  person  any 
money,  goods,  wares,  merchandise,  or  other  property,  .  .  .  shall  be 
punished,"  etc.  To  sustain  a  conviction  under  this  section  four  things 
must  concur.  It  sufficiently  appears  from  the  record  that  three  of 
those  things  co-existed  in  the  ease  at  bar,  —  that  is  to  say  it  sufficiently 
appears  that  the  defendant  (1)  "  designedly,"  (2)  by  means  of  the 
false  pretense  mentioned,  (3)  "  and  with  intent  to  defraud,"  obtained 
the  board  and  lodging  mentioned.  The  only  question,  therefore, 
requiring  consideration  here  is  whether  the  obtaining  of  such  board 
and  lodging  was,  in  legal  effect,  the  obtaining  of  "  money,  goods, 
wares,  merchandise,  or  other  property,"  within  the  meaning  of  the 
section. 

From  the  very  wording  of  the  statute  it  is  manifest  that  no  complete 
offense  can  be  committed  under  it  until  the  "  money,  goods,  wares, 
merchandise,  or  other  property,"  is  actually  obtained  by  the  offender. 
This  being  so,  it  is  equally  obvious  that  if  the  statute  applies  to  the 
obtaining  of  board  and  lodging,  then  each  meal  of  board  obtained 
constitutes  a  separate  offense ;  and  the  same  would  be  true  of  each 

1  Ace.  In  re  Cameron,  44  Kas.  64  ;  Com.  v.  McDuffy,  12G  Mass.  467.  —  Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


963 


STATE   V.    BLACK.  [CHAP.  XIV. 


nio-bt's  lodging.  If  the  section  applies  to  board  and  lodging,  then, 
for  the  same  reason,  it  would  apply  to  almost  any  service  or  use. 
Another  serious  difficulty  with  such  application  in  the  case  at  bar  is 
the  absence  from  the  record  of  any  certain  and  definite  description  of 
the  property  actually  obtained.  Many  of  the  authoiities  hold  that  in 
the  information  or  indictment  in  such  cases,  "  the  property  should  be 
described  with  as  much  accuracy  and  particularity  as  in  indictments 
for  larceny."  State  v.  Kube,  20  Wis.  225  ;  s.  c.  91  Am.  Dec.  395. 
Where  the  description  of  the  property  is  uncertain,  the  defect  is  fatal. 
Ibid.  We  are  to  remember  that  it  is  a  criminal  statute  we  are  con- 
struing. It  should  not  be  so  construed  as  to  multiply  crimes,  unless 
required  by  the  context.  The  word  "property"  is,  in  many  cases, 
construed  to  include  "  things  in  action  and  evidences  of  debt."  Subd. 
3,  4,  sec.  4972,  R.  S.  But  the  words  "  other  property,"  in  the  statute 
quoted,  must,  under  the  familiar  rule,  noscitur  a  sociis,  be  limited  to 
such  tangible  classes  of  property  as  are  therein  previously  enumerated  ; 
that  is  to  say,  "  money,  goods,  wares,  merchandise,  and  other  prop- 
erty "  of  that  description.  Tliis  rule  has  frequently  been  applied  by 
this  court,  especially  to  penal  statutes.  Jensen  r.  State,  GO  Wis. 
582,  and  cases  there  cited.  See,  also,  Gibson  v.  Gibson,  43  Wis.  33  ; 
Estate  of  Kirkendall,  43  Wis.  179  ;  Kelley  v.  Madison,  43  Wis.  645. 

The  principle  governing  the  case  at  bar  is  somewhat  similar  to  that 
involved  in  People  v.  Haynes,  14  Wend.  546  ;  s.  c.  28  Am.  Dec.  530. 
In  that  case  merchandise  was  purchased,  and  placed  by  the  seller  in  a 
box,  marked  with  the  buyer's  name  and  address,  and  delivered  to  the 
carrier  named  by  the  purchaser,  to  be  delivered  at  his  residence ;  but 
the  seller,  before  delivering  the  shipper's  receipt  and  invoice,  having 
learned  that  the  purchaser  was  embarrassed,  asked  him  in  regard 
thereto,  whereupon  the  buyer  made  false  and  fraudulent  represen- 
tations as  to  his  condition,  and,  in  consequence  thereof,  the  seller 
delivered  to  the  buyer  the  shipper's  receipt  and  invoice,  and  did  not 
stop  the  goods  in  transitii ;  and  it  was  held  that  the  buyer  was  not 
criminally  liable  for  obtaining  the  goods  by  false  pretenses,  since  the 
goods  were  in  law  obtained  when  they  were  delivered  to  the  carrier, 
which  was  before  the  false  pretenses  were  made. 

The  construction  of  the  statute  indicated  has  additional  force  from 
the  fact  that  the  same  section  punishes  the  obtaining  by  false  pretenses 
of  a  signature  to  a  written  instrument,  the  false  making  whereof  would 
be  punishable  as  forgery.  Sec.  4423,  R.  S.  This  clearly  covers  some 
"  things  in  action  and  evidences  of  debt,"  and  by  necessary  implica- 
tion excludes  others,  as,  for  instance,  a  mere  credit,  as  here.  We 
must  hold  that  the  words  "or  other  property"  do  not  include  the 
mere  obtaining  of  board  and  lodging  under  the  circumstances  stated. 

The  result  is  that  the  first  question  propounded  is  answered  in  the 
negative-     This  renders  it  unnecessary  to  answer  the  second  question. 
By  the  Court.  Ordered  accordii^gly} 

1  Ace.  Eeg.  V.  Gardner,  7  Cox  C.  C.  136.  — Ed. 


^, 


SECT.  III.] 


KEX    V.   GOODHALL. 


.^:d 


969 


.       /^^^ 


SECTION  III 

TJie  Pretence 

REX  V.   GOODHALL. 
Crown  Case  Reserved.     1821. 

[Reported  Russell  ^-  Ryan,  461.] 

The  prisoner  was  tried  before  Mr.  Baron  Garrow,  at  the  Stafford 
summer  Assizes,  in  the  year  1821,  on  an  indictment,  charging  that  he, 
being  an  ill-designing  person,  and  a  common  cheat,  and  intending.  to__^    , 
cheat  and  defraud  one  Thomas  Perks,  of  his  goods,  wares,  and  mer-   ^^ 


chandizes,  on  the  17th  of  August,  1821,  at  the  parish  of  Wolverhamp-      p  ^^ 

ton;  unlawfully,  knowingly,  and  designedly,  did  falsely  pretend  that      ^^-    ^ 
if  he,  the  said  Thomas  Perks,  would  sell  to  him,  the  prisoner,  the  car- 
cases of  three  sheep  and  two  legs  of  veal,  and  send  the  same  to  him 
at  Blonwick,  he,  the  said  prisoner,  would  pay  for  the  same  on  delivery, 
and  send  the  money  back  by  the  servant  of  the  said  Thomas  Perks  ; 
by  which  said  false  pretences,  he,  the  said  prisoner,  did  obtain  from 
the  said  Thomas  Perks  two  hundred  and  twenty  pounds  weight   of^ 
mutton,  value  £4,  and  thirty  pounds  weight  of  veal,  value  10s.,  his 
property,  with  intent  to  cheat  him  of  the  same.     Whereas,  in  truth 
and  in  fact,  the  said  prisoner  did  not,  at  the  time  of  buying  the  said 
carcases  and  legs  of  veal,  intend  to  pay  for  the  same  on  delivery. 
And  whereas,  in  truth  and  in  fact,  the  said  prisoner  did  not  pay  for 
the  same  on  delivery.     And  whereas,  in  truth  and  in  fact,  the  said  ^  ^ 
prisoner  did  not  send  the  money  for  the  same  back  by  the  servant  of  ^  J^ 
him  the  said  Thomas  Perks,  against  the  form  of  the  statute,  tfec.  ^^  L'^^^V" 

It  appeared  in  evidence,  that  the  prosecutor,  Thomas  Perks,  was  a 
butcher  at  Wolverhampton;  and  that,  on  the  17th  of  August,  1821, 
the  prisoner  came  to  his  shop  to  purchase  three  sheep  and  two  legs  of  /^       "\>-  / 
veal ;  on  being  told  by  the  prosecutor  that  he  would  not  trust  him,  he  ^-^--^^^:Jf      C^T 


promised  the  prosecutor,  if  he  would  send  the  sheep  and  veal  in  good 
time  on  the  following  morning,  he  would  remit  the  money  back  by  the^-'*^^ 
bearer. 

The  meat  was  accordingly  sent  on  the  18th  of  August,  by  the  prose- 
cutor, and  delivered  to  the  prisoner  by  the  prosecutor's  servant,  who 
asked  him  for  the  money ;  and  said,  if  he  did  not  give  it  him,  he  must 
take  the  meat  back  again.  The  prisoner  replied,  "Aye,  sure!"  and 
wrote  a  note ;  and  told  the  prosecutor's  servant  to  take  it  to  his  mas- 
ter, and  it  would  satisfy  him.  The  note  (of  which  the  following  is  a 
copy)  was  delivered  to  the  prosecutor  by  his  servant :  — 

"  Mr.  Perks,  Sir,  I  have  a  bill  of  Walsall  bank,  which  is  a  very 
good  one,  if  you  will  send  me  the  change,  or  I  '11  see  you  on  Wednesday 
certain."  "  Your's,  M.  G." 


970 


REX   V.   WAKELING. 


[chap.  XIV. 


The  jury  found  the  prisoner  guilty ;  and  said  they  were  of  opinion, 
that  at  the  time  the  prisoner  applied  to  Perks,  he  knew  Perks  would 
not  part  with  the  meat  without  the  money ;  and  that  he  promised  to 
send  back  the  money  to  obtain  the  goods.  The  jury  also  found,  that 
at  the  time  he  applied  for  the  meat,  and  promised  to  send  back  the 
money,  he  did  not  intend  to  return  the  money ;  but  by  that  means  to 
obtain  the  meat,  and  cheat  the  prosecutor. 

The  learned  judge  respited  the  judgment,  making  an  order  that  the 
prisoner  might  be  delivered,  on  finding  bail,  to  appear  at  the  then  next 
Assizes. 

In  Michaelmas  term,  1821,  the  judges  met  and  considered  this  case. 
They  held  the  conviction  wrong  ;  being  of  opinion,  that  was  not  a  pre- 
tence within  the  meaning  of  the  statute.  It  was  merely  a  promise  for 
future  conduct,  and  common  prudence  and  caution  would  have  pre- 
vented any  injury  arising  from  the  breach  of  it.^ 


^  ^ 
^   5 

^       ^ 


-VREX  v.   WAKELING. 
Cbown  Case  Reserved.     1823. 

[Reported  Russell  ^  Ryan,  504.] 

The  prisoner  was  convicted  before  IMr.  Justice  Bayley,  at  the  gaol 
delivery  for  the  county  of  Essex,  in  January,  1823,  for  obtaining  a 
pair  of  slioes  from  Tliomas  Poole,  the  overseer  of  the  poor  of  the 
parish  of  Great  Wheltham,  fi-om  which  parish  the  prisoner  received 
parochial  relief,  by  falsely  pretending  that  he  could  not  go  to  work 
because  he  had  no  shoes,  when  he  had  really  a  sufficient  pair  of  shoes. 

It  appeared  in  evidence  that  the  prisoner  and  his  family  received 
relief  from  the  parish  ;  that  Poole,  the  overseer,  bid  the  prisoner  go  to 
work  to  help  to  maintain  his  family ;  that  the  prisoner  said  he  could 
not  because  he  had  no  shoes ;  that  Poole,  the  overseer,  thereupon 
supplied  him  with  a  pair  of  the  value  of  ten  shillings,  and  that  the 
prisoner  had,  in  fact,  at  the  time,  two  pair  of  new  shoes,  which  he  had 
previously-  received  from  tlie  parish. 

The  learned  judge  doubted  whether  this  was  a  case  within  the 
statute,  and  thought  it  right  to  lay  it  before  the  judges  for  tlieir  con- 
sideration. 

In  Hilar}'  term,  1823,  this  case  was  considered  by  the  judges,  who 
held  that  it  was  not  within  the  act,  and  that  the  conviction  was 
wrong ;  the  statement  made  by  the  prisoner  being  rather  a  false 
excuse  for  not  working  than  a  false  pretence  to  obtain  goods.'' 

1  Ace.  Reg.  V.  Lee,  9  Cox  C.  C.  304;  State  v.  Colly,  39  La.  Ann.  841  ;  State  i-. 
De  Lay,  93  Mo.  98.  See  Reg.  v.  Joues,  6  Cox  C.  C.  467 ;  State  i;.  Sarouj,  95  Mo. 
349.  —  Ed. 

*  Ace.  Reg.  V.  Stone,  1  F.  &  F.  311.  —Ed. 


SECT.  III.]  REGINA   V.    MILLS.  971 

REX  V.   BARNARD.         ^ZU^C^^  Xj^  ^l^t^^^cy(jdL<^ 
Oxford  Assizes.     1837.       Ll>-€.^5L>L^«--^^<-4   djZ^LAJf-^O*^ 

[Reported  7  Carrimjton  ^-  Payne,  784.]      Q,^(J^^JIj(jLAAJ-^^~^     \}0L(^tLA^^^~€l 

False  pretences.     The  indictment  charged  that  the  prisoner  falsely  ^^h^''l^(iA^/S-tM/<Ly 

pretended  that  he  was  an  under-graduate  of  the  University  of  Oxford,  \. ^ 

and  a  commoner  of  Magdalen  College,  by  means  of  which  he  obtained  ^ .  (t£XA.^_XAX 
a  pair  of  boot-straps  from  John  Samuel  Vincent.  ^    ^ 

It  appeared  that  Mr.  Vincent  was  a  boot-maker,  carrying  on  business  Q,X-^/Qy^XA  ■ 
in  High  Street,  Oxford  ;  and  that  the  prisoner  came  there,  wearing  a       ^  / 

commoner's  cap  and  gown,  and  ordered  boots,  which  were  not  supplied       ca/<L   ytL^-^-CJ^ 
him,  and  straps,  which  were  sent  to  him.     He  stated  he  belonged  to  '  «> 

Magdalen  College.  /'U^  <5^^  ^^ 

It  was  proved  by  one  of  the  butlers  of  Magdalen  College  that  the  j) yriG  sl4  §  aaJ^ 
prisoner  did  not  belong  to  that  college,  and  that  there  are  no  common-  *^^^^^-^^— cT*-*-*!/^^ 
ers  at  Magdalen  College.  "^^    d(Urflkf 

Holland,  B.  (in  summing  up).     If  nothing  had  passed  in  words,  I    "^^^  jfcsi^ /^^^^^ 
should  have  laid  down  that  the  fact  of  the  prisoner's  appearing  in  the 
cap  and  gown  would  have  been  pregnant  evidence  from  which  a  jury  .„, 

should  infer  that  he  pretended  he  was  a  member  of  the  university,  and      fl  x  j^yOjQ  ) 
if  so,  would  have  been  a  sufficient  false  pretence  to  satisfy  the  statute. 
It  clearly  is  so  by  analogy  to  the  cases  in  which  offering  in  payment 
the  notes  of  a  bank  which  has  failed,  knowing  them  to  be  so,  has  been 
held  to  be  a  false  pretence  without  any  words  being  used. 

Verdict,  Quilty} 


^xUc 


REGINA  V.  MILLS. 
Crown  Case  Reserved.     1857. 

[Reported  7  Cox  C.  C.  263.] 

At  the  General  Quarter  Sessions  of  the  Peace  holden  for  the  county 
of  Cambridge,  on  the  9th  January,  1857,  William  Mills  was  tried  and 
convicted  upon  the  following  indictment  for  obtaining  money  under 
false  pretences. 

The  jurors  for  our  Lady  the  Queen  upon  their  oath  present,  that 
William  Mills,  on  the  14th  day  of  November,  1856,  did  falsely 
pretend  to   one  Samuel   Free   that  the  said  William  Mills  had  cut 

1  Ace.  Rex  V.  Douglass,  7  C.  &  P.  785  n. ;  Eeg.  v.  Hunter,  10  Cox  C.  C.  642  ;  Reg. 
V.  Bull,  13  Cox  C.  C.  608;  Reg.  v.  Sampson,  52  L.  T.  772;  Reg.  v.  Randell,  16  Cox 
C.  C.  335  .—  Ed. 


972 


KEGINA   V.   MILLS. 


[chap.  XIV. 


sixty-three  fans  of  chaff  for  him  the  said  Samuel  Free,  by  which  said 
false  pretence  the  said  William  Mills  then  unlawfully  did  obtain 
from  the  said  Samuel  Free  certain  money  of  him  the  said  Samuel 
Free,  with  intent  to  defraud.  Whereas,  in  truth  and  in  fact,  the 
said  William  Mills  had  not  cut  sixty-three  fans  of  chaff,  as  the 
said  William  Mills  did  then  so  falsely  pretend  to  the  said  Samuel 
Free,  but  a  much  smaller  quantity,  to  wit,  forty-five  fans  of  chaff. 
And  the  said  William  Mills,  at  the  time  he  so  falsely  pretended  as 
aforesaid,  well  knew  the  said  pretence  to  be  false,  against  the  form  of 
the  statute,  &c.  It  appeared  from  the  evidence  that  tlie  prisoner  was 
employed  to  cut  chaff  for  the  prosecutor,  and  was  to  be  paid  twopence 
per  fan  for  as  much  as  he  cut.  He  made  a  demand  for  10s.  Qd.,  and 
stated  he  liad  cut  sixty-three  fans,  but  the  prosecutor  and  another  wit- 
ness had  seen  the  prisoner  remove  eigliteen  fans  of  cut  chaff  from  an 
adjoining  chaff-house,  and  add  them  to  the  heap  which  he  pretended 
he  had  cut,  thus  making  the  sixty-three  fans  for  which  he  charged. 
Upon  the  representation  that  he  had  cut  sixty-three  fans  of  chaff,  and 
notwithstanding  his  knowledge  of  the  prisoner  having  added  the  eigh- 
teen fans,  the  prosecutor  paid  him  the  10s.  6fZ.,  being  3s.  more  than 
the  prisoner  was  entitled  to  for  the  work  actually  performed.  It  was 
objected  on  behalf  of  the  prisoner,  first,  that  this  was  simply  an  over- 
charge, as  in  the  case  of  R.  v.  Gates,  G  Cox  Crim.  Cas.  540  ;  and  sec- 
ondly, that  as  the  prosecutor  at  the  time  he  parted  with  his  money  knew 
the  facts,  the  prisoner  could  not  be  said  to  have  obtained  the  money 
by  the  false  pretence.  Judgment  was  postponed,  and  the  prisoner 
was  discharged  upon  recognizances  to  appear  at  the  next  Quarter 
Sessions.  Tlie  opinion  of  the  Court  of  Criminal  Appeal  is  requested 
whether  the  prisoner  was  rightly  convicted  of  misdemeanor  under  the 
foregoing  indictment. 

No  counsel  was  instructed  for  the  prisoner. 

Orridge,  for  the  Crown.  Although  the  prosecutor  knew  that  the 
representation  was  false,  and  permitted  the  prisoner  to  complete  the 
offence  by  receiving  tlie  money,  that  does  not  render  tlie  ofifence  less 
in  him.  In  larceny  the  same  doctrine  is  established,  R.  v.  Eggington, 
2  B.  &  P.  508.  [CoCKBURN,  C.  J.  There  the  prosecutor  remains 
passive.  Willes,  J.  Invito  domino  is  held  to  mean  without  leave.] 
In  R.  V.  Adey,  7  C.  &  P.  140,  it  was  said  to  be  no  answer  that  the 
prosecutor  had  laid  a  plan  to  entrap  the  prisoner  into  the  commission 
of  the  offence. 

CocKBURN,  C.  J.  The  question  in  these  cases  is,  whether  the  false 
representation  is  the  immediate  motive  operating  on  the  mind  of  the 
prosecutor,  and  inducing  him  to  part  with  his  money.  It  cannot  be 
said  that  that  was  the  case  here,  because  he  paid  the  money  although 
he  knew  the  representation  to  be  false.  Unless  the  money  be  obtained 
by  the  false  pretence,  it  is  an  attempt  only. 

Coleridge,  J.  In  R.  v.  Adey  the  prosecutor  did  part  with  his 
mone}'  in  consequence  of  the  false  pretence. 


EEGINA   V.   BRYAN. 


973    NJ>^. 


SECT.  III.] 

Bramwell,  B.     I  do  not  think  he  could  recover  back  the  money  in   /^ 
a  civil  actiou. 

WiLLES,  J.     Because  it  was  paid  voluntarily  with  a  knowledge  of 
all  the  cii-cumstances.  Conviction  quashed.^ 


y\ 


r^ 


REGINA  V.  BRYAN. 

Crown  Case  Reserved.     1857. 

[Reported  7  Cox  C.  C.  312.] 

The  following  case  was  reserved  by  the  Recorder  of  London  at  the 
Central  Criminal  Court :  — 

It  was  partly  argued  before  five  of  the  learned  judges  on  a  former 
day,  but  on  account  of  the  importance  of  the  question  raised  in  this  as 
well  as  in  Reg.  v.  Sherwood,  7  Cox  C.  C.  270,  they  were  both  ordered 
to  be  reargued  before  all  the  judges. 

CASE. 

At  tlie  session  of  jail  delivery  holden  for  the  jurisdiction  of  the^^    ■^_ 
Central  Criminal  Court  on  the  second  day  of  February,  1857,  John        X^ 
Bryan  was  tried  before  me  for  obtaining  money  by  false  pretences. 
There  were  several  false  pretences  charged  in  the  different  counts  of      ^ 
the  indictment,  to  which,  as  he  was  not  found  guilty  of  them  by  the  ^— ^ 
jury,  it  is  not  necessary  to  refer.     But  the  following  pretences  were, 
among  others,  charged  :  —  ,  O 

That  certain  spoons  produced  by  the  prisoner  were   of  the   best      ^ 
quality ;  that  they  were  equal  to  Elkington's  A  (meaning  spoons  and    s^j 
forks  made  by  Messrs.  Elkington,  and  stamped  by  them  with  the  let-      ^ 
ter  A) ;  that  the  foundation  was  of  the  best  material ;  and  that  they      3 
had   as  much  silver  upon  them  as  Elkington's  A.     The  prosecutors     ^ 
were  pawnbrokers,  and  the  false  pretences  were  made  use  of  by  the   ,^ 
prisoner  for  the  purpose  of  procuring  advances  of  money  on  the  spoons  J\ 
in  question,  offered  by  the  prisoner  by  way  of  pledge,  and  he  thereby     --J 
obtained  the  moneys  mentioned  in  the  indictment  by  way  of  such  ad- 
vances.    The  goods  were  of  inferior  quality  to  that  represented  by  the 
prisoner,  and  the  prosecutors  said  that  had  they  known  the  real  quality 
they  would  not  have  advanced  money  upon  the  goods  at  any  price. 
They  moreover  admitted  that  it  was  the  declaration  of  the  prisoner  as 
to  the  quality  of  the  goods,  and  nothing  else,  which  induced  them  to 
make  the  said  advances.     The  money  advanced  exceeded  the  value  of,^ 
the  spoons.     The  jury  found  the  prisoner  guilty  of  fraudulently  repre-  |]X5' 
senting  that  the  goods  had  as  much  silver  on  them  as  Elkington's  A, 
and  that  the  foundations  were  of  the  best  material,  knowing  that  to 

1  Ace.  Reg.  V.  Jones,  15  Cox  C.  C.  475.   See  Reg.  v.  Hensler,  1 1  Cox  C  C.  570.  —  Ed.    , 


^ 


^ 


^^^ 


^^r<s-^^ 


4 


rw 


974 


KEGINA  V.   BRYAN. 


[chap.  XIV. 


^ 


be  untrue,  and  that  in  consequence  of  that  he  obtained  the  moneys 
mentioned  in  the  indictment.  The  prisoner's  counsel  claimed  to  have 
the  verdict  entered  as  a  verdict  of  "  not  guilty,"  which  was  resisted 
by  the  counsel  for  the  prosecution,  and  entertaining  doubts  upon  the 
question,  I  directed  a  verdict  of  guilty  to  be  entered,  in  order  that 
the  judgment  of  the  Court  of  Criminal  Appeal  might  be  taken  in  the 
matter,  and  the  foregoing  is  the  case  on  which  that  judgment  is 
requested.  Russell  Gurney. 

JB.  C.  Robinson,  for  the  prisoner,  submitted  that  these  were  not  false 
pretences  within  the  statute.  That  the  rule  to  be  deduced  from  all 
the  cases  was  this,  that  where  the  thing  obtained  was  in  specie  that 
which  it  was  represented  to  be,  the  statute  applied ;  but  where  the 
falsehood  was  merely  as  to  the  quality  of  the  thing,  where  it  became  a 
mere  question  of  better  or  worse,  such  pretence  was  not  indictable. 
Here  the  goods  were  in  specie  what  they  were  represented  to  be  ;  they 
were  plated  goods,  but  they  were  inferior  in  quality  to  the  representa- 
tion. If  it  were  otherwise,  and  that  the  puffing  or  vaunting  an  article 
that  was  offered  for  sale  was  a  criminal  offence,  every  trader  in  the 
commercial  world  would  be  committing  a  crime  twenty  times  in  the 
course  of  each  day.  In  R.  v.  Roebuck,  7  Cox  Crim.  Cas.  126,  most 
of  the  learned  judges  in  delivering  their  judgment  stated  that  but  for 
the  case  of  R.  i'.  Abbott,  1  Den.  C.  C.  173,  they  should  have  hesitated 
in  holding  the  conviction  to  be  proper,  but  that  they  felt  bound  by 
that  authority.  If  then  it  could  be  shown  that  the  present  case,  if 
the  conviction  were  to  be  sustained,  would  go  further  than  those  above 
mentioned,  the  court  would  not  confirm  it.  Every  decision  might  be 
reconciled  with  the  principle  contended  for.  In  R.  v.  Roebuck,  the 
chain  pawned  for  silver  was  not  silver  at  all.  So  with  regard  to  the 
thimble  in  R.  v.  Ball,  C.  &  M.  249.  In  R.  i-.  Dundas,  6  Cox  Crim.  Cas. 
380,  the  article  sold  was  stated  to  be  Evei-ett's  blacking  ;  it  was  bought 
on  the  faith  of  its  being  so,  and  it  turned  out  to  be  a  spurious  com- 
pound. There  it  was  not  a  mere  representation  of  quality,  but  of  a 
specific  thing  known  as  Everett's  blacking. 

Lord  Campbell.  Was  not  R.  v.  Abbott  decided  on  a  pretence  with 
regard  to  the  quality  of  a  cheese? 

Robinson.  No.  If  the  representation  alleged  in  the  indictment 
had  been  that  the  cheese  was  of  the  same  quality  as  the  taster,  that 
would  have  rendered  the  case  analogous  to  this.  But  it  was  not  so. 
The  representation  there  was  that  the  taster  formed  part  and  parcel 
of  the  cheese  to  be  sold,  and  it  was  in  truth  of  a  totally  different  char- 
acter, inserted  into  the  bulk  for  the  purposes  of  fraud.  That  was 
a  statement  of  a  specific  fact  quite  independent  of  the  quality. 
The  cheese  might  have  been  of  even  better  quality  than  the  taster, 
and  yet  the  falsehood  of  the  pretence  would  equally  exist.  If  the 
misrepresentation  here  had  been  that  the  spoons  were  of  Elking- 
ton's  manufacture,  and  had  formed  part  of  Elkington's  stock,  then 


SECT.  III.] 


KEGINA   V.   BRYAN. 


975 


the  case  would  be  identical  with  R.  v.  Abbott ;  but  there  is  a  wide 
distinction  between  the  statements  that  they  are  Elliington's  and  that 
they  are  as  good  as  P^lkington's. 

CoLEKiDGE,  J.  If  the  seller  is  to  be  indictable  for  overpraising  his 
goods,  then  the  buyer  would  be  indictable  also  for  unfairly  depreciat- 
ing them,  and  thus  obtaining  them  below  their  value. 

Lord  Campbell.  That  would  certainly-  seem  to  be  so.  Even  the 
act  of  depreciating  would  be  indictable,  because  it  would  be  an  attempt 
to  obtain  them  by  a  false  pretence  as  to  their  quality. 

liohinson.  In  the  administration  of  the  criminal  law,  it  is  of  the 
highest  importance  to  define  as  accurately  as  may  be  what  crime  is, 
and  not  to  leave  too  much  to  the  interpretation  of  juries.  Otherwise, 
in  such  a  case  as  this,  every  man  who  was  dissatisfied  with  a  bargain 
he  had  made  would  have  it  in  his  power  to  indict  a  tradesman  who 
sold  him  goods,  on  the  plea  that  every  representation  made  in  the 
course  of  the  bargain  was  not  true  to  the  letter.  A  cutler  who  war- 
ranted a  knife  to  be  as  good  as  Rodger's,  a  tailor  who  stated  a  coat 
to  be  of  the  best  Saxony  wool,  a  brewer  who  represented  his  beer  to 
be  treble  X,  would  be  constantly  amenable  to  the  criminal  law,  and  a 
jury  would  have  to  decide  upon  their  fate.  A  line  must  be  drawn 
somewhere,  and  to  hold  that  a  pretence  to  be  within  the  statute  must 
be  with  reference  to  some  clear  specific  fact,  the  truth  or  falsehood  of 
which  may  be  demonstrably  shown,  the  assertion  and  the  fact  being 
each  the  contradictory  of  the  other,  is  consistent  both  with  conveni- 
ence and  authority,  whilst  it  would  be  highly  dangerous  to  hold  that 
statements  which  might  be  mere  matters  of  opinion  or  speculation 
were  the  subject-matters  of  a  criminal  charge. 

Lord  Campbell.     You  say  it  is  lawful  to  lie  in  respect  of  quality. 

Robinson.  However  immoral,  that  it  is  not  a  crime.  At  the  outset 
it  must  be  admitted  that  this  was  a  wilful  lie.  The  case  states  it,  and 
the  jury  have  so  found  it.  It  must  also  be  admitted  that  in  conse- 
quence of  the  lie  the  money  was  obtained.  It  is  only  on  such  admis- 
sions that  the  point  can  ever  arise.  The  question  is,  is  such  a  lie  as 
this  a  false  pretence  within  the  statute  ? 

Lord  Campbell.  But  it  is  part  of  the  allegation  that  there  is  as 
much  silver  in  the  spoons  as  in  Elkington's  A.  Is  not  that  the  asser- 
tion of  a  fact  ? 

Robinson.  It  is  no  more  in  reality  than  a  representation  of  the 
quality.  It  is  the  amount  of  silver  in  these  goods  that  gives  them 
their  value,  and  saying  of  them  that  they  have  more  or  less  silver  is 
equivalent  to  saying  that  they  are  of  better  or  worse  quality. 

Pollock,  C.  B.  Suppose  a  seller  of  cheese  to  state  that  it  came 
from  a  particular  dairy  in  Cheshire,  when  in  fact  it  came  from 
America. 

Robinson.  That  might  probably  be  a  false  pretence,  because  the 
buyer  would  not  get  the  precise  thing  he  bargained  for.     He  might 


^ 


^ 


X 


976 


REGINA   V.    BRYAN". 


[chap.  XIV. 


^ 


want  a  Cheshire  cheese  and  not  an  American  one,  quite  irrespective  of 
the  quality. 

Bramwell,  B.  I  see  nothing  in  the  statute  that  recognizes  a  dis- 
tinction between  species  and  quality. 

Rohinsoyi.  The  statute  must  be  taken  in  connection  with  the  many 
cases  that  have  been  decided  upon  it,  and  which  have  given  it  a  par- 
ticular interpretation. 

Bramwell,  B.  If  I  buy  a  spurious  autograph  of  the  Duke  of  Wel- 
lington, or  a  spurious  picture  attributed  to  Raphael,  I  get  a  thing  of 
the  same  species  as  that  bargained  for. 

Robinson.  If  the  autograph  or  the  picture  was  represented  to  be 
genuine  when  it  was  known  to  be  spurious,  that  would  probably  be  a 
false  pretence  ;  but  if  it  was  said  that  the  writing  or  the  painting  was 
in  the  duke's  or  the  painter's  best  style,  and  it  was  known  to  be  other- 
wise, it  would  not  be  so.  There  are  cases  which  tend  to  show  that 
the  doctrine  of  caveat  emptor  might  be  applicable  here,  or  that  false 
representations  as  to  specific  facts  in  the  course  of  a  bargain  and  sale 
are  not  within  the  statute,  but  still  much  doubt  has  of  late  been  thrown 
upon  them,  and  it  is  not  thought  necessary  to  rely  upon  them  here. 

Francis  (with  him  Metcalfe)^  for  the  prosecution.  The  false  pre- 
tences relied  upon  are  as  to  the  quantity  of  silver  in  the  spoons  being 
equal  to  Elkington's  A,  and  the  foundations  being  of  the  best  material. 
These  are  facts  easily  ascertainable,  and  which,  in  truth,  the  jury 
have  expressed  their  judgment  upon.  They  are  not  mere  statements 
that  the  spoons  are  as  good  or  as  valuable  as  p:ikington's.  It  is  some- 
thing more  than  a  mere  representation  with  regard  to  quality ;  for  it 
must  be  taken,  after  the  finding  of  the  jury,  that  the  amount  of  silver 
on  Elkington's  A  spoons  was  a  well  known  fixed  quantity.  In  the 
case  of  R.  v.  Sherwood,  just  decided,  it  was  held  that  a  misrepre- 
sentation with  regard  to  quantity  was  a  good  false  pretence  within  the 
statute,  and  there  is  here  just  as  strong  a  representation  as  to  quantity 
as  there  was  there.  The  spoons,  no  doubt,  had  a  small  quantity  of 
silver  upon  them,  but  it  was  so  trifling  that  the  money  advanced  ex- 
ceeded their  full  value,  and  it  is  found  that  had  the  prosecutors  known 
the  real  value  they  would  not  have  advanced  any  money  upon  them 
whatever.  But  there  is  no  case  laying  down  the  principle  contended 
for  on  the  other  side,  that  a  misrepresentation  with  regard  to  quality 
is  not  within  the  statute ;  on  the  contrary,  in  R.  v.  Kenrick,  5  Q.  B. 
49,  one  of  the  pretences  was,  that  a  horse  was  quiet  to  ride  and  drive, 
which  was  false  within  the  seller's  knowledge,  and  the  court  sustained 
the  conviction.  The  words  of  the  statute  are  clear  and  precise,  that 
goods  obtained  by  any  false  pretence  constitutes  the  crime ;  and  the 
jury  have  here  found  everything  that  the  act  renders  material.  It  was 
probably  intended  to  prevent  precisely  such  frauds  as  these  ;  and  the 
argument  that  this  is  a  mere  vaunting  or  puffing  off  of  goods  that  a 
tradesman  is  anxious  to  sell  is  answered  by  this,  that  the  jury  have 


REGINA  V.  BRYAN. 


977 


SECT.  III.] 

found  that  the  representations  were  made  fraudulently  and  with  intent 
to  cheat  the  prosecutor.  Where  there  is  such  an  intent,  and  it  is  acted 
upon  successfully,  there  can  be  no  inconvenience  in  holding  it  to  be 
punishable  as  a  crime  ;  and  a  jury  of  tradesmen  would  not  be  lilvely  to 
convict  a  man  who  had  merely  exaggerated  the  value  of  his  property 
for  the  purpose  of  getting  a  better  price  for  it.  That  is  often  done 
innocently,  or  at  least  without  any  fraudulent  intent ;  but  here  such 
limits  are  far  overstepped.  R.  v.  Roebuck  virtually  decides  this  case, 
for  the  pretences  are  substantially  the  same.  It  is  true  that  there  the 
chain  which  was  represented  to  be  silver  was  not  silver  at  all ;  but 
here  the  representation  is  equally  false,  for  although  the  spoons  were 
coated  with  silver,  it  was  in  so  small  a  quantity  as  to  render  them  almost 
valueless.  So  in  R.  v.  Abbott,  whatever  might  be  the  pretence  alleged 
in  the  indictment,  in  substance  the  fraud  consisted  in  selling  a  very 
inferior  article  for  one  of  superior  quality. 

Robinson,  in  reply.  Whatever  the  representations  may  be,  they 
have  reference  to  quality,  and  not  to  species  ;  and  this,  at  all  events, 
distinguishes  the  case  from  R.  v.  Roebuck,  and  all  the  other  cases  that 
have  been  decided  upon  this  point.  As  to  R.  v.  Kenrick  the  decision 
did  not  turn  upon  the  pretence  mentioned,  namely,  that  the  horses 
were  quiet  to  ride  and  drive.  There  were  other  pretences  in  that  case 
that  would  be  clearly  within  the  rule  that  the  pretences  had  been  made 
with  respect  to  specific  facts,  and  it  was  upon  these  that  the  court 
acted.  In  R.  v.  Sherwood  there  was  a  pretence  that  there  were  eigh- 
teen tons  of  coal  to  be  delivered,  when  in  truth  there  were  only  four- 
teen. There  was  therefore  an  assertion  that  there  were  four  tons  of 
coal  in  the  wagon  which  did  not  exist  at  all.  Here  the  number  of 
spoons  delivered  was  correctly  represented,  but  each  individual  spoon 
was  of  an  inferior  description.  In  fact,  the  case  states  that  it  was  the 
declaration  of  the  prisoner  with  regard  to  the  quality  of  .the  goods, 
and  nothing  else,  which  induced  the  prosecutors  to  part  with  their 
money. 

On  the  conclusion  of  the  argument,  the  learned  judges  retired  to 
consider  the  case,  and  on  their  return  they  delivered  the  following 
judgments  seriatim:  — 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  this  conviction  cannot 
be  supported,  as  it  seems  to  me  to  proceed  upon  a  mere  representation, 
during  the  bargaining  for  the  purchase  of  a  commodity,  of  the  quality 
of  that  commodity.  In  the  last  case  which  we  disposed  of  (R.  v.  Sher- 
wood), after  the  purchase  had  been  completed  there  was  a  distinct 
averment  which  was  known  to  be  false,  respecting  the  quantity  of  the 
goods  delivered,  and  in  respect  of  that  misrepresentation  a  larger  sum 
of  money  was  received  than  ought  to  have  been  received,  the  amount 
of  which  could  be  easily  calculated  ;  and  therefore  I  thought,  and  I  think 
now,  that  that  was  clearly  a  case  within  the  Act  of  Parliament.  But 
here,  if  you  look  at  what  is  stated  upon  the  face  of  the  case,  it  resolves 

62 


^1^ 


^.3-   ^ 


978 


EEGINA    V.   BRYAN. 


[chap.  XIV. 


^ 


^ 


itself  into  a  mere  misrepreseutation  of  the  quality  of  the  article  that  was 
sold,  beariug  in  miud  that  the  article  was  of  the  species  that  it  was  rep- 
resented to  be  to  the  purchaser,  namel}^  plated  spoous,  and  that  the 
purchaser  received  them.  Now,  it  seems  to  me,  it  never  could  have 
been  the  intention  of  the  legislature  to  make  it  an  indictable  offence 
for  the  seller  to  exaggerate  the  quality  of  that  which  he  was  selliug, 
any  more  than  it  would  be  an  indictable  offence  for  the  purchaser,  dur- 
ing the  bargain,  to  depreciate  the  quality  of  the  goods,  and  to  say  that 
they  were  not  equal  to  that  which  they  really  were.  It  seems  to  me 
that  this  is  an  extension  of  the  criminal  law  which  is  most  alarming, 
for  not  only  would  sellers  be  liable  to  be  indicted  for  an  extravagant 
representation  of  the  value  of  goods,  but  purchasers  would  be  liable 
to  be  indicted  if  they  improperly  depreciated  the  quality  of  the  goods, 
and  induced  the  sellers  by  that  depreciation  to  sell  the  goods  at 
an  under  price,  and  below  the  real  value  of  the  goods,  which  would 
have  been  paid  for  them  had  it  not  been  for  that  representation.  Now, 
as  yet,  I  find  no  case  in  which  it  has  been  held  that  this  misrepre- 
sentation, at  the  time  of  sale,  of  the  quality  of  the  goods,  has  been 
held  to  be  an  indictable  offence.  lu  Reg.  v.  Roebuck  the  article  de- 
livered was  not  of  the  species  bargained  for,  for  there  it  was  for  a 
silver  chain,  and  the  chain  that  was  sold  was  not  of  silver,  but  was  of 
some  base  metal,  and  was  of  no  value.  But  here  the  spoous  were 
spoous  of  the  species  that  was  bargained  for,  although  the  quality  was 
inferior.  It  seems  to  me,  therefore,  that  this  is  not  a  case  within  the 
Act  of  Parliament,  and  that  the  conviction  cannot  be  sui)ported.^ 

Pollock,  C.  B.  There  may  be  considerable  ditliculty  in  laying  down 
any  general  rule  which  shall  be  applicable  to  each  particular  case,  and 
although  I  think  that  the  statute  was  not  meant  to  apply  to  the  ordi- 
nary commercial  dealings  ])etween  buyer  and  seller,  yet  I  am  not  pre- 
pared to  lay  down  this  doctrine  in  an  abstract  form,  because  I  am 
clearly  of  opinion  that  there  might  be  many  cases  of  buying  and  sell- 
ing to  which  the  statute  would  apply.  I  think  if  a  tradesman  or  a 
merchant  were  to  concoct  an  article  of  merchandize  expressly  for  the 
purpose  of  deceit,  and  were  to  sell  it  as  and  for  something  very  differ- 
ent even  in  quality  from  what  it  was,  there  I  think  the  statute  would 
apply.  So  if  a  mart  were  opened,  or  a  shop  in  a  public  street,  with  a 
view  of  defrauding  the  public,  and  putting  off  articles  calculated  to 
catch  the  eye  which  really  possessed  no  value,  there  I  think  the  statute 
would  apply ;  but  I  think  it  does  not  apply  to  the  ordinary  commercial 
dealings  between  man  and  man,  and  certainly,  as  has  been  observed 
by  the  Lord  Chief  Justice,  if  it  applies  to  the  seller,  it  equally  applies 
to  the  purchaser.  It  is  not  very  likely  tliat  many  cases  of  that  sort 
would  arise.  It  would  be  very  inconvenient  to  lay  down  a  principle 
that  would  prevent  a  man  from  endeavoring  to  get  the  article  cheap 

1  Concurrins;  opinions  of  Cockburx,  C.  J.,  Coleridoe,  Cresswell,  Erle,  Cromp- 
TON,  and  Crowder,  JJ.,  Watson  and  Channell,  B.B.,  are  omitted. 


SECT.  III.] 


REGINA   V.   BRYAN. 


979 


which  he  was  bargaiuing  for,  and  that  if  he  was  endeavoring  to  get  it 
under  the  value  he  might  be  indicted  for  so  doing.  And  there  is  this  to 
be  observed,  that  if  the  successfully  obtaining  your  object,  either  in  get- 
ting goods  or  money,  is  an  indictable  offence,  any  attempt  or  step  towards 
it  is  an  indictable  offence  as  a  misdemeanor,  because  any  attempt  or 
any  progress  made  towards  the  completion  of  the  offence  would  be  the 
subject  of  an  indictment,  and  then  it  would  follow  from  that,  that  a 
man  could  not  go  into  a  broker's  shop  and  cheapen  an  article  but  he 
would  subject  himself  to  an  indictment  for  misdemeanor  in  endeavor- 
ing to  get  the  article  under  false  pretences.  For  these  reasons  1  think 
it  may  be  fairly  laid  down,  that  any  exaggeration  or  depreciation  in. 
the  ordinary  course  of  dealings  between  buyer  and  seller  during  the 
progress  of  a  bargain  is  not  the  subject  of  a  criminal  prosecution.  I 
think  this  case  falls  within  that  proposition,  and  therefore  this  con- 
viction cannot  be  supported. 

WiLLES,  J.^  I  am  of  opinion  at  variance  with  those  which  have 
been  generally  expressed,  but  such  as  my  opinion  is  I  am  bound  to 
pronounce  it,  and  I  do  so  with  the  greater  confidence,  because  it  was 
the  settled  opinion  of  the  late  Chief  Justice  Jervis,  than  whom  no  man 
who  ever  lived  was  more  competent  to  form  a  correct  opinion  upon 
the  subject.  I  think  that  the  conviction  was  right  and  that  it  ought 
to  be  affirmed.  It  appears  to  me,  in  looking  through  the  cases,  that  a 
great  number  of  the  observations  that  have  been  thrown  out  with  regard 
to  the  construction  of  the  statute  would  not  have  been  made  if  the  words 
of  the  statute  had  been  more  strictly  looked  at ;  and  that  even  some  of 
the  judgments  would  not  have  been  pronounced  if  those  who  pronounced 
them  had  not  permitted  themselves  to  consider  whether  it  would  or 
would  not  be  convenient  to  trade  to  adopt  one  interpretation  or  an- 
other. I  think  the  words  of  the  act  should  be  implicitly  followed,  and 
the  legislature  should  be  obeyed  according  to  the  terms  in  which  it  has 
expressed  its  will  in  the  53d  section  of  the  7  &  8  G.  IV.  c.  29.  I  am 
looking  to  the  words  of  that  section,  and  I  am  unable  to  bring  myself 
to  think  that  its  framers  were  dealing  with  anything  in  the  nature  of 
a  distinction  between  the  case  of  goods  fraudulently  obtained  by  con- 
tract and  goods  so  obtained  without  any  contract.  The  section  com- 
mences with  the  recital,  "That  whereas  a  failure  of  justice  frequently 
arises  from  the  subtle  distinction  between  larceny  and  fraud  ;  "  now 
this  recital  ought  not  on  a  proper  construction,  and  according  to  those 
authorities  by  which  we  are  bound,  to  have  the  effect  of  restraining 
the  operation  of  the  enacting  clause.  The  enacting  part  of  the  sec- 
tion is,  "  if  any  person  shall  by  any  false  pretence  obtain  from  any 
other  person  any  chattel,  money,  or  valuable  security,  with  intent  to 
cheat  or  defraud  any  person  of  the  same,  every  such  offender  shall  be 
guilty  of  a  misdemeanor."     And  it  appears  to  me  that  the  only  pi-oper 

1  Bramwell,  B.,  also  delivered  an  opinion  supporting  the  conviction. 


^nV 


'    ^ 


Qi 


.-^ 


980 


REGINA  V.   BKYAN. 


[CEIAP.  XIV. 


test  to  apply  to  any  case  is  this,  whether  it  was  a  false  pretence  by 
Avhich  the  property  was  obtained,  and  whether  it  was  obtained  with 
the  intention  to  cheat  and  defraud  the  person  from  whom  it  was  ob- 
tained. Now  in  this  case  it  appears  that  there  was  a  false  pretence ; 
there  was  a  pretence  that  the  goods  had  as  much  silver  upon  them  as 
Elkington's  A ;  there  was  also  the  pretence  that  the  foundations  were 
of  the  best  material.  If  I  could  bring  myself  to  take  the  view  which 
my  brother  Erie  has  taken  of  the  statement  of  the  case,  that  these 
were  matters  of  opinion,  and  not  matters  of  fact,  which  could  be 
ascertained  by  inspection  or  calculation,  possibly  I  might  arrive  at 
the  same  conclusion  as  he  has  done  ;  but  it  appears  to  me  on  the 
face  of  the  case  that  Elkington's  A  must  have  been  a  fixed  quan- 
tity, and  that  the  proper  material,  the  best  material  for  the  foun- 
dation of  such  plated  articles,  must  have  been  a  well  known  quality 
in  the  trade,  because  it  appears  that  the  prisoner  made  a  statement 
with  respect  to  the  quantity  of  silver  and  the  quality  of  the  founda- 
tion with  the  intent  to  defraud.  It  ai)i)ears  that  the  person  who 
made  the  advance  was  thereby  defrauded,  —  thereby  induced  to  make 
the  advance  ;  the  jury  have  found  that  the  statements  were  known  by 
the  prisoner  to  be  untrue,  and  that  in  consequence  of  these  statements 
he  obtained  the  money  mentioned  in  the  indictment.  It  appears  to  me 
that,  for  all  practical  purposes,  that  ought  to  be  taken  to  be  a  suflicient 
fact  coming  within  the  region  of  assertion  and  calculation,  and  not  a 
mere  speculative  opinion,  and  that  it  should  be  considered  a  false  pre- 
tence. If  the  misrepresentation  was  a  simple  commendation  of  the 
goods ;  if  it  was  a  mere  puffing  of  the  articles  which  were  offered  in 
pledge  ;  if  it  was  entirely  a  case  of  one  person  dealing  with  another  in 
the  way  of  business,  who  might  expect  to  pay  the  price  of  the  articles 
which  were  offered  for  the  purpose  of  pledge  or  sale,  —  I  apprehend  it 
would  have  been  easily  disposed  of  by  the  jury  who  had  to  pass  an 
opinion  upon  the  question,  acting  as  persons  of  common  sense  and 
knowledge  of  the  world.  It  would  be  a  question  for  them  in  such  case 
whether  the  matter  was  sucli  ordiuar}'  puffing  that  a  person  ought  not 
to  be  taken  in  by  it,  or  whether  it  was  a  misrepresentation  of  a  specific 
fact  material  to  the  contract,  intended  to  defraud,  and  by  which  the 
money  in  question  was  obtained.  Well,  then,  there  is  the  latter  part 
of  the  section,  "  with  intent  to  cheat  and  defraud  an}'  person  of  tlie 
same."  It  must  be  with  the  intention  to  cheat  or  defraud  the  person 
of  the  same,  and  that  intention  here  is  found  to  have  existed ;  there- 
fore I  am  unable  to  bring  my  mind  to  feel  any  anxiety  to  protect 
persons  who  make  false  pretences  with  intent  to  cheat  and  de- 
fraud. The  effect  of  establishing  such  a  rule  as  is  contended  for 
would,  in  my  opinion,  be  rather  to  interfere  with  trade  and  to  pre- 
vent its  being  carried  on  in  the  way  in  which  it  ought  to  be  carried 
on.  I  am  far  from  seeking  to  interfere  with  the  rule  as  to  simple 
commendation  or  praise  of  the  articles  which  are  sold,  on  the  one 


SECT.  III.]  REGINA  V.   GOSS.  981 

baud,  or  to  that  which  is  called  chaffering  on  the  other ;  those  are 
things  persons  may  expect  to  meet  with  in  the  ordinary  and  usual 
course  of  trade.  But  as  to  the  fear  of  multiplying  prosecutions,  I  am 
afraid  that  we  live  in  an  age  in  which  fraud  is  multiplied  to  a  great 
extent,  and  in  the  particular  form  which  this  case  assumes.  I  agree 
in  what  the  late  Chief  Justice  Jervis  stated  as  most  peculiarly  applica- 
ble, namely,  that  as  to  such  a  commerce  as  requires  to  be  protected  by 
this  statute  being  limited  in  the  mode  suggested,  trade  ought  to  be 
made  honest  and  conform  to  the  law,  and  not  the  law  bend  for  the  pur- 
pose of  allowing  fraudulent  commerce  to  go  on.  I  cannot  help  think- 
ing therefore,  upon  the  fair  construction  of  the  5od  section  of  the  7 
&  8  G.  IV.  c.  29,  the  prisoner  in  this  case  having  fraudulently  repre- 
sented that  there  was  a  greater  amount  of  silver  in  the  articles 
pledged  than  there  really  was,  and  that  there  was  a  superior  founda- 
tion of  metal  (that  being  untrue  to  his  knowledge),  for  the  purpose 
of  defrauding  the  prosecutors  of  their  money,  which  he  accordingly 
obtained,  he  was  indictable,  and  that  the  conviction  should  be 
affirmed.^ 


REGINA  V.   GOSS;    REGINA  v.   RAGG. 
Crown  Cases  Reserved.     1860. 

[Reported  8  Cox  C.  C.  262.] 

Regina  V.  Goss. 

Case  reserved  for  the  opinion  of  this  court  by  the  Recorder  of 
Northampton. 

The  prisoner,  Thomas  Goss,  was  tried  before  me  at  the  last  Michael- 
mas Sessions  for  the  borough  of  Northampton,  for  obtaining  money  by 
false  pretences.^ 

It  was  proved  at  the  trial  that  the  prosecutor,  Thomas  Roddis,  on 
the  19th  September  last,  was  attending  the  cheese  fair  held  within 
the  borough  of  Northampton,  and  that  the  prisoner  was  in  the  fair, 
and  sold  to  the  prosecutor  eight  cheeses,  weighing  1  cwt.  3  qrs.  1  lb. 
for  which  the  prosecutor  paid  the  prisoner  the  sum  of  £3  19s.  6d., 
being  at  the  rate  of  4^d.  per  pound.  On  the  prosecutor  going  into 
the  fair,  the  prisoner  offered  to  sell  him  the  eight  cheeses,  and  bored 
six  of  them  with  a  cheese-scoop,  and  then  produced  and  offered  to 
the  prosecutor  several  pieces  of  cheese,  which  are  called  "tasters," 
successively  at  the  end  of  the  scoop  for  the  prosecutor  to  taste,  and 
in  order  that  he  might  taste  them  as  being  respective!}-  samples  and 

1  Ace.  Reg.  V.  Levine,  10  Cox  C.  C.  374.     Contra,  Reg.  v.  Ardley,  12  Cox  C  C.  23 
See  Reg.  v.  Evans,  9  Cox  C.  C.  238 ;  Reg.  v.  Lawrence,  36  L.  T.  Rep.  404.  —  Ed. 
*  The  indictment  is  omitted. 


982  EEGINA   V.   GOSS.  [cHaP.    XIV. 

portions  of  the  six  cheeses  which  the  prisoner  had  bored  ;  and  accord- 
ingly the  prosecutor  did  taste  them,  and  then  offered  the  prisoner  4^d. 
per  pound  for  the  eight  cheeses,  which  the  prisoner  accepted. 

The  tasters,  however,  had  not  in  fact  been  extracted  from  the 
cheeses  offered  for  sale,  for  after  the  prisoner  had  bored  the  cheeses, 
and  before  he  handed  the  tasters  to  the  prosecutor,  he  took  from  his 
coat  pocket  pieces  of  cheese  of  better  quality  and  description  than 
those  taken  from  the  cheeses  which  he  had  bored,  and  privily  and 
fraudulently  put  these  pieces  of  cheese  at  and  into  the  top  of  the 
scoop  for  the  prosecutor  to  taste,  and  the  cheese  which  the  prosecutor 
did  taste,  was  not  any  portion  of  the  six  cheeses  which  the  prisoner 
bored. 

The  prosecutor,  at  the  time  he  bought  the  eight  cheeses,  believed 
that  he  had  been  tasting  a  portion  of  those  cheeses,  and  in  that  belief 
bought  them,  and  paid  the  prisoner  the  £3  19s.  Gd.  for  them,  which  he 
would  not  have  done  unless  he  had  believed  that  the  tasters  had  been 
extracted  from  the  cheeses  which  he  so  bought.  The  cheeses  were 
delivered  to  the  prosecutor,  and  he  retained  possession  of  them  up  to 
the  trial. 

The  value  of  the  eight  cheeses  would  be  about  3^.  per  lb. 

The  prisoner's  counsel  at  the  trial  objected  that  there  was  no  evi- 
dence to  support  the  indictment,  or  of  an}'  facts  which  would  consti- 
tute a  false  pretence  within  the  statute. 

I  left  the  case  to  the  jury,  and  the  prisoner  was  convicted  ;  but 
having  some  doubt  as  to  whether  the  case  of  Reg.  v.  Abbott  2  Cox 
Crim.  Cas.  430,  had  not  been  shaken  b}*  subsequent  decisions  (see 
Reg.  V.  Bryan,  7  Cox  Crim.  Cas.  312),  I  reserved  the  case  for  the 
opinion  of  the  Court  of  Appeal.  John  H.  Brewer. 

No  counsel  was  instructed  to  argue  in  behalf  of  the  prosecution. 

Mereicether  (for  the  prisoner).  This  case  was  reserved  in  conse- 
quence of  the  remarks  of  some  of  the  judges  upon  the  case  of  Reg. 
V.  Abbott,  2  Cox  Crim.  Cas.  430,  which  was  decided  upon  the  author- 
ity of  Reg.  V.  Kenrick,  5  Q.  B.  49.  The  facts  in  the  present  case 
are  precisely  the  same  as  in  Reg.  v.  Abbott ;  and  unless  that  case  can 
be  impeached,  this  conviction  must,  no  doubt,  be  upheld.  In  Reg.  v. 
Roebuck,  7  Cox  Crim.  Cas.  126,  Lord  Campbell,  C.  J.,  said;  "If 
this  were  res  Integra,  I  should  not  agree  with  Reg.  v.  Abbott,  because 
I  think  tliat  there  the  intention  of  the  prisoner  was  to  obtain  a  better 
bargain,  and  not  animo  furandi;  but  that  having  been  decided  by 
ten  judges,  I  do  not  wish  on  the  present  appeal  to  disturb  it."  So  in 
Reg.  V.  Eagleton,  6  Cox  Crim.  Cas.  559,  the  authority  of  Reg.  v. 
Abbott  and  Reg.  v.  Kenrick  was  ranch  disputed  in  the  course  of  the 
argument ;  but  the  court  said  that  it  did  not  then  become  necessary 
to  consider  those  cases.  In  Reg.  v.  Bryan,  7  Cox  Crim.  Cas.  312, 
the  defendant,  in  order  to  obtain  a  loan  on  a  quantity  of  plated  spoons, 
represented  to  a  pawnbroker  that  they  were  of  the  best  qualitj-,  and 


SECT.  III.]  KEGINA    V.   KAGG.  983 

were  equal  to  Elkington's  A  (meaning  spoons  and  forks  made  by 
Elkington,  and  stamped  with  tlie  letter  A)  ;  that  the  foundation  was 
of  the  best  material,  and  that  they  had  as  much  silver  upon  them  as 
Elkington's  A.  The  jury  found  that  these  representations  were  wil- 
fully false,  and  that  by  means  of  them  the  loan  was  obtained.  Held 
(Willes,  J.,  and  Bramwell,  B.,  dissentientibus)^  that  the  conviction 
was  wrong,  and  that  the  representation  being  a  mere  exaggeration  or 
puffing  of  the  qualit}'  of  the  goods  in  the  course  of  a  bargain,  it  was 
not  a  false  pretence  within  the  statute.  In  Reg.  v.  Sherwood,  7  Cox 
Crim.  Cas.  270,  the  prisoner,  after  he  had  agreed  with  the  prosecutor 
to  sell  and  deliver  a  load  of  coals  at  a  certain  price  per  cwt.,  falsely 
and  fraudulently'  pretended  that  the  quantity'  which  he  had  delivered 
was  18  cwt ,  and  that  it  had  been  weighed  at  the  colliery,  and  the  weight 
put  down  by  himself  on  a  ticket  which  he  produced,  he  knowing  it  to 
be  14  cwt.  only,  and  thereby  obtained  an  additional  sum  of  money ; 
and  this  was  held  to  amount  to  a  false  pretence  within  the  statute. 
In  that  case  a  difficulty  was  felt  by  the  court  in  drawing  the  line 
between  indictable  and  non-indictable  false  representations. 

The  Court  said  that  they  had  no  doubt  about  Reg.  v.  Abbott  being 
a  decision  that  they  would  act  upon,  and  sound  in  principle,  but  they 
desired  the  case  of  Reg.  v.  Joseph  Ragg  (being  on  the  same  subject), 
to  be  called  on  before  giving  judgment. 

Regina  y.  Ragg. 

Case  reserved  for  the  opinion  of  this  court  by  the  Chairman  of  the 
Leicestershire  Quarter  Sessions. 

Joseph  Ragg  was  tried  before  me  at  the  General  Quarter  Sessions 
of  the  peace  for  the  count}'  of  Leicester,  held  on  the  3d  January,  1860, 
for  obtaining  money  under  false  pretences  from  Henr^'  Harris. 

The  indictment  stated  the  pretence  to  be,  a  false  pretence  as  to  the 
character  and  weight  of  a  quantit}'  of  coals,  sold  and  delivered  by  the 
prisoner  to  the  prosecutor. 

It  appeared  in  evidence  as  follows :  The  prisoner  was  a  coal 
dealer.  On  the  28th  November  he  called  at  the  house  of  the  prose- 
cutor in  Loughborough,  with  a  load  of  coals  in  a  cart,  and  inquired 
if  he  (the  prosecutor)  wanted  to  buy  a  load  of  "  Forest "  coal.  The 
prosecutor  replied  that  the  coals  did  not  look  like  Forest  coal,  be- 
cause they  looked  so  dull.  The  prisoner  replied,  "  I  assure  you  they 
are  Forest  coal,  and  the  reason  of  their  looking  so  dull  is  because 
the}'  have  been  standing  in  the  rain  all  night ;  there  is  15  cwt.  of  them, 
for  I  paid  for  14  cwt.  at  the  coal-pits,  and  the}'  gave  me  1  cwt.  in." 
On  this  the  prosecutor  bought  the  coal,  and  paid  7s.  Qd.  for  the  load. 
The  prisoner  unloaded  the  cai't,  and  packed  the  coals  in  the  prosecu- 
tor's coal-place.  When  the  prosecutor  saw  the  coals  in  the  coal-place, 
they  appeared  to  be  much  too  small  a  quantity  to  weigh  15  cwt.,  and  he 
had  them  weighed,  when  it  was  found  that  they  weighed  8  cwt.  only. 


984 


KEG  IN  A   V.   KAGG. 


[chap.  XIV. 


o^ 


^ 


The  prisoner  had  at  this  time  received  his  mone}'  and  gone  awa}-, 
but  the  prosecutor  went  after  hiui,  challenging  him  with  the  fraud,  and 
asking  for  redress.  The  prisoner,  however,  refused  to  make  an}',  stat- 
ing ''  that  he  did  not  make  childish  bargains,  and  that  the  prosecutor 
could  not  do  anything  to  him,  because  he  had  not  sold  the  coal  by 
weight,  but  by  the  load." 

The  prosecutor  stated  that  he  had  bought  the  coal  on  the  representa- 
tion of  the  prisoner  that  there  were  15  cwt,  and  the  size  of  the  cart 
y      and  the  appearance  of  the  coal  therein,  warranted  the  belief  that  there 
"^^       were  15  cwt. ;  but  it  turned  out  that  the  coal  was  loaded  in  a  particular 
V      manner,  technically  known  as  "  tunnelling  ;  "  that  is,  the  coal  (which  is 
.  in  large  lumps)  is  so  built  up  in  the  cart,  that  one  lump  rests  on  the 

V.  edges  of  that  below  it,  and  large  spaces  are  left  between  the  lumps  of 
^      coal,  and  thus  there  is  an  appearance  of  a  greater  quantity  of  coal  than 
^     there  actually  is. 

^  "^  From  further  evidence,  it  appeared  that  the  coal  was  not  Forest 
coal  at  all,  and  had  not  been  bought  at  the  pits,  but  was  Rutland  coal, 
and  bought  that  same  morning  at  a  wharf  in  the  town  of  Loughborough  ; 
that  the  cart,  when  loaded  at  the  wharf,  had  weighed  8  cwt.  only,  and 
although  the  prisoner  stated  that  other  coal  had  been  added  to  it  from 
another  cart-load  purchased  at  the  same  time  from  the  wharf,  there  was 
no  evidence  of  this  produced  at  the  trial. 

It  further  appeared  that  on  the  same  day,  and  a  very  short  time 
after  the  coal  was  sold  to  the  prosecutor,  the  prisoner  had  offered  the 
same  load  to  another  person  as  containing  13  cwt.,  but  on  looking  at 
the  cart  it  was  evident  that  the  coal  was  "tunnelled,"  and  the  pris- 
oner was  then  and  there  challenged  with  the  fact,  and  told  that  there 
was  not  above  8  cwt.  in  the  cart,  or  10  cwt.  at  the  most. 

Tlie  prisoner  was  not  defended  by  counsel,  and  the  jury  found  him 

Act    ^"'^^^''• 

f"^^  With  respect   to  the   false  pretence  as  to  the  "character"  of  the 

s^     coal,  it  appeared  to  me,  on  inquiring  of  the  witnesses,  that  there  was 
Ji      not   much  real  difference  in  value  between  the  Forest   coal   and  the 
^       Rutland  coal,   and    that   the  preference   of  one   over    the  other  was 
N^     rather  according   to  the  idea  of  the  customer,    than  the  actual  value 
Si^     of  the  article ;  and   I   should  not  have  considered  it  a  case  of  false 
pretences  under  the  statute  had  this  been  the  only  misrepresentation  ; 
but  I  considered  that  the  evidence  showed,  not  merely  a  false  state- 
ment as  to  the  quantity,  but  a  preconceived  intention  to  defraud,  and 
a  mode  of  packing  the  coal,  resorted  to  for  the  purpose  of  fraud,  and 
that  therefore  the  jury  properly  found  the  prisoner  guilty. 

On  referring,  however,  to  the  case  of  Reg.  v.  Sherwood,  I  found  that 

some  of  the  learned  judges  who  gave  judgment  therein  had  apparently 

drawn  a  distinction  between  the  case  of  a  false  representation  made 

i    during  the  bargaining,  and  that  made  after  the  sale  was  completed  ; 

—  and  in  the  present  case,  "as  the  false  pretence  was  made  in  the  course 


•o 


^      'N^of  the 


"^ 


progress  of  a  sale,"  I  did  not  feel  justified  in  sentencing  the 


^ 


SECT.  III.]  ilEGINA   V.   RAGG.  985 

prisoner  until  the  subject  had  come  under  the  consideration  of  the 
judges.  I  therefore  postponed  the  sentence,  and  directed  that  the 
prisoner  might  be  Uberated  on  bail  to  appear  and  receive  sentence 
at  the  next  Easter  Sessions. 

Hy.  J.  HosKiKs,  Deputy  Chairman. 

No  counsel  were  instructed  either  for  the  prosecutor  or  prisoner. 

Erle,  C.J.  We  are  all  of  opinion  that  the  conviction  in  each  case 
was  right.  With  reference  to  the  case  of  Joseph  Ragg,  there  was  a 
false  representation  that  the  quantity  of  coals  in  the  cart  was  15  cwt., 
whereas  onh'  about  8  cwt.  were  delivered,  and  there  was  a  pretence  of 
a  delivery  of  7  cwt ,  no  part  of  which  had  been  delivered.  And  al- 
though the  falsehood  was  only  as  to  part  of  the  entire  quantity'  to  be 
delivered,  yet  this  fixlls  within  the  class  of  cases  of  false  representa- 
tions as  to  the  quantity  of  goods  delivered,  the  principle  of  which  is 
a  false  pretence  of  a  matter  of  fact  cognisable  by  the  senses,  which  is- 
an  indictable  offence  within  the  statute.  With  regard  to  the  case  of 
Thomas  Goss,  there  was  also  a  false  pretence  of  a  matter  of  fact 
within  the  cognisance  of  the  senses  ;  for  by  a  sample  which  he  falsely 
represented  as  a  part  of  the  ver^'  cheese  to  be  sold,  but  which  was  part 
of  a  cheese  altogether  different  both  in  substance  and  value,  he  procured 
the  purchaser  to  buy  the  inferior  cheese,  and  part  with  his  money.  That 
was  a  false  pretence  as  to  the  substance  of  the  article  for  sale,  whereby 
the  prisoner  was  enabled  to  pass  off  a  counterfeit  article  as  and  for 
the  genuine  substance.  In  Reg.  v.  Roebuck,  7  Cox  Crim.  Cas.  126, 
it  was  held  that  falsely  representing  to  a  pawnbroker  that  a  chain  is 
silver,  the  prisoner  knowing  it  to  be  a  base  metal,  is  indictable.  So 
here  the  drawing  from  the  prisoner's  pocket,  samples  from  another 
cheese,  and  not  the  cheese  intended  for  sale,  which  was  a  totally  dif- 
ferent substance,  and  falsely  pretending  to  the  purchaser  that  those 
samples  were  part  of  the  substance  which  he  was  to  buj',  that  is 
equally  an  indictable  offence  within  the  statute,  and  falls  within  the 
class  of  cases  to  which  belong  Reg.  v.  Abbott,  where  the  substance  of 
the  purchase  was  a  cheese  of  the  identical  character  with  the  taster ; 
and  Reg.  v.  Dundas,  6  Cox  Crim.  Cas.  380,  where  the  article  sold 
was  falsely  pretended  to  be  Everett's  blacking,  which  was  a  known 
article  in  the  neighborhood,  whereas  in  fact  the  article  passed  off  was 
a  counterfeit.  In  the  case  of  Reg.  v.  Bryan,  the  case  of  the  plated 
spoons  represented  as  equal  to  Elkington's  A,  the  judges  who  consti- 
tuted the  majority  decided  that  case  on  the  principle,  that  indefinite 
praise  on  a  matter  of  opinion,  is  not  within  the  limit  of  indictable 
offences.  A  gi-eat  deal  of  dissatisfaction  has  been  expressed  with  that 
decision,  as  if  it  must  operate  as  an  encouragement  to  falsehood  and 
fraud,  and  so  lead  to  a  great  deal  of  mischief;  but  it  should  be  recol- 
lected what  an  extreme  calamity  it  is  to  a  respectable  man,  to  have  to 
stand  his  trial  at  a  criminal  bar  as  a  cheat,  upon  an  indictment  at  the 
instance  of  a  dissatisfied  purchaser.     It  is  easy  for  an  imaginative 


9S6  EEGINA   V.    JENXISON.  [CIIAP.  XIV. 

person  to  fall  into  an  exaggeration  of  praise  upon  the  sale  of  his 
goods.  And  if  such  statements  are  indictable,  a  person  who  wishes 
to  get  out  of  a  bad  bargain  made  by  his  own  negligence,  might  have 
recourse  to  an  indictment,  on  the  trial  of  which  the  vendor's  state- 
ment on  oath  would  be  excluded,  instead  of  being  obliged  to  bring  an 
action,  where  each  party  would  be  heard  on  equal  terms.  It  is  of 
great  public  importance  to  endeavor  to  draw  the  line  distinctly  between 
false  representations  which  are  indictable,  and  those  which  are  not. 
In  the  present  case  there  was  a  false  representation  that  an  article  was 
a  genuine  substance,  and  the  passing  off  a  counterfeit  substance,  and 
that  was  an  indictable  offence.  My  brother  Willes,  J.,  in  Reg.  v. 
Brj'an,  threw  a  great  deal  of  Hght  on  the  law  as  to  false  pretences, 
and  though  he  differed  from  the  majority  of  the  judges  in  the  decision, 
he  did  not  differ  from  the  principle  of  that  decision,  but  only  upon  the 
application  of  that  principle  to  the  case.  The  majority  of  the  judges 
thought  the  representation  there  to  be  a  matter  of  opinion  only  ;  my 
brother  Willes  thought  it  a  representation  of  a  matter  of  fact,  as  if  the 
representation  had  been,  there  is  as  much  silver  in  the  spoons  as  in 
Elivington's  A,  and  in  his  judgment  it  was  the  false  representation  of 
a  definite  fact.  We  are  therefore  of  opinion  that  this  conviction  must 
be  affirmed. 

WiGHTMAN,  J.  I  am  of  the  same  opinion.  I  would  merely  add, 
with  reference  to  the  cheese  cases  and  Elkington's  case,  one  observa- 
tion. If  the  prisoner  had  said  that  the  cheeses  were  equal  to  the 
tasters  produced,  that  would  have  fallen  within  the  Elkington's  case  ; 
but  he  said  to  the  prosecutor,  "  These  tasters  are  a  part  of  the  verj'' 
cheeses  I  propose  to  sell  to  you ; "  and  therefore  it  was  a  misrepre- 
sentation of  a  definite  fact. 

The  rest  of  the  court  concurring. 

Convictions  affirmed} 


REGINA  V.   JENNISON. 
Crown  Case  Reserved.     1862. 

[Reported^  Cox  C.  C.  158.] 

Case  reserved  for  the  opinion  of  this  court  by  Cockburn,  C.  J. 
John  Jennison  was  indicted  and  tried  before  me  at  the  last  Assizes 
for  the  county  of  Nottingham  for  obtaining  £8  from  one  Ann  Hayes 
by  false  pretences. 

The  prisoner,  who  had  a  wife  living,  had  represented  himself  to  the 
prosecutrix,  who  was  a  single  woman  in  service,  as  an  unmarried  man, 

1  Arc.  ■Res;,  v.  Foster,  2  Q.  B.  D.  301.  See  State  v.  Stanley,  64  Me.  157  ;  Jackson  v. 
People,  126  111.  139.  —  Ed. 


SECT.  III.]  EEGINA   V.   JEXNISON.  987 

and  pretending  that  he  was  about  to  marry  her,  induced  her  to  hand 
over  to  him  a  sum  of  £8  out  of  her  wages  received  on  leaving  her  ser- 
vice, representing  that  he  would  go  to  Liverpool,  and  with  the  money 
furnish  a  house  for  them  to  live  in,  and  that  having  done  so  he  would 
return  and  marry  her.  Having  obtained  the  money  the  prisoner  went 
away  and  never  returned. 

The  prosecutrix  stated  that  she  had  been  induced  to  part  with  her 
money  on  the  faith  of  the  representation  of  the  prisoner  that  he  was  a 
single  man,  that  he  would  furnish  a  house  with  the  money,  and  would 
then  marry  her. 

There  was  no  doubt  that  these  representations  were  false,  and  that 
morally  the  money  had  been  obtained  by  false  pretences.  But  it  was 
contended  on  the  part  of  the  prisoner  that,  as  the  prosecutrix  had  been 
induced  to  part  with  the  money  by  the  joint  operation  of  the  three  repre- 
sentations made  by  the  prisoner,  that  he  was  unmarried,  that  he  would 
furnish  a  house  with  the  money,  and  that  he  would  then  marry  her, 
and  as  only  the  first  of  these  pretences  had  reference  to  a  present  ex- 
isting fact,  while  the  others  related  to  things  to  be  done  in  future,  the 
indictment  could  not  be  maintained. 

I  reserved  the  point,  and  the  prisoner  having  been  convicted,  have 
now  to  request  the  decision  of  the  court  upon  the  question. 

A.  E.  COCKBURN. 

No  counsel  appeared  to  argue  on  either  side. 

Erle,  C.  J.  We  are  of  opinion  that  the  conviction  in  this  case  was 
proper.  The  indictment  was  for  obtaining  £8  from  Ann  Hayes  by 
false  pretences,  and  it  was  found  by  the  jury  that  the  woman  parted 
with  the  money  on  the  false  representation  by  the  prisoner  that  he  was 
a  single  man,  and  the  promise  that  he  would  lay  out  the  money  in  fur- 
nishing a  house  for  them  to  live  in,  and  that  he  would  then  marry  her. 
It  is  perfectly  clear  that  obtaining  money  by  a  false  promise  is  not  the 
subject  of  an  indictment ;  but  here  there  was  the  false  pretence  that 
the  prisoner  was  an  unmarried  man,  which  was  an  essential  fact  in 
this  case,  and  without  which  pretence  the  prisoner  never  would  have 
obtained  the  money  from  the  woman.  Now,  one  false  fact,  by  means 
of  which  the  money  is  obtained,  sufficiently  sustains  the  indictment, 
although  it  may  be  united  with  false  promises  which  would  not  of 
themselves  do  so.     The  conviction  therefore  was  right. 

The  other  judges  concurring, 

Conviction  affirmed.^ 

1  Ace.  Rex  V.  Young,  Leach  (4th  ed.),  505,  3  T.  R.  98;  Com.  v.  Moore,  80  Ky.  542, 
See  Reg.  v.  Johnston,  2  Moo.  C.  C.  254.  —  Ed. 


988 


COMMONWEALTH   V.   DREW. 


[chap.  XIV. 


^ 


^ 


<^ 


COMMONWEALTH  v.  DREW. 
Supreme  Judicial  Court  of  Massachusetts.     1837. 

[Reported  19  Pickering,  179.] 

The  defendant  was  tried  before  Morton,  -J.,  upon  two  indictments, 
in  each  of  which  he  was  charged  with  having  procured  money  from 
the  Hancock  Bank  in  Boston  by  false  pretences,  and  with  intent  to 
defraud  the  bank,  upon  two  several  occasions. 

The  pretences  alleged  were :  1,  that  the  defendant  assumed  the  name 
of  Charles  Adams ;  2,  that  he  pretended  that  he  wished  to  open  an 
honest  and  fair  account  with  the  Hancock  Bank,  and  to  deposit  and 
draw  for  money  in  the  usual  manner  and  ordinary  course  of  business ; 
and  3,  that  he  pretended  that  two  checks,  described  in  the  indictment, 
were  good,  and  that  he  had  in  deposit  the  amount  for  which  they  were 
drawn. 

It  was  proved,  among  other  things,  that  the  defendant  began  to 
deposit  money  in  the  bank  early  in  December,  1835,  and  that  he  con- 
tinued to  deposit  and  draw,  at  various  times  and  in  various  sums,  until 
the  27th  of  January,  1836,  on  which  day,  having  only  810  deposited 
to  his  credit,  he  drew  a  check  for  Si 00,  which  was  paid  at  the  bank. 

On  the  30th  of  January,  1836,  a  clieck  for  §350  was  drawn  by  the 
defendant  and  paid  at  the  bank,  he  having  made  no  deposit  since  the 
payment  of  the  clieck  presented  on  the  27th  of  January. 

The  defendant  deposited  and  drew  his  checks  by  the  name  of  Charles 
Adams,  and  there  was  another  person  named  Charles  Adams  who  de- 
posited at  the  bank  at  the  same  time ;  but  it  was  not  contended  on  the 
part  of  the  Commonwealth,  that  the  checks  were  paid  because  of  the 
assumption  by  the  defendant  of  the  name  of  Charles  Adams,  nor  that 
any  mistake  was  made  as  to  which  person  of  that  name  drew  the 
check. 

Samuel  B.  Dyer,  a  witness  on  the  part  of  the  Commonwealth,  testi- 
fied that  he  was  the  paying  and  receiving  teller  of  the  bank  ;  that  the 
defendant  first  did  business  at  the  bank  on  the  12th  of  December,  1835  ; 
that  he  asked  to  have  a  large  bill  of  the  United  States  Bank  exchanged 
for  small  bills,  which  was  done ;  that  before  be  left  the  bank  he  made  a 
deposit  of  a  considerable  sum,  including  the  bills  just  before  received 
as  above  ;  that  being  asked  in  what  name  he  wished  to  deposit,  he  said, 
in  the  name  of  Charles  Adams ;  that  he  saw  the  defendant  several 
times  afterwards,  when  he  presented  his  checks  for  payment;  that  the 
defendant  usually  drew  his  checks  in  the  bank,  at  the  desk  kept  for 
that  purpose,  and  presented  them  himself,  and  that  this  was  usually 
done  by  him  about  12  o'clock,  the  most  busy  time  in  the  forenoon  ;  that 
the  witness  had  no  recollection  of  the  presentation  or  payment  of  either 
of  the  two  checks  in  question,  which  were  overdrafts ;  that  he  knew 


SECT.  III.] 


COMMONWEALTH   V.   DREW. 


989 


they  were  paid  out  of  his  drawer  and  by  his  money,  because  he  found 
the  checks  in  his  drawer  and  missed  sums  of  money  corresponding  with 
the  amount  of  the  checks  ;  that  he  believed  that  the  check  of  January 
27th  was  not  paid  by  himself,  but  by  the  bank  messenger  for  him,  who 
took  his  place  a  few  minutes  at  the  counter,  the  messenger  having  told 
him  he  had  paid  a  check  of  Charles  Adams  ;  that  the  witness  paid 
checks  of  the  defendant  unhesitatingly,  because  he  had  deposited  for 
some  time,  and  the  witness  presumed  his  checks  to  be  good  from  the 
general  character  of  his  account,  and  having  seen  him  conversing  with 
the  president  of  the  bank,  the  witness  presumed  he  was  acquainted 
with  the  president ;  that  if  the  witness  paid  either  of  the  two  checks  in 
question,  without  inquiring  at  the  desk  of  the  book-keeper  or  looking 
at  the  balance-sheet  to  ascertain  whether  the  defendant  had  money  to 
that  amount  deposited,  it  was  upon  these  grounds  that  he  so  paid. 

It  was  in  evidence,  that  the  book-keeper's  desk  was  a  few  feet  from 
the  teller's  counter ;  that  when  the  teller  doubted  whether  a  check  should 
be  paid,  he  inquired  of  the  book-keeper,  or  looked  at  the  balance-sheet 
kept  by  the  book-keeper,  which  was  made  up  to  the  end  of  every  day, 
and  lay  upon  the  desk  for  the  inspection  of  the  teller  or  book-keeper  at 
all  times. 

It  was  testified  by  the  teller,  tliat  the  overdraft  of  the  27th  of  Jan- 
uary was  not  reported  for  some  days  after  it  happened ;  and  the 
balance-sheet  showed  that  it  did  not  appear  upon  that  book  until  the 
1st  of  February. 

In  order  to  show  that  the  defendant  overdrew  with  a  fraudulent  intent, 
it  was  proved,  amongst  other  things,  that  he  overdrew,  about  the  same 
time,  at  the  Bunker  Hill  Bank  in  Charlestown,  and  the  Traders'  Bank 
in  Boston. 

The  counsel  for  the  defendant  contended,  that  there  was  no  evidence 
of  the  procuring  of  money  by  any  false  pretence ;  that  the  mere  draw- 
ing a  check  and  presenting  it  at  the  counl;er  of  the  bank  to  the  teller 
for  payment,  no  words  being  spoken  and  no  false  appearance  or  token 
presented  or  held  out,  although  the  drawer  knew  he  had  no  funds 
deposited  there,  was  not  a  "  false  pretence  "  within  the  meaning  of  the 
statute  upon  that  subject ;  and  that  such  presentation  of  a  check,  with 
intent  to  defraud  the  bank,  and  receiving  the  money  upon  the  check, 
did  not  constitute  the  crime  of  obtaining  money  by  false  pretences,  as 
defined  by  the  statute  ;  that  it  was  no  more  than  an  appeal  to  the  books 
of  the  bank,  kept  by  the  proper  officer,  and  an  offer  to  receive  what 
should  there  be  found  due.  But  the  judge  overruled  these  objections, 
and  instructed  the  jury,  that  if  they  believed  that  the  defendant  became 
a  depositor  at  the  bank  under  a  pretence  of  doing  business  there  in  the 
usual  manner,  but  with  the  fraudulent  design  to  obtain  the  money  of, 
and  cheat  the  bank,  and  drew  the  checks  and  presented  them  at  the 
bank  for  payment,  knowing  that  he  had  not  funds  deposited  sufficient 
to  pay  them,  and  that  he  did  this  intending  to  defraud  the  bank  of  the 
sums  so  overdrawn,  although  no  words  were  spoken  and  no  other  token 


990  COMMONWEALTH    V.   DEEW.  [CHAP.  XIV. 

exhibited,  and  if  he  actually  got  the  mone}',  he  was  guilt}-  of  the  crime 
of  obtaining  mone}'  by  false  pretences  within  the  meaning  of  the  statute. 
And  it  was  left  to  the  jur}'  to  decide  upon  all  the  evidence,  whether  the 
false  pretences  and  the  averments  contained  in  the  indictment  were 
proved  to  their  satisfaction  or  not. 

The  jurj'  found  a  verdict  against  the  defendant  upon  both  indict- 
ments. 

The  defendant  moved  for  a  new  trial,  because  of  the  ruling  and  in- 
structions of  the  judge,  and  because  the  verdict  as  to  the  presentation 
of  the  checks  by  the  defendants  was  not  supported  bj-  the  evidence. 

JI.  II.  Fuller  supported  the  motion.  As  to  the  third  false  pretence, 
he  cited  St.  1815,  c.  136  ;  3  Chit.  Crim.  Law,  997  ;  Allen's  case,  3  City 
Hall  Recorder,  118;  Stuyvesant's  case,^  4  City  Hall  Recorder,  156; 
People  V.  Conger,  1  Wheeler's  Crira.  Cas.  448 ;  People  v.  Dalton, 
2  Wheeler's  Crim.  Cas.  178;  Witchell's  case,  2  East's  P.  C.  830;  Story's 
case,  Russ.  &  Ryan,  81  ;  Freeth's  case,  ib.  127. 

Austin  (Attorney-General),  and  Parker  (Disti-ict-Attorne}'),  for  the 
Commonwealth,  cited  Roscoe  on  Crim.  Ev.  (2d  ed.)  417  et  seq.  ; 
Lockett's  case,  1  Leach,  110;  Commonwealth  v.  Wilgus,  4  Pick.  177; 

2  East's  P.  C.  828  ;  Young  c.  The  King,  3  T.  R.  102  ;  Rex  v.  Jackson, 

3  Campb.  370. 

Morton,  J.,  delivered  the  opinion  of  the  court.  These  indictments 
are  founded  upon  St.  1815,  c.  136.  The  first  section  provides,  "  that 
all  persons  who  knowingl}-  and  designedh',  by  false  pretence  or  pre- 
tences, shall  obtain  from  any  person  or  persons  mone}-,  goods,  wares, 
merchandise  or  other  things,  with  intent  to  cheat  or  defraud  anj-  person 
or  persons  of  the  same,  shall  on  conviction "  be  punished,  &c.,  as 
therein  specified.  This  section,  which  is  a  copy  of  St.  30  Geo.  II.  c. 
24,  §  1,  is  revised  and  combined  with  some  provisions  in  relation  to 
other  similar  offences,  in  the  Revised  Stat.  c.  126,  §  32. 

To  constitute  the  ofl!enee  described  in  the  statute  and  set  forth  in 
these  indictments,  four  things  must  concur  and  four  distinct  averments 
must  be  proved. 

1.  There  must  be  an  intent  to  defraud  ; 

2.  There  must  be  an  actual  fraud  committed ; 

3.  False  pretences  must  be  used  for  the  purpose  of  perpetrating  the 
fraud  ;  and, 

4.  The  fraud  must  be  accomplished  by  means  of  the  false  pretences 
.  made  use  of  for  the  purpose,  viz.,  they  must  be  the  cause  which  induced 
t  the  owner  to  part  with  his  property. 

It  is  very  obvious  that  three  of  the  four  ingredients  of  the  crime  exist 
in  the  present  case.  The  fraudulent  intent,  the  actual  perpetration  of 
the  fraud,  and  the  fact  that  some  of  the  pretences  used  were  the  means 
bj'  which  it  was  accomplished,  are  established  by  the  verdict  of  the 
jury.  And  although  the  prisoner's  counsel  has  objected  to  the  suflRciency 
of  the  evidence,  yet  we  see  no  reason  to  question  the  correctness  of  their 
decision.     It  only  remains  for  us  to  inquire,  whether  the  artifices  and 


SECT.  III.]  COMMONWEALTH   V.   DREW.  991 

deceptions  practised  by  the  defendant,  and  by  means  of  which  he 
obtained  the  money,  are  the  false  pretences  contemplated  b}'  the 
statute. 

The  pretences  described  in  the  indictments  and  alleged  and  shown  to 
be  false,  are, 

1 .  That  the  defendant  assumed  the  name  of  Charles  Adams  ; 

2.  That  he  pretended  that  he  wished  to  open  an  honest  and  fair  ac- 
count with  the  Hancock  Bank,  and  to  deposit  and  draw  for  money  in 
the  usual  manner  and  ordiuarj'  course  of  business  ; 

3.  That  he  pretended  that  the  checks  were  good,  and  that  he  had  in 
deposit  the  amount  for  which  the}'  were  drawn. 

The  first  is  clearly  a  false  pretence  within  the  meaning  of  the  statute  ; 
and  had  the  mone}^  been  obtained  by  means  of  the  assumption  of  this 
fictitious  name,  there  could  be  no  doubt  of  the  legal  guilt  of  the 
defendant.  The  eminent  lawyer  who  filled  the  office  of  mayor  of  New 
York,  when  the  adjudication  referred  to  b}'  the  defendant's  counsel  was 
made,  says  the  false  pretences  must  be  the  sole  inducement  which 
caused  the  owner  to  part  with  his  property*.  People  v.  Conger,  1 
Wheeler's  Crim.  Cas.  448  ;  People  v.  Dalton,  2  ib.  161.  This  point  is 
doubtless  stated  too  strongly  ;  and  it  would  be  more  correct  to  say, 
that  the  false  pretences,  either  with  or  without  the  cooperation  of  other 
causes,  had  a  decisive  influence  upon  the  mind  of  the  owner,  so  that 
without  their  weight  he  would  not  have  parted  with  his  propert}'. 
People  V.  Haynes,  11  Wendell,  557.  But  in  this  case  the  assumed 
name,  so  far  from  being  the  sole  or  decisive  inducement,  is  clearl}' 
shown  to  have  had  no  influence  whatever.  The  bank  officers  did  not 
confound  the  defendant  with  Charles  Adams,  and  it  does  not  appear 
that  the  defendant  knew  that  there  was  any  other  person  by  that  name. 
He  never  claimed  any  credit  on  account  of  his  name,  and  the  coincidence 
might  have  been  accidental.  At  any  rate,  it  had  no  influence  upon  the 
credit  of  either,  nor  any  effect  upon  their  accounts  or  the  payment  of 
their  checks. 

2.  The  opening  and  keeping  an  account  with  the  Hancock  Bank 
might  have  been,  and  doubtless  was,  a  part  of  a  cunning  stratagem,  by 
which  the  defendant  intended  to  practise  a  fraud  upon  that  bank.  But 
the  business  was  done  and  the  account  kept  in  the  usual  manner.  The 
defendant  made  his  deposits  and  drew  his  checks  like  other  customers 
of  the  bank.  He  made  no  representation  of  the  course  he  intended  to 
pursue,  and  gave  no  assurance  of  integrity  and  fair  dealing ;  and  we 
can  see  nothing  in  the  course  of  this  business  constituting  it  a  false 
pretence,  which  would  not  involve  the  account  of  any  depositor  who 
might  overdraw  in  the  same  categor}'. 

3.  The  pretence,  if  any  such  there  were,  that  the  check  was  good,  or 
that  the  defendant  had  funds  in  the  bank  for  which  he  had  a  right  to  draw, 
was  false.  He  had  no  such  funds.  Did  the  defendant  make  any  such 
pretence  ?  He  made  no  statement  or  declaration  to  the  officers  of  the 
bank.     He  merely  drew  and  presented  his  checks,  and  they  were  paid- 


992  COMMONWEALTH    V.    DREW.  [CHAP.  XIV. 

This  was  done  in  the  usual  manner.     If,  then,  he  made  any  pretence,  it 
must  result  from  the  acts  themselves. 

What  is  a  false  pretence,  within  the  meaning  of  the  statute  ?  It  may 
be  defined  to  be  a  representation  of  some  fact  or  circumstance,  calcu- 
lated to  mislead,  which  is  not  true.  To  give  it  a  criminal  character 
there  must  be  a  scienter  and  a  fraudulent  intent.  Although  the  lan-_, 
guage  of  the  statute  is  very  broad,  and  in  a  loose  and  general  sense 
would  extend  to  evei-y  misrepresentation,  however  absurd  or  irrational, 
or  however  easily  detected,  yet  we  think  the  true  principles  of  con- 
struction render  some  restriction  indispensable  to  its  proper  application 
to  the  principles  of  criminal  law  and  to  the  advantageous  execution  of 
the  statute.  We  do  not  mean  to  say  that  it  is  limited  to  cases  against 
which  ordinary  skill  and  diligence  cannot  guard,  for  one  of  its  principal 
objects  is  to  protect  the  weak  and  credulous  from  the  wiles  and  strata- 
gems of  the  artful  and  cunning  ;  but  there  must  be  some  limit,  and  it 
would  seem  to  be  unreasonable  to  extend  it  to  those  who,  having  tlie 
means  in  their  own  hands,  neglect  to  protect  themselves.  It  may  be 
difficult  to  draw  a  precise  line  of  discrimination  applicable  to  every 
possible  contingency,  and  we  think  it  safer  to  leave  it  to  be  fixed  in 
each  case  as  it  may  occur.  2  East's  P.  C.  828  ;  Young  v.  The  King,  3 
T.  R.  98.    • 

It  is  not  the  policy  of  the  law  to  punish  criminally  mere  private 
wrongs  ;  and  the  statute  may  not  regard  naked  lies  as  false  pretences. 
It  requires  some  artifice,  some  deceptive  contrivance,  which  will  be 
likely  to  mislead  a  person  or  throw  him  otf  his  guard.  He  may  be 
weak  and  confiding,  and  his  very  imbecility  and  credulity  should  receive 
all  practical  protection.  But  it  would  be  inexpedient  and  unwise  to 
regard  every  private  fraud  as  a  legal  crime.  It  would  be  better  for 
society  to  leave  them  to  civil  remedies.  Roscoe  on  Crim.  Ev.  (2d  ed.) 
419  ;  Goodhall's  case,  Russ.  &  Ryan,  461. 

The  pretence  must  relate  to  past  events.  Any  representation  or 
assurance  in  relation  to  a  future  transaction  may  be  a  promise  or  cove- 
nant or  warranty,  but  cannot  amount  to  a  statutory  false  pretence. 
They  afford  an  opportunity  for  inquiring  into  their  truth,  and  there  is  a 
remedy  for  their  breach,  but  it  is  not  by  a  criminal  prosecution.  Stuyve- 
sant's  case,  4  City  Hall  Recorder,  156  ;  Roscoe  on  Crim.  Ev.  (2d  ed.) 
422  ;  Rex  v.  Codrington,  1  Car.  &  Payne,  661.  The  only  case,  Young 
V.  The  King,  3  T.  R.  98,  which  has  been  supposed  to  conflict  with  this 
doctrine,  clearly  supports  it.  The  false  pretence  alleged  was,  that  a 
bet  had  been  made  upon  a  race  which  was  to  be  run.  The  contingency 
which  was  to  decide  the  bet  was  future,  but  the  making  of  the  bet 
was  25as^  The  representation  which  turned  out  to  be  false  was,  not 
that  a  race  would  be  run,  but  that  a  bet  had  been  made.  The  false 
pretence,  therefore,  in  this  case,  related  to  an  event  already  completed 
and  certain,  and  not  to  one  whicli  was  thereafter  to  happen  and  conse- 
quently uncertain ;  and  the  decision  was  perfectly  consistent  with  the 
doctrine  and  law  here  laid  down. 


SECT.  III.]  COMMONWEALTH   V.   DREW.  993 

A  false  pretence,  being  a  misrepresentation,  may  be  made  in  any  of 
the  ways  in  which  ideas  may  be  communicated  from  one  person  to 
another.  It  is  true  that  the  eminent  jurist  before  referred  to  in  the 
cases  cited  held  that  it  could  be  made  only  by  verbal  communications, 
either  written  or  oral.  If  this  be  correct,  no  act  or  gestures,  however 
significant  and  impressive,  could  come  within  the  statute  ;  and  mutes, 
though  capable  of  conveying  their  ideas  and  intentions  in  the  most  clear 
and  forcible  manner,  could  hardly  be  brought  within  its  prohibition. 
Can  it  make  any  difference  in  law  or  conscience  whether  a  false  repre- 
sentation be  made  by  words  or  by  the  expressive  motions  of  the  dumb? 
Each  is  a  language.  Words  are  but  the  signs  of  ideas,  and  if  the 
ideas  are  conveyed,  the  channel  of  communication,  or  the  garb  in 
which  they  are  clothed,  is  but  of  secondary  importance.  And  we  feel 
bound  to  dissent  from  this  part  of  these  decisions.  In  this  we  are 
supported  by  the  English  cases.  Rex  v.  Story,  Russ.  &  Ryan,  81  ; 
Rex  V.  Freeth,  ib.  127. 

The  representation  is  inferred  from  the  act,  and  the  pretence  may  be 
made  by  implication  as  well  as  by  verbal  declaration.  In  the  case  at 
bar  the  defendant  presented  his  own  checks  on  a  bank  with  which  he 
had  an  account.  What  did  this  imply?  Not  necessarily  that  he  had 
funds  there.  Overdrafts  are  too  frequent  to  be  classed  with  false  pre- 
tences. A  check,  like  an  order  on  an  individual,  is  a  mere  request  to 
pay  ;  and  the  most  that  can  be  inferred  from  passing  it  is,  that  it  will 
be  paid  when  presented,  or  in  other  words  that  the  drawer  has  in  the 
hands  of  the  drawee  either  funds  or  credit.  If  the  drawer  passes  a 
check  to  a  third  person,  the  language  of  the  act  is,  that  it  is  good  and 
will  be  dulv  honored ;  and  in  such  case,  if  he  knew  that  he  had 
neither  funds  nor  credit,  it  would  probably  be  holden  to  be  a  false 
pretence. 

In  the  case  of  Stuyvesant,  4  City  Hall  Recorder,  156,  it  was  decided 
that  the  drawing  and  passing  a  check  was  not  a  false  pretence.  But  in 
Rex  V.  Jackson,  3  Campb.  370,  it  was  ruled  that  the  drawing  and  pass- 
ing a  check  on  a  banker  with  whom  the  drawer  had  no  account  and 
which  he  knew  would  not  be  paid,  was  a  false  pretence  within  the 
statute.  This  doctrine  appears  to  be  approved  by  all  the  text  writers, 
and  we  are  disposed  to  adopt  it.     Roscoe  on  Crim.  Ev.  (2d  ed.)  419. 

But  to  bring  these  cases  within  the  statute,  it  must  be  shown  that  the 
drawer  and  utterer  knew  that  the  check  would  not  be  paid,  and  in  the 
cases  cited  it  appeared  that  he  had  no  account  with  the  banker.  In 
these  respects  the  case  at  bar  is  very  distinguishable  from  the  cases 
cited.  If  the  checks  in  question  had  been  passed  to  a  third  person,  it 
could  not  be  said  that  the  defendant  knew  that  they  would  not  be  paid. 
On  the  contrary,  he  had  an  open  account  with  the  bank,  and  although 
he  knew  there  was  nothing  due  to  him,  yet  he  might  suppose  that  they 
would  be  paid  ;  and  the  fact  that  he  presented  them  himself,  shows 
that  he  did  not  know  that  they  would  be  refused. 

The  defendant  presented  the  checks  himself  at  the  counter  of  the 

63 


994 


COMMONWEALTH   V.    NORTON. 


[chap.  XIV. 


'S 


bank.  They  were  mere  requests  to  pay  to  him  the  amount  named  in 
ithem,  couched  in  the  appropriate  and  only  language  known  there,  and 
addressed  to  the  person  whose  peculiar  province  and  duty  it  was  to 
know  whether  the}'  ought  to  be  paid  or  not.  He  complied  with  the 
requests,  and  charged  the  sums  paid  to  the  defendant,  and  thus  created 
a  contract  between  the  parties.  Upon  this  contract  the  bank  must  rely 
for  redress. 

This  case  lacks  the  elements  of  the  English  decisions;  and  we 
think  it  would  be  an  unwise  and  dangerous  construction  of  the  statute 
to  extend  it  to  transactions  like  this.  The  case  ma}-  come  prettj'  near 
the  line  which  divides  private  frauds  from  indictable  offences ;  and  at 
first  we  were  in  doubt  on  which  side  it  would  fall.  But,  upon  a  careful 
examination,  we  are  well  satisfied  that  it  cannot  properly  be  brought 
within  the  statute.  Verdict  set  aside  and  new  trial  granted.^ 


^ 


,)i 


COMMONWEALTH  v.   NORTON. 
Supreme  Judicial  Court  of  Massachusetts.     1865. 

[Reported  11  Allen,  266.] 

Indictment  for  obtaining  money  under  false  pretences.  The  first 
count  charged  that  the  defendant  falsely  pretended  to  Charles  Connell 
that  a  few  days  before  he,  the  defendant,  was  in  Connell's  place  of 
business  and  had  two  drinks,  and  gave  to  Connell  five  dollars,  from 
which  Connell  was  to  take  twenty  cents,  but  that  Connell  did  not  re- 
turn any  change ;  and  Connell,  believing  said  false  representations, 
and  being  deceived  and  induced  thereby,  paid  to  Norton  four  dollars 
and  eighty  cents ;  whereas  in  truth  Norton  had  not  given  the  five 
dollars  to  Connell,  and  the  various  representations  of  Norton  were  all 
false. 

There  were  three  other  counts  charging  similar  transactions  with 
other  and  different  persons. 

The  defendant  pleaded  guilty  to  this  indictment  in  the  Superior  Court, 
and  thereupon  Lord,  J.,  deeming  the  questions  of  law  arising  thereon, 
as  to  whether  the  allegations  of  the  indictment  constituted  an  indictable 
offence,  so  important  and  doubtful  as  to  require  the  decision  of  this 
court,  reported  the  same,  by  the  consent  and  desire  of  the  defendant. 

No  counsel  appeared  for  the  defendant. 

Feed,  A.  G.,  for  the  Commonwealth,  cited  Commonwealth  v.  Drew, 
19  Pick.  182  ;  The  People  v.  Johnson,  12  Johns.  293  ;  Young  v.  The 
King,  3  T.  R.  102 ;  Rex  v.  Wheatly,  2  Burr.  1128. 

Dewey,  J.    It  seems  to  us  that  the  present  case  is  one  which  the 

^  See  Rex  i-.  Parker,  7  C.  &  P.  825  ;  People  v.  Wasservogle,  77  Cal.  173  ;  Barton 
V.  People,  135  111.  405.    Compare  Com.  v.  Schwartz  (Ky.)  18  S.  W.  358.  —  Ed. 


SECT.  III.] 


COMMONWEALTH  V.   WHITCOMB. 


995 


court  may  properly  consider  as  not  embraced  within  the  intention  of 
the  framers  of  the  statute  punishing  the  obtaining  of  goods  by  wilfully 
false  pretences.  The  case  as  presented  by  the  indictment  is  the  naked 
case  of  a  wilfully  false  affirmation,  made  to  a  party  who  had  like  ^ J^ 
means  of  knowledge  whether  the  affirmation  was  true  or  false  as  the 
party  who  made  it.  The  indictment  alleges  the  false  statements  to 
have  been  that  the  same  person  alleged  to  have  been  defrauded  had 
on  a  previous  day  named  received  of  the  defendant  a  certain  bankbill 
for  the  payment  of  certain  "  drinks"  furnished  to  the  defendant,  and 
had  not  given  back  any  change.  The  case  was  one  of  a  demand  of 
money  as  of  right,  growing  out  of  what  might  have  been  an  illegal  sale 
of  liquors,  and  was  yielded  to  by  the  seller,  he  being  personally  connected 
with  all  the  alleged  facts,  and  voluntarily  submitting  to  the  demand 
thus  made  upon  him.  It  was  said  by  this  court  in  Commonwealth  v. 
Drew,  19  Pick.  184,  that  "  although  the  language  of  the  statute  (St 
1815,  c.  136)  is  very  broad,  and  in  a  loose  and  general  sense  would 
extend  to  every  misrepresentation,  however  absurd  or  irrational  or 
however  easily  detected ;  yet  we  think  the  true  principles  of  construc- 
tion render  some  resti'iction  indispensable  to  its  proper  application. 
...  It  may  be  difficult  to  draw  a  precise  line  of  discrimination  appli- 
cable to  every  possible  contingency,  and  we  think  it  safer  to  leave  it 
to  be  fixed  in  each  case  as  it  may  occur." 

These  remarks  apply  equally  to  Gen.  Sts.  c.  161,  §  54,  and  in  the 
opinion  of  the  court  the  facts  alleged  in  this  indictment  do  not  present 
a  case  which  should  be  held  to  fall  within  the  spirit  and  purpose  of 
the  statute.     We  are  aware  that  some  of  the  English  judges  have  given  ,v|J^     lj       1 
a  more  extended  construction  of  their  statute  in  cases  that  have  there  * 

arisen.  Judgment  arrested.^     xK^"^ 


i  ^4-   V    ■ 


COMMONWEALTH  v.  WHITCOMB. 


Supreme  Judicial  Court  of  Massachusetts.     i»vi.    ^     ,  \ 

[Reported  107  Massachusetts,  486.]  '     ^ 

Chapman,  C.  J.     By  the  Gen.  Stats,  c.  161,  §  54,  whoever  "  design- 
edly, by  a  false  pretence  or  by  a  privy  or  false  token,  and  with  intent         ^ 
to  defraud,  obtains  from  another  person  any  property,"  &c.,  "  shall  be   V^ 
punished,"  &c.     The  defendant  falsely  pretended  to  the  Reverend  Mrfv        ^* 
Peck,  a  Methodist  clergyman,  that  he  was  himself  a  Methodist  clerg}'-  j^ 
man,  and  pastor  of  a  Methodist  church  in  Waterville,  Kansas,  and  that    , 
on  the  preceding  Lord's  day  he  had  preached  in  the  church  of  the  Rev- 
erend Charles  Fowler,  of  Chicago ;  that  he  was  poor,  penniless,  and 

1  Contra  Reg.  i;.  WooUey,  1  Den.  C.  C.  559 ;  Reg.  v.  Jessop,  7  Cox  C.  C.  399.    SeeVy 
Reg.  V.  Coulson,  1  Den.  C.  C.  592.     Compare  Com.  v.  Lee,  149  Mass  181.  — Ed. 


r 


"^ 


99g  COMMONWEALTH   V.    HARKINS.  [CHAP.  XIV. 

utteil}-  destitute,  and  liad  that  day  been  robbed  of  all  his  mone}- ;  and 
he  thereby  obtained  of  Mr.  Peck  six  dollars  as  a  charity.  He  after- 
wards admitted  that  these  representations  were  false.  His  only  defence 
is,  that  the  statute  does  not  include  cases  where  the  money  is  parted 
with  as  a  charitable  donation. 

But  it  is  obvious  that  the  case  comes  within  the  words  of  the  statute. 
It  comes  also  within  the  reason  of  the  statute.  There  is  as  much  reason 
for  protecting  persons  who  part  with  their  money  from  motives  of  benev- 
olence, as  those  who  part  with  it  from  motives  of  self-interest.  The 
law  favors  charity  as  well  as  trade,  and  should  protect  the  one  as  well 
as  the  other  from  imposture  by  means  of  false  pretences.  Obtaining 
money  by  means  of  letters  begging  for  charity  on  false  pretences  is  held 
to  be  within  the  English  statute  (7  &  8  Geo.  IV.  c.  29,  §  53),  which  is 
\  ^v^quite  similar  to  ours.  Regina  v.  Jones,  1  Denison,  551  ;  Regina  v. 
Hensler,  11  Cox  Crim.  Cas.  570. 

A  contrary-  doctrine  has  been  held  in  New  York.  People  v.  Clough, 
17  Wend.  351.  The  court  admitted  that  the  crime  was  of  a  dark  moral 
grade,  and  was  within  the  words  of  the  statute  of  New  York,  which  was 
'^^^"vcopied  from  the  English  statute  of  30  Geo.  II.  c.  24.  They  adopted 
.  that  construction  chieflj'  on  the  ground  that  the  preamble  to  the  statute 
'  referred  to  trade  and  credit.  But  our  statute,  like  the  existing  English 
n  statute,  refers  to  no  such  matter,  and  is  not  restricted  by  any  preamble. 
^  Exceptions  overruled. 


COMMONWEALTH  v.  HARKINS. 
Supreme  Judicial  Court  or  Massachusetts.     1886. 

[Reported  128  Massachusetts,  79.] 

Colt,  J.^  The  defendant  was  indicted  for  obtaining  money  from  the 
city  of  Lynn  by  false  pretences.  He  moved  to  quash  the  indictment  on 
the  ground  that  it  did  not  set  forth  an  offence  known  to  the  law. 

It  is  alleged  in  substance  that  the  defendant  falsely  represented  to 
the  city  of  Lynn,  through  its  agent,  the  city  solicitor,  that  a  street 
which  the  city  was  bound  to  repair  had  been  suffered  to  be  out  of  repair, 
and  that  the  defendant,  while  travelling  thereon  with  due  care,  was  in- 
jured b}'  the  defect ;  that  the  defendant  at  the  same  time  exhibited  an 
injury  to  his  foot  and  ankle,  and  represented  that  it  was  caused  by  the 
alleged  defect.  It  is  further  alleged  that  the  city  and  its  solicitor  were 
deceived  by  these  representations,  and,  being  induced  thereby,  agreed 
to  the  entry  of  a  judgment  against  the  city  in  a  suit  then  pending  in 
favor  of  the  defendant  in  this  case  ;  and  upon  the  entry  thereof  paid  the 
amount  of  the  same  to  him.     It  is  not  alleged  that  the  suit  was  to 

1  The  opinions  only  are  given  ;  they  sufficiently  state  the  case. 


SECT.  III.]  COMMONWEALTH   V.   HARKINS.  997 

recover  damages  on  account  of  the  defendant's  injury  from  the  alleged 
defect ;  but  we  assume  that  this  was  so,  for  otherwise  there  could  be  no 
possible  connection,  immediate  or  remote,  between  the  pretences 
charged  and  the  payment  of  the  money  in  satisfaction  of  the  judgment 
recovered. 

In  the  opinion  of  a  majority  of  the  court,  this  indictment  is  defective. 
The  facts  stated  do  not  constitute  the  otfence  of  obtaining  money  by 
false  pretences.  The  allegations  are,  that  an  agreement  that  judgment 
should  be  rendered  was  obtained  by  the  pretences  used,  and  that  the 
money  was  paid  by  the  cit}'  in  satisfaction  of  that  judgment.  It  is  not 
alleged  that,  after  the  judgment  was  rendered,  any  false  pretences  were 
used  to  obtain  the  money  due  upon  it ;  and,  even  with  proper  allega- 
tions to  that  effect,  it  has  been  held  that  no  indictment  lies  against  one 
for  obtaining  by  such  means  that  which  is  justly  due  him.  There  is 
no  legal  injur}'  to  the  party  who  so  pays  what  in  law  he  is  bound  to 
pay.  Commonwealth  I'.  McDuffy,  126  Mass.  467;  People  v.  Thomas, 
3  Hill,  169  ;  Rex  v.  WilUams,  7  Car.  &  P.  354.  A  judgment  rendered 
by  a  court  of  competent  jurisdiction  is  conclusive  evidence  between  the 
parties  to  it  that  the  amount  of  it  is  justl}'  due  to  the  judgment  credi- 
tor. Until  the  judgment  obtained  by  the  defendant  was  reversed,  the 
city  was  legally  bound  to  pay  it,  notwithstanding  it  may  have  then  had 
knowledge  of  the  original  fraud  by  which  it  was  obtained  ;  and  with  or 
without  such  knowledge  it  cannot  be  said  that  the  money  paid  upon  it 
was  in  a  legal  sense  obtained  by  false  pretences,  which  were  used  only 
to  procure  the  consent  of  the  city  that  the  judgment  should  be  rendered. 

The  indictment  alleges  the  fact  of  a  judgment  in  favor  of  the  defend- 
ant, which  if  not  conclusive  as  between  the  parties  to  this  criminal  pros- 
ecution, is  at  all  events  conclusive  between  the  parties  to  the  transac- 
tion. To  hold  that  the  statute  which  punishes  criminall}-  the  obtaining 
of  property  by  false  pretences,  extends  to  the  case  of  a  payment  made 
by  a  judgment  debtor  in  satisfaction  of  a  judgment,  when  the  evidence 
onl}'  shows  that  the  false  pretences  were  used  to  obtain  a  judgment,  as 
one  step  towards  obtaining  the  money,  would  practically  make  all  civil 
actions  for  the  recovery  of  damages  liable  in  such  cases  to  revision  in 
the  criminal  courts,  and  subject  the  judgment  creditor  to  prosecution 
criminally  for  collecting  a  valid  judgment,  whether  the  same  was  paid 
in  mone}'  or  satisfied  by  a  levj'  on  property. 

SouLE,  J.  I  am  obliged  to  differ  from  the  majority  of  the  court,  and 
am  authorized  to  state  that  the  Chief  Justice  and  Mr.  Justice  Ames 
concur  with  me.  As  the  case  involves  questions  of  importance  in  the 
administration  of  public  justice,  it  has  seemed  to  us  proper  to  state  our 
views  of  them.  In  doing  this,  it  is  necessary  to  discuss  several  points 
which  are  raised  by  the  exceptions,  but  are  not  treated  of  in  the  opinion 
of  the  court,  because  they  have  become  immaterial  to  the  decision  which 
has  been  reached  b}'  the  raajoritj'. 

The  indictment  sets  forth  that  the  defendant,  with  intent  to  cheat  and 
defraud,  made  certain  false  representations  and  pretences,  as  to  matters 


998  COMMONWEALTH   V.   HAKKINS.  [CHAP.  XIV. 

within  his  knowledge  and  relating  to  existing  facts  as  well  as  to  past 
transactions,  concerning  which  neither  the  city  of  Lynn  nor  its  agent 
had  the  means  of  knowing  the  truth,  and  that,  by  means  of  these  repre- 
sentations and  pretences,  the  city,  believing  them  to  be  true,  was 
induced  to  and  did  part  with  its  money  to  the  defendant.  It  further 
sets  forth  that  the  defendant  received  the  money  by  means  of  the  false 
pretences,  and  with  intent  to  cheat  and  defraud  the  city  of  Lynn,  and 
that  the  several  representations  and  pretences  were  not  true.  It  there- 
fore charges  an  offence.  Commonwealth  v.  Hooper,  104  Mass.  549  ; 
Commonwealth  v.  Parmenter,  121  Mass.  354. 

The  additional  allegations  as  to  the  consent  to  the  entry  of  judgment 
and  the  satisfaction  of  the  judgment  are  merely  a  narration  of  the 
methods  by  which  the  parties  proceeded  in  paying  and  receiving  the 
money,  and  are  wholly  unnecessary,  but  they  do  not  charge  another 
offence,  nor  make  the  indictment  bad  for  duplicity.  The  obtaining  of 
the  money  by  false  pretences  is  the  gist  of  the  offence,  not  the  obtaining 
of  the  judgment. 

The  fact  that  the  judgment  obtained  by  the  defendant  remains  unre- 
versed constitutes  no  objection  to  the  indictment.  It  is  true  that,  as  a 
matter  of  public  policy,  an  unreversed  judgment  is  conclusive  between 
the  parties  and  their  privies,  in  accordance  with  the  maxim,  Interest 
reipublicoi  ut  sit  finis  litium.  And  this  principle  goes  so  far  that  one 
cannot  sustain  an  action  against  another  for  obtaining  a  judgment  against 
him  by  means  of  conspiracy  and  fraud,  if  he  had  an  opi)ortunity  to  be 
heard  at  the  trial  of  the  cause  in  whicli  the  judgment  was  obtained. 
Castrique  v.  Behrens,  3  E.  &  E.  709  ;  Huffer  y.  Allen,  L.  R.  2  Ex.  15. 
But  it  is  equally  true  that  a  judgment  is  conclusive  only  between  the 
parties  and  their  "privies,  and  that  strangers  are  not  bound  nor  atfected 
by  it.  To  the  indictment  the  Commonwealth  is  a  party,  but  was  a 
stranger  to  the  action  between  the  city  of  Lynn  and  the  defendant,  in 
which  the  judgment  was  recovered.  That  judgment  is,  therefore,  no 
evidence  against  the  Commonwealth  that  the  defendant  was  entitled  to 
recover  anything  of  the  city.  It  has  no  bearing  on  the  case  at  bar, 
except  as  being  a  part  of  the  machinery  employed  in  obtaining  the 
money  wrongfully.  Its  existence  is  no  bar  to  prevent  tlie  Common- 
wealth from  showing,  in  its  prosecution  of  crime,  that  it  and  the  money 
were  obtained  by  false  pretences.  To  hold  otherwise  would  be  to  pro- 
vide a  shield  for  the  criminal  in  his  own  crime.  There  is  nothing  in 
this  view  of  the  law,  which  conflicts  with  the  decision  in  the  recent  case 
of  Commonwealth  v.  McDuffy,  126  Mass.  467.  It  was  there  held,  that 
one  who  obtains  only  what  is  due  him  by  false  pretences  commits  no 
punishable  offence.  It  was  not  held  that  the  Commonwealth  was 
estopped  to  prove  the  truth,  by  a  judgment  to  which  it  was  not  a  party. 
The  general  doctrine,  that  only  parties  and  privies  are  concluded  by  a 
judgment,  is  too  familiar  to  require  the  citation  of  authorities  in  its 
support.  An  application  of  it  peculiarly  pertinent  to  the  case  at  bar 
was  made  in  The  Duchess  of  Kingston's  case,  20  Howell's  St.  Tr.  355. 


SECT.  III.]  COMMONWEALTH   V.    HARKINS.  999 

The  indictment  is  not  defective  on  the  ground  of  remoteness  of  the 
false  representations  from  the  obtaining  of  the  monej'.  Ordinarily  the 
question  of  remoteness  is  one  for  the  jury,  and  can  be  presented  to 
this  court  only  on  a  report  of  the  evidence  after  a  refusal  b}'  the  pi'esid- 
ing  judge  to  rule  that  the  evidence  will  not  warrant  a  conviction.  As 
an  objection  to  the  indictment,  it  is  in  substance  that  the  indictment 
shows  that  the  money  was  obtained  on  a  valid  judgment,  and  therefore 
cannot  be  held  to  have  been  obtained  by  the  false  pretences.  But  this 
point  is  not  tenable.  The  test  is  the  direct  connection  between  the  pre- 
tence and  the  paj'ment  of  the  money.  There  was  no  purpose  in  either 
party  to  the  transaction  that  the  matter  should  go  to  the  extent  of 
entering  up  the  judgment,  and  rest  there  ;  the  judgment  was,  in  and  of 
itself,  of  no  impoi'tance.  It  was  onl}^  a  means  to  an  end,  and  it  was 
for  the  jury  to  say  whether  the  false  pretences  were  an  inducement  for 
the  pa3'ment. 

In  the  case  of  Regina  v.  Gardner,  Dearslj'  &  Bell,  40,  and  7  Cox  C. 
C.  136,  cited  by  the  defendant,  it  was  held  that  the  false  pretence  was 
exhausted  by  obtaining  a  contract  for  lodging,  and  did  not  extend  to 
the  contract  for  board  also,  made  after  the  defendant  had  been  a  lodger 
with  the  prosecutor  for  more  than  a  week.  In  Regina  v.  Bryan,  2  F. 
&  F.  567,  board  and  lodging  had  been  obtained  by  means  of  false  pre- 
tences, and,  sometime  after  the  contract  therefor,  the  prisoner  borrowed 
sixpence  of  the  person  with  whom  he  had  made  the  contract  and  was 
lodging,  and  it  was  held  that  the  money  was  not  obtained  by  the  false 
pretence. 

But  in  Regina  v.  Martin,  L.  R.  1  C.  C.  56,  it  was  held  that  the  ques- 
tion of  remoteness  was  for  the  jury,  and  that  a  conviction  was  warranted 
when  the  prisoner  had  ordered  a  van  to  be  made,  under  the  false  pre- 
tence that  he  acted  for  the  Steam  Laundry  Company  of  Aston,  which 
he  represented  to  be  composed  of  leading  men  of  Birmingliam,  and 
before  it  was  delivered  to  him  countermanded  the  order,  and  afterward 
agreed  to  receive  it  if  certain  alterations  were  made  in  it,  which  were 
made,  and  it  was  subsequently  delivered.  In  that  case  it  is  said  that, 
in  order  to  justify  a  conviction,  there  must  be  a  direct  connection  be- 
tween the  pretence  and  the  delivery  of  the  chattel,  and  that  whether 
there  is  such  a  connection  or  not  is  a  question  for  the  jur}- ;  and,  fur- 
ther, that  since  the  cases  of  Regina  v.  Abbott,  1  Denison,  273,  and 
Regina  v.  Burgon,  Dearsly  &  Bell,  11,  it  is  impossible  to  contend  seri- 
ously that  the  case  is  not  within  the  statute,  because  the  chattel  is 
obtained  under  a  contract  induced  by  the  false  pretence. 

The  false  representations  and  pretences  set  forth  in  the  indictment 
are  of  such  a  character  as  to  bring  the  transaction  within  the  statute. 
It  is  sometimes  said  that  a  naked  lie  is  not  within  the  statute ;  and,  as 
applied  to  particular  cases,  this  is  true  ;  as  when  one  falsely  represents 
to  a  saloon-keeper  that,  a  few  days  before,  he  gave  the  keeper  five 
dollars  out  of  which  to  take  twenty  cents  in  payment  for  drinks,  and 


1000 


COMMONWEALTH   V.   HARKINS.  [CHAP.  XIV. 


that  the  keeper  did  not  return  any  change  ;  Commonwealth  v,  Norton, 
11  Allen,  266;  or  where  one  draws  his  check  on  a  bank  in  which  he 
has  no  money,  and  presents  it  at  the  bank  for  payment.  Common- 
wealth V.  Drew,  19  Pick.  179.  In  those  cases  the  lie  is  told  to  one  who 
has  the  same  means  with  the  liar  of  knowing  what  the  fact  is.  In  the 
case  last  cited  it  was  said  that  passing  a  check  drawn  on  a  banker  with 
whom  the  drawer  has  no  account,  and  which  he  knew  would  not  be 
paid,  would  be  within  the  statute  ;  and  the  English  decisions  are  so. 
TJie  difference  between  the  two  is  merely  that  in  one  case  the  lie  or  false 
pretence  is  made  to  one  who  is  in  a  situation  to  know  the  facts,  and  in 
the  other  to  one  who  is  not  in  such  situation.  The  true  rule  seems  to 
be,  that  a  case  is  within  the  statute  if  the  alleged  false  pretence  is  an 
intentionally  false  representation  as  to  an  existing  Tact  or  past  trans- 
action, made  to  one  w  ho  has  not  the  means  of  knowing  the  truth  in  the 
premises,  for  the  purpose  of  inducing  him  thereby  to  part  with  his 
property. 

This  case  comes  up  on  exceptions  to  a  refusal  to  quash  the  indictment, 
and  it  is  argued  that  there  was  no  such  relation  of  trust  and  confidence 
between  the  defendant  and  the  city  of  Lyim  as  would  justify  a  belief  in 
the  representations  made,  and  lay  a  foundation  for  an  indictment  under 
the  statute.  But,  as  has  already  been  said,  there  are  sufficient  allega- 
tions to  constitute  a  good  indictment,  and  the  question  whether  they 
were  proved  or  not  is  one  of  evidence,  and  not  of  pleading.  Moreover, 
it  is  not  true,  as  matter  of  law,  that  one  who  is  negotiating  a  settlement 
of  an  alleged  claim  for  damages  cannot  bring  himself  within  the  statute 
by  making  false  representations  and  obtaining  money  thereby.  In 
Regina  v.  Copeland,  Car.  &  M.  516,  the  prisoner,  a  married  man,  who 
had  obtained  a  promise  of  marriage  from  a  single  woman  which  she 
refused  to  fulfil,  threatened  her  with  an  action  at  law  for  breach  of 
her  promise,  and  added  that  he  could  thereby  take  half  her  Ibrtune 
from  her,  and  she,  believing  the  statement  and  threat,  paid  him  one 
hundred  pounds  sterling.  The  prisoner  was  convicted,  and  the  convic- 
tion was  sustained  by  Lord  Denman  and  Mr.  Justice  Maule. 

The  question  whether  the  false  pretences  were  believed  and  induced 
the  payment  is  for  the  jury.  To  quash  the  indictment  on  the  ground 
that  the  circumstances  of  the  transaction  would  not  justify  a  conviction, 
would  be  to  quash  it  for  matters  dehors  the  record. 

That  the  wrong  is  a  private  one  is  no  objection  to  the  prosecution, 
lalthough  it  has  been  said  in  many  cases  that  the  statute  is  not  intended 
(for  the  punishment  of  every  private  wrong.  In  all  the  cases  above 
icited  in  which  a  conviction  was  sustained  the  wrong  was  a  private  one, 
|in  the  same  sense  as  in  the  case  at  bar ;  it  is  a  public  wrong  in  this,  as 
|in  those  cases,  in  that  it  is  within  the  statute  which  provides  for  pun- 
jishment  of  the  wrongdoer.  The  purpose  of  the  statute  was  to  extend 
Ithe  punishment  to  cases  which  were  not  reached  by  the  common  law, 
land  its  language  is  broad  and  comprehensive.     Its  operation  ought  not 


SECT.  III.]  EEGINA  V.   LARNER.  1001 

to  be  limited  by  phrases  of  indefinite  meaning  which  fail  to  state  any 

principle  of  construction. 

JSxceptions  sustained. 


REGINA  V.  LARNER. 

Central  Criminal  Court.     1880. 

[Reported  14  Cox.  C.  C.  497.] 

William  Larner  was  charged  under  an  indictment  containing 
counts  for  false  pretences^  forgpvyi  anrl  nttpi-i no-.  The  first  count  set 
forth  the  false~pretences  as  follows:  "That  the  said  William  Larner 
was  member  of  a  certain  club  called  and  known  as  the  Myddleton 
Swimming  and  Athletic  Club,  and  that  a  certain  letter  which  he,  the 
said  William  Larner,  had  caused  to  be  received  by  one  Alfred  Ernest 
Endin,  had  then  been  written  and  sent  by  one  Henry  Green,  the  secre- 
tary of  the  said  club,  and  that  he,  the  said  William  Larner,  as  member 
and  competitor  in  certain  club  swimming  races  and  matches  by  mem- 
bers of  the  said  club,  had  been  allowed  to  start  from  the  starting  point 
twenty-five  seconds  before  certain  other  competitors." 

Purcell  for  the  prosecution. 

Keith  Frith  and  Bundle  Levey  for  defendant. 

On  the  23rd  day  of  August  a  swimming  handicap  took  place  at  the 
Surrey  County  Baths.  Entries  were  to  be  made  previously  to  Alfred 
Endin,  Esq.,  and  competitors  to  be  handicapped  by  qualified  persons. 
A  competitor's  ticket  was  issued  by  Mr.  Endin  to  each  accepted  entry. 
The  length  of  the  course  was  100  yards,  and  there  being  a  good  many 
entries,  the  race  was  swum  in  heats. 

A  programme  was  printed  and  circulated,  containing,  amongst  other 
matters,  the  names  of  the  competitors  and  the  arrangement  of  the 
various  heats,  and  on  that  programme  appeared  the  name  of  W.  Larner, 
to  wliom  a  start  of  twenty  seconds  had  been  assigned. 

Some  days  before  the  issuing  of  the  programme,  Mr.  Endin  received 
the  following  letter : 

Nelson  Club,  90,  Dean-street,  Oxford-street. 
August  19,  1880. 

Sir, I  inclose  entrance  fee  for  another  entry  for  your  100  yards 

handicap.     W.  Larner  (Middleton  Swimming   and  Athletic   Club)    19 
Club  races  receives  twenty-five  seconds  from  scratch. —  I  remain,  sir, 

Yours  respectfully, 

H.  Green,  Hon.  Sec. 


1002  EEGINA  V.   LAENEE,  [CHAP.  XIV. 

Another  letter  of  the  same  kind  had  been  received  by  Mr.  Endin, 
entering  one  Binns  for  the  same  race.  The  letters  were  received  in  the 
usual  course  through  the  Post  Office.  The  two  entries  of  Larner  and 
Binns  were  accepted,  and  the  entrance  fee  of  2s.  6c?.  each  paid.  Mr. 
Endin  stated  that  he  knew  nothing  about  Larner  or  his  accomplish- 
ments as  a  swimmer ;  that  he  received  his  entry  in  consequence  of  the 
representations  contained  in  the  letter,  and  that  the  start  of  twenty 
seconds  was  apportioned  to  him  for  the  like  reason.  He  further  stated 
that  he  handed  Larner  a  competitor's  ticket ;  that  Larner  swam  in 
the  competition,  and  after  being  second  in  his  own  heat,  won  the  final 
easily.  It  was  believed  that  Larner  could  have  won  the  race  from 
scratch. 

For  the  prisoner  it  was  objected  that  the  false  pretences  were  too 
remote,  that  if  he  obtained  anything  thereb}',  it  was  the  competitor's 
ticket,  and  not  the  cup ;  that  the  cup  was  obtained  by  his  own  bodily 
activity;  and  that  the  case  fell  within  Reg.  v.  Gardner  (1  Dears.  &  B. 
C.  C.  p.  40  ;  7  Cox  C.  C.  13G),  in  which  case  the  prisoner  had  at  first  ob- 
tained lodgings  only  by  a  false  representation,  and  after  he  had  occu- 
pied the  lodgings  for  a  week  he  obtained  board  ;  and  it  was  held  that 
the  false  pretences  were  exhausted  by  the  contract  for  lodging,  the  ob- 
taining board  not  having  apparently  been  in  contemplation  when  the 
false  pretence  was  made. 

For  the  prosecution  it  was  urged  that  the  false  pretence  was  a  con- 
tinuing one,  that  the  winning  of  the  cup  was  clearly  in  the  contempla- 
tion of  the  prisoner  when  he  entered  for  the  race,  and  that  the  judgment 
of  WiLi-ES,  J.,  in  Reg.  v.  Gardner,  citing  Reg.  v.  Abbott  and  Reg. 
V.  Burgess,  was  an  authority'  the  other  way.  They  also  cited  Reg.  v. 
Martin  (L.  Rep.  1  Cr.  Cas.  Res.  56 ;  10  Cox  C.  C.  383). 

Held,  by  the  Common  Serjeant,  after  conferring  with  Stephen,  J., 
in  the  Old  Court,  that  the  objection  must  prevail  as  the  false  pretences 
were  too  remote. 

The  prisoner  was  afterwards  tried  for  uttering  the  letter,  knowing  it 
to  be  forged,  and  convicted. 


SECT.  III.]  REGINA   V,   BUTTON.  1003 

REGINA  V.   BUTTON. 
Court  for  Crown  Cases  Reserved.     1900. 

[Reported  1900,  2  Q.  B.  597.] 

Case  stated  by  the  recorder  of  Lincoln. 

The  prisoner  was  charged  with  attempting  to  obtain  goods  by  false 
pretences. 

On  August  26,  1899,  there  were  athletic  sports  at  Lincoln,  for  which 
prizes  were  given.  Among  the  contests  were  a  120  yards  race  and  a 
440  yards  race,  in  respect  of  each  of  which  a  prize  was  given  of  the 
value  of  ten  guineas. 

Among  the  names  sent  in  for  these  two  contests  was  the  name  of 
*'  Sims,  C,  Thames  Ironworks  A.  C,"  and  two  written  forms  of  entiy 
were  sent  in  to  the  secretary  of  the  sports,  containing  (as  appeared  to 
be  usual)  a  statement  as  to  the  last  four  races  in  which  Sims  had  run, 
together  with  a  statement  that  he  had  never  won  a  race.  These  forms 
were  not  sent  by  Sims,  nor  were  they  in  his  handwriting,  and  he  knew 
nothing  of  them.  They  were  however  signed  in  his  proper  name,  and 
with  his  true  address,  and  contained  a  correct  account  of  his  last  four 
performances.  The  forms  were  proved  to  be  not  written  by  the 
prisoner. 

The  performances  of  Sims  were  very  moderate,  and,  as  a  fact,  he 
was  only  a  moderate  runner,  and  as  a  result  the  supposed  Sims  was 
given  by  the  handicapper  of  the  sports  a  start  of  11  yards  in  the  120 
yards  race  and  a  start  of  33  yards  in  the  440  yards  race. 

Sims  was  ill  at  Erith  when  the  races  were  run,  and  was  not  at  Lin- 
coln at  all,  and  he  was  personated  by  the  prisoner,  who  was  a  fine 
performer  and  won  both  contests  very  easily. 

The  suspicion  of  the  handicapper  being  aroused,  he  asked  the 
prisoner,  after  the  120  yards  race,  whether  he  was  really  Sims,  whether 
the  performance  given  in  the  entry  form  was  really  his,  and  whether  he 
had  never  won  a  race.  To  these  questions  the  prisoner  answered  that 
he  was  Sims,  that  the  performances  were  his  own,  and  that  he  had 
never  won  a  race.  All  these  statements  were  untrue,  and  in  particular 
he  had  won  a  race  at  Erith  in  his  own  name.  The  handicapper  was 
called  as  a  witness,  and  swore  that  he  would  not  have  given  the  prisoner 
such  favorable  starts  if  he  had  known  his  true  name  and  performances. 

These  facts  were  all  admitted,  and  no  evidence  was  called  to  contra- 
dict them.  It  was,  however,  suggested  for  the  defence  that  the  prisoner 
might  have  done  it  for  "  a  lark,"  or  might  have  possibly  done  it  in 
order  to  keep  himself  in  good  training.  In  summing  up  the  case  to 
the  jur}',  the  recorder  told  them  that  if  the  prisoner  did  it  for  "  a  lark," 
without  an}'  criminal  intent,  and  without  intending  to  get  the  prizes, 
they  ought  to  find  him  not  guilty  ;  but  that  if  he  made  the  false  repre- 
sentations  wilfully,   intentionally,   and    fraudulently,    with   intent  to 


1004 


REGINA  V.  BUTTON.  [CHAP.  XIV. 


obtain  the  prizes,  they  ought  to  find  him  guilty  of  attempting  to  obtain 
them  by  false  pretences. 

The  jury  found  a  verdict  of  guilty. 

It  was  contended  for  the  prisoner  that,  on  the  authority  of  Reg.  v. 
Larner,  14  Cox  C  C.  497,  the  obtaining  tlie  prizes  was  too  remote  from 
the  false  representation  and  that  he  ought  to  be  acquitted.  The 
recorder  overruled  the  objection,  but  agreed  to  state  this  case.  A  case 
decided  by  Lord  Lindley  at  Nottingham  Assizes,  Reg.  v.  Dickenson, 
(1879)  Roscoe's  Criminal  Evidence,  432,  433,  12th  ed.  ;  2  Russell  on 
Crimes,  Book  III.,  cap.  xxxii.,  s.  ii.,  p.  511,  6th  ed.  ;  Times  of  July 
26,  1879,  appeared  to  be  contrary  to  Reg.  v.  Larner,  supra. 

The  questions  of  law  for  the  opinion  of  the  Court  were :  — 

(1.)    Whether  the  recorder  had  summed  up  the  case  correctly  to  the 

jury. 

(2.)   Whether  the  attempt  to  obtain  the  prizes  was  too  remote  from 

the  pretence. 

J.  Fercii-al  Hughes,  for  the  defendant.  The  conviction  is  bad. 
There  was  no  completed  criminal  offence,  for;  assuming  that  the  de- 
fendant did  make  the  representations  alleged  for  the  purpose  of  obtain- 
ing a  longer  start  in  the  handicaps  than  he  would  have  got  if  lie  had 
entered  in  his  own  name  and  disclosed  his  previous  performances 
truthfully,  still  there  is  nothing  to  shew  that  he  may  not  have  done 
what  he  did  for  amusement,  or  to  keep  himself  in  training,  for  it  is  not 
shewn  that  he  ever  api)lied  for  the  prizes,  and  even  if  in  the  first 
instance  he  intended  to  get  the  prizes,  which  is  not  clearly  shewn,  still 
until  he  applied  for  them  there  was  a  locus  poenitenti*,  and  he  might 
never  have  taken  the  prizes  at  all. 

[Mathew,  J.  Those  are  questions  of  fact,  and  the  verdict  of  the 
jury  negatives  the  suggestions  on  behalf  of  the  defendant.] 

The  intention  to  obtain  the  prizes  is  too  remote  from  the  representa- 
tions. What  he  really  obtained  was  more  favourable  terms  in  handi- 
caps. He  came  in  first  owing  to  his  good  running.  Reg.  v.  Larner, 
supra,  is  a  strong  authority  against  the  conviction.  [He  also  referred 
to  Reg.  V.  Eagleton,  (1855)  6  Cox  C.  C.  559 ;  24  L.  J.  (JI.C.)  158  ; 
Reg.  V.  Gardner,  (1856)  7  Cox  C.  C.  136;  Dears.  &  B.  C.  C.  40.] 

3Io)itague  Shearman  {T.  IloUis  Walker  wuth  him),  for  the  prosecu- 
tion, was  not  called  on. 

Mathew,  J.  The  conviction  in  this  case  must  be  upheld.  The  case 
of  Reg.  V.  Larner,  supra,  is  relied  upon  as  an  authority  for  the  defend- 
ant. In  that  case  question  was  one  of  fact,  and  the  Common  Serjeant 
directed  tiie  jnrj'  according  to  his  impression  of  the  view  of  the  law 
taken  by  Stephen  J. ,  whom  it  appears  from  the  report  he  had  consulted  ; 
but  that  case  is  contrar}-  to  the  ruling  of  Lord  Lindley  in  a  case  tried 
before  him  at  the  Nottingham  Assizes,  supra,  and  I  am  clearly  of 
opinion  that  Lord  Lindley  was  right.  The  questions  to  be  decided  in 
the  present  case  were  pure  questions  of  fact,  namely,  whether  the 
intention  of  the  defendant,  when  he  entered  for  the  races,  was  to  obtain 


SECT.  III.]  EEGINA  V.   BUTTON.  1005 

the  prizes,  and  whether  he  made  the  representations  with  that  intention. 
It  appears  from  the  case  that  he  pretended  to  be  a  man  who  had  never 
won  a  foot-race,  and  he  was  handicapped  on  the  faith  of  that  state- 
ment, as  is  shewn  by  the  evidence  given  by  the  handicapper;  bnt  it 
also  appears  from  the  case  that  his  statement  was  false,  for  he  had  won 
races.  Then  it  was  suggested  that  he  competed  in  the  name  of  Sims, 
as  it  is  put  in  the  case,  "  for  a  lark  "  ;  but  that  question  was  for  the 
jury,  and  they  have  negatived  the  suggestion.  It  was  also  contended 
that  his  coming  in  first  in  the  races  -vas  owing  to  his  own  good  run- 
ning ;  but  it  was  also  owing,  in  part  at  least,  to  the  false  pretences,  for 
b}'  means  of  the  false  pretences  he  obtained  a  longer  start  than  he 
would  have  had  if  his  true  name  and  performances  had  been  known. 
It  is  also  said  that  some  other  act  had  to  be  done  in  order  to  make  the 
offence  complete,  and  that  he  could  not  rightly  be  convicted  because  it 
was  not  shewn  that  he  had  applied  for  the  prizes,  and  that  the  criminal 
intention  was  exhausted.  The  argument  is  exceedingly  subtle,  but 
unsound.  In  fact,  he  was  found  out  before  he  had  the  opportunit}'  of 
applying  for  the  prizes,  as  no  doubt  he  otherwise  would  have  done. 
The  pretences  which  the  prisoner  made  were  not  too  remote,  and  the 
conviction  was  good. 

Lawrance,  J.,  concurred. 

Wright,  J.  I  am  of  the  same  opinion.  If  nothing  more  had  been 
shewn  than  that  the  defendant  had  entered  for  the  races  in  a  false 
name,  the  case  would  have  been  different.  If  he  did  not  run  or  claim 
the  prize,  it  would  be  difficult  to  say  tliat  there  was  an  actual  attempt  to 
obtain  it.     But  here  in  effect  he  did  claim  the  prize. 

Kennedy  and  Darling,  JJ.,  concurred 

Conviction  affirmed. 

Note  on  Intent  to  Defraud.  —  As  to  the  requisite  intent  to  defraud  see  Eex  v. 
Wakeling,  Russ.  &  Ry.  504,  supra;  Rex  v.  Naylor,  L.  R.  1  C.  C.  R.  4,  10  Cox  C.  C. 
149  ;  Com.  v.  Schwartz  (Ky.),  18  S.  W.  358.  See  also  Penny  v.  Hanson,  16  Cox  C.  C. 
173.  This  was  a  prosecution  under  5  Geo.  IV.  ch.  83,  s.  4,  for  "pretending  or  pro- 
fessing to  tell  fortunes  or  using  any  subtle  craft  to  deceive  and  impose  on  "  the  prose- 
cutor. The  defence  was  that  no  evidence  had  been  presented  of  an  intent  to  deceive. 
The  evidence  showed  that  defendant  offered  to  tell  the  prosecutor's  fortune  by  means 
of  astrology.  Denman,  J.,  said:  "This  is  an  instance  to  which  the  doctrine  res  ipsa 
loquitur  applies.  It  is  nonsense  to  suppose  that  in  these  days  of  advanced  knowledge 
the  appellant  really  did  believe  he  had  the  power  to  predict  a  man's  future  by  know- 
ing at  what  hour  he  was  born,  and  the  position  of  the  stars  at  the  particular  moment 
of  his  birth.  No  person  who  was  not  a  lunatic  could  believe  he  possessed  such  power. 
There  was  therefore  no  need  on  the  part  of  the  prosecution  to  negative  his  belief  in 
such  power  or  capacity.  The  magistrate  rightly  drew  an  inference  that  the  appellant 
had  an  intent  to  deceive  and  impose  on  the  prosecutor."  —  Ed. 


1006  EEGINA  V.   WADE.  [CHAP.  XV. 


CHAPTER   XY. 
RECEIVING  STOLEN  PROPERTY. 


SECTION  I. 

The  Receiving. 

EEX  V.   RICHARDSON. 

Old  Bailey.     1834. 

[Reported  6  Carrington  Sf  Payne,  335.] 

Four  of  the  prisoners  were  indicted  for  sacrilegiously  breaking  and 
entering  a  chapel,  called  St.  Philip's  Chapel,  in  the  parish  of  Clerken- 
well,  and  stealing  therein  certain  things.  The  other  prisoner  was 
charged  as  receiver.^ 

Taunton,  J.  (in  summing  up  with  respect  to  the  receiver),  said: 
Whether  he  made  any  bargain  or  not  is  a  matter  of  no  consequence. 
If  he  received  the  property  for  the  mere  purpose  of  concealment  with- 
out deriving  any  profit  at  all  he  is  just  as  much  a  receiver  as  if  he  had 
purchased  it.  It  is  a  receiving  within  the  meaning  of  the  statute. 
Verdict^  three  of  the  prisoners  guilty  and  two  of  them  not  guilty.^ 


EEGINA  V.   WADE. 
Liverpool  Assizes.     1844. 

{Reported  1  Carrington  &  Kirwan,  739.] 

The  prisoners  Wade  and  Kenyon  were  indicted  for  having  broken 
and  entered  the  house  of  Thomas  Worsley  at  Warrington,  and  having 
stolen  therefrom  one  watch,  two  handkerchiefs,  and  other  articles  his 
property,  the  prisoner  Leigh  being  indicted  for  receiving  the  watch  and 
the  handkerchiefs,  knowing  them  to  have  been  stolen. 

The  prisoners  Wade  and  Kenyon  pleaded  guilty.  The  prisoner  Leigh 
pleaded  not  guilty  and  was  tried. 

1  Part  of  the  case  not  involving  any  question  of  receiving  is  omitted. 
«  Ace.  Com.  V.  Bean,  117  Mass.  141.  — Ed. 


SECT.  I.]  REGINA   V.   MILLER.  1007 

It  was  proved  by  the  servant  of  a  pawnbroker  that  the  wife  of  the 
prisoner  Leigh  had  pledged  the  stolen  watch  on  a  day  subsequent  to 
the  robbery,  and  James  Jones,  a  constable  of  Warrington,  also  proved 
that  he  had  seen  all  the  three  prisoners  together,  they  being  in  custody 
together  at  Manchester,  when  Leigh  said  that  he  had  left  Kenyon's  house 
with  Kenyon  before  the  robbery,  that  he  had  afterwards  gone  to  Dun- 
ham (about  eight  miles  from  Manchester)  and  returned.  Leigh  was 
then  discharged.  But  the  witness  subsequently  went  to  Manchester 
again,  and  caused  him  to  be  again  apprehended  ;  and  Leigh's  wife  then, 
in  the  presence  of  Leigh,  told  this  witness  that  she  had  taken  the  watch 
and  pawned  it  for  10s.  She  added  that  Leigh  had  also  told  her  to  take 
two  handkerchiefs,  and  that,  as  she  was  about  to  go  with  them,  a  police- 
man came,  and  she  left  them  in  a  cellar  next  door  to  her  husband's 
house.  Upon  that  information,  the  witness  went  to  the  cellar  and 
found  the  handkerchiefs.  Afterwards,  when  Leigh  was  in  custody  in 
the  lockups  with  Wade,  Leigh  told  the  same  witness  that  while  he 
(Leigh)  was  before  with  Wade  in  the  same  place.  Wade  had  told  him 
(Leigh)  that  he  had  "  planted"  the  watch  and  handkerchiefs  under  a 
flag  in  the  soot-cellar  in  his  (Leigh's)  house  ;  and  that  when  he  (Leigh) 
was  discharged,  as  before  mentioned,  he  had  gone  and  taken  the  things, 
and  had  desired  his  wife  to  pledge  the  watch  for  as  much  as  she  could 
get  upon  it. 

The  watch  and  handkerchiefs  were  identified  as  the  property  of  the 
prosecutor. 

Pollock,  C.  B.  I  doubt  whether,  when  the  possession  has  been 
transferred  by  an  act  of  larceny,  the  possession  can  be  considered  to 
remain  in  the  owner.  Were  it  so,  then  every  receiver  of  stolen  goods, 
knowing  them  to  be  stolen,  would  be  a  thief  ;  and  so  on,  in  series  from 
one  to  another,  all  would  be  thieves.  If  this  was  an  act  done  by  the 
prisoner  (Leigh)  in  opposition  to  Wade,  or  against  his  will,  then  it 
might  be  a  question  whether  it  were  a  receiving.  But  if  Leigh  took  the 
articles  in  consequence  of  information  given  by  Wade,  Wade  telling 
Leigh  in  order  that  the  latter  might  use  the  information  by  taking  the 
goods,  then  it  is  a  receiving.  Verdict,  guilty. 


REGINA  V.   MILLER. 
Crown  Case  Reserved,  Ireland.     1854. 

[Reported  6  Cox  C.  C.  353.] 

Lefroy,  C.  J.,^  now  delivered  the  judgment  of  the  court.  In  this 
case  two  questions  have  been  reserved  for  our  consideration.  First, 
whether  there  was  sufficient  evidence  that  Mary  Miller  had  received 

1  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


1008 


REGINA   V.   SMITH.  [CHAP.  XV. 


the  stolen  property ;  and,  secondly,  whether  certain  evidence  regard- 
ing the  former  dealings  between  the  two  prisoners,  to  the  admissi- 
biUty  of  which  no  objection  had  been  originally  offered,  had  been 
left  to  the  jury  with  the  proper  view.  The  evidence  in  support  of 
the  charge  of  receiving  was  this:  the  servant-maid  of  Mary  Miller 
was  produced  as  a  witness,  and  stated  that  her  mistress  kept  a  public- 
house  in  the  town  of  Fermoy.  That  Ellen  Connors,  the  other  prisoner, 
entered  the  shop,  and  went  behind  the  counter  where  she  was  ;  that 
her  mistress  called  her  into  the  shop  ;  that  Connors  had  then  the  pieces 
of  cotton  in  her  hand,  which  Miller  desired  witness  to  take  to  the 
pawn  office  and  pawn,  and  that  she  did  so  accordingly;  that  she 
brought  back  the  money  which  she  then  received,  and  gave  it,  in  the 
presence  of  her  mistress,  to  Connors,  who  was  then  in  the  shop,  but 
that  her  mistress  had  never,  with  her  own  hand,  received  any  part  of 
the  money  from  her.  The  question  was,  whether  this  was  a  receiving 
of  stolen  goods  by  the  mistress?  It  appears  to  us  that  it  was  virtually 
a  receiving  by  Mary  Miller,  inasmuch  as  her  servant,  by  her  order  and 
direction,  received  the  goods  from  the  tliief,  took  them  to  the  paAvn 
office,  and  brought  back  the  money  to  the  thief.  This,  in  our  opinion, 
was  virtually  as  much  a  receiving  of  stolen  goods  as  if  her  own  hand, 
and  not  that  of  her  servant,  had  received  them.  No  question  can  be 
raised  in  this  case  involving  the  necessity  of  those  subtle  distinctions 
taken  on  former  occasions,  with  respect  to  the  continuance  of  the 
possession  of  the  goods  in  the  thief,  for  the  goods  here  were  clearly 
transferred  to  hands  which  were  virtually  those  of  Mary  Miller  her- 
self. No  question  has  been  reserved  relative  to  the  sutliciency  of  the 
evidence  of  guilty  knowledge.  We  are  of  opinion  that  the  evidence 
was  left  to  the  jury  by  the  assistant  barrister  in  the  way  in  which  it 
ought  to  have  been,  and  therefore  that  his  decision  on  both  points 
ought  to  be  affirmed.' 


REGINA   y.    SMITH. 

Crow^n  Case  Reserved.     18.55. 

[Reported  Dearsly  C.  C  494. J 

The  following  case  was  reserved  for  the  opinion  of  the  Court  of 
Criminal  Appeal  by  Mr.  Edwin  James,  Q.  C,  Recorder  of  Brighton. 

At  the  Quarter  Sessions  of  the  Peace  for  the  borough  of  Brighton, 
holden  at  the  Town  Hall  in  the  said  borough,  before  the  Recorder  of 
the  borough,  on  the  8th  day  of  May,  1855,  the  prisoner,  Thomas 
Smith,  was  indicted  for  feloniously  receiving  a  stolen  watch,  the  prop- 
erty of  John  Nelson,  knowing  the  same  to  have  been  stolen.     It  was 

2  Acr.  Eeg.  V.  Rogers,  37  L.  J.  M.  C.  83.— Ed. 


SECT.  I.]  •  REGINA    V.   SMITH.  1009 

proved  that  John  Nelson,  the  prosecutor,  between  eleven  and  twelve 
o'clock  on  the  night  of  the  12th  of  April  in  this  year,  was  in  a  public- 
house  called  the  "  Globe  "  in  P^dward  Street  in  the  said  borough  ;  he  was 
in  company  with  a  prostitute  named  Charlotte  Duncan,  who  lodged  in 
a  room  of  a  house  No.  17  Thomas  Street,  Brighton,  which  belonged 
to  the  prisoner,  of  whom  she  rented  the  room. 

The  prisoner  and  five  or  six  other  persons  were  present  in  the  apart- 
ment in  the  Globe  Inn  when  the  prosecutor  and  Charlotte  Duncan 
entered  ;  while  the  prosecutor  was  drinking  in  the  "  Globe,"  his  watch, 
being  the  watch  named  in  the  indictment,  was  taken  from  his  person 
by  some  one  who  forced  open  the  ring  which  secured  the  watch  to  a 
guard.  The  prosecutor  heard  the  click  of  the  ring  and  immediately 
missed  his  watch,  and  taxed  the  prisoner  as  the  thief.  A  policeman 
was  sent  for  and  a  partial  search  made,  but  the  watch  was  not  found. 
The  prisoner  was  present  all  that  time,  and  also  a  man  named  Hollands 
was  present  all  the  time.  Soon  after  the  loss  of  the  watch  the  prose- 
cutor and  the  girl  Charlotte  Duncan  went  together  to  Charlotte  Dun- 
can's room  in  Thomas  Street.  After  they  had  been  tl>ere  together  little 
more  than  an  hour  the  prisoner  came  into  the  room  where  they  were, 
and  said  to  the  prosecutor,  "  Was  not  you  in  the  '  Globe,'  and  did  not 
you  lose  your  watch?"  The  prosecutor  said,  "Yes."  The  prisoner 
then  said,  "  What  would  yow  give  to  have  your  w^atch  back  again?" 
Prosecutor  said,  "  I'd  give  a  sovereign."  Prisoner  then  said,  "  Well, 
then,  let  the  young  woman  come  along  with  me,  and  I  will  get  you 
the  watch  back  again."  Charlotte  Duncan  and  the  prisoner  then  went 
together  to  a  house  close  by,  in  which  the  prisoner  himself  lived. 
They  went  together  into  a  room  in  which  Hollands  was.  This  was 
nearly  one  o'clock.  There  was  a  table  in  the  room  ;  on  first  going  in 
Charlotte  Duncan  saw  there  was  no  watch  on  the  table,  but  a  few 
minutes  afterwards  she  saw  the  watch  there.  The  prisoner  was  close 
to  the  table.  She  did  not  see  it  placed  there,  but  she  stated  it  must 
have  been  placed  there  by  Hollands,  as,  if  the  prisoner  to  whom  she 
was  talking  had  placed  it  there,  she  must  have  oVjserved  it.  The 
prisoner  told  Charlotte  Duncan  to  take  the  watch  and  go  and  get  the 
sovereign.  She  took  it  to  the  room  in  17  Thomas  Street,  to  the  prose- 
cutor, and  in  a  few  minutes  the  prisoner  and  Hollands  came  to  that 
room.  Hollands  asked  for  the  reward.  The  prosecutor  gave  Hollands 
half-a-crown,  and  said  he  believed  the  watch  was  stolen,  and  told  him 
to  be  off.  Hollands  and  the  prisoner  then  left.  The  prisoner  did  not 
then  say  anything,  nor  did  the  witnesses  see  him  receive  any  money. 
Hollands  absconded  before  the  trial.  The  recorder  told  the  jury  that, 
if  they  believed  that  when  the  prisoner  went  into  the  room  17  Thomas 
Street  and  spoke  to  the  prosecutor  about  the  return  of  the  watch,  and 
took  the  girl  Duncan  with  him  to  the  house  where  the  watch  was  given 
up,  the  prisoner  knew  that  the  watch  was  stolen  ;  and  if  the  jury 
believed  that  the  watch  was  then  in  the  custody  of  a  person  with  the 
cognizance  of  the  prisoner,  that  person  being  one  over  whom  tlie  pris- 

64 


1010 


EEGINA   V.    SMITH.  [cHAP.  XV, 


oner  bad  absolute  control,  so  that  the  watch  would  be  forthcoming  if 
the  prisoner  ordered  it,  there  was  ample  evidence  to  justify  them  in 
convicting  the  prisoner  for  feloniously  receiving  the  watch.  The  jury 
found  the  prisoner  guilty,  and,  in  answer  to  a  question  from  the 
recorder,  stated  that  they  believed  that,  though  the  watch  was  in 
Hollands'  hands  or  pocket,  it  was  in  the  prisoner's  absolute  control. 

Sentence  was  passed  on  the  prisoner,  but  was  respited  until   the 
opinion  of  the  court  could  be  taken. 

The  question  for  the  opinion  of  the  court  is,  if  the  conviction  of  the 
prisoner  is  proper. 

This  case  was  argued  on  the  2d  day  of  June,   18o5,  before  Lord 
Campbell,  C.  J.,  Alderson,  B.,  Erie,  J.,  Piatt,  B.,  and  Crowder,  J. 
No  counsel  appeared  for  the  Crown. 
Creasy,  for  the  prisoner.^ 

Loui>  Cami'hell,  C.  J.     I  think  that  the  conviction  was  right.     In 
the  first  place  the  direction  of  the  learned   recorder  was  unexception- 
able.   According  to  the  decided  cases  as  well  as  to  the  dicta  of  learned 
judges,  manual  possession  is  unnecessary.     If  we  were  to  hold  a  con- 
trary doctrine,  many  receivers  must  escape  with  impunity.     Then  it 
has  been  held  in  decided  cases,  including  Kegina  v.  Wiley,  4  Cox  C.  C. 
412,  that  there  may  be  a  joint  possession  in  the  receiver  and  the  thief ; 
that  is  the  ratio  decidendi  on  which  the  judgment  in  that  case  pro- 
ceeds.    Then,  was  not  there  ample  evidence  to  justify  the   jury  in 
coming  to  the  conclusion  at  which  they  arrived?     I  think  there  was'. 
They  might,  it  is  true,  have  drawn  a  different  conclusion,  and  have 
found  that  Smith  was  the  thief ;  and  if  they  had  drawn  tliat  conclu- 
sion, he  would  have  been  entitled  to  an  acquittal.     Another  inference 
which  they  might  have  drawn,  and  which  would  also  have  resulted  in 
a  verdict  of  not  guilty,  was,  that  Hollands  being  the  thief,  the  watch 
remained  in  his  exclusive  possession,  and  that  the  prisoner  acted  as 
his  agent  in  restoring  the  watch  to  the  prosecutor;  but  the  jury  have 
come^to  a  different  conclusion,  and  I  think  they  were  justified  in  so 
doing.     We  have  instances  in   real  life,  and  we  find  it  represented  in 
novels  and  dramas  drawn  from  real  life,  that  i)ersons  are  employed  to 
commit  larcenies  and  so  deal  with  the  stolen  goods  that  they  may  be 
under  the  control  of  the  employer.     In  this  case  Hollands  may  have 
been  so  employed  by  the  prisoner,  and  the  watch  may  have  been  under 
the  prisoner's  control,  and  if  so,  there  was  evidence  of  a  possession 
both  by  Hollands  and  the  prisoner. 

Alderson,  B.  There  was  abundant  evidence  from  which  the  jury 
might  come  to  the  conclusion  at  which  they  arrived,  although  there  was 
evidence  the  other  way. 

Eklk,  J.  The  doubt  in  these  cases  has  arisen  as  to  the  meaning  of 
the  word  "  receive,"  which  has  been  supposed  to  mean  manual  posses- 
sion by  the  receiver.     In  Regina  v.  Wiley,  Patteson,  J.,  says,  that  a 

1  The  argument  is  omitted. 


SECT.  I.]  EEGINA   V.    WOODWARD.  1011 

manual  possession,  or  even  a  touch,  is  not  essential  to  a  receiving, 
but  tliat  there  must  be  a  control  over  the  goods  by  the  receiver.  Here 
the  question  of  control  was  left  to  the  jury,  and  they  expressly  found 
that  though  the  watch  was  in  Hollands'  hand  or  pocket,  it  was  in  the 
prisoner's  absolute  control. 

Platt,  B.  There  was  some  evidence  that  the  prisoner  might  have 
been  the  thief,  and  the  prosecutor  charged  him  with  being  the  thief ; 
but  a  search  was  made  and  the  watch  was  not  found,  and  it  was  proved 
that  Hollands  absconded  before  the  trial ;  from  that  and  the  other  facts 
of  the  case,  the  jury  might  well  find  that  Hollands  was  the  thief  and 
the  prisoner  the  receiver. 

Crowder,  J.  I  also  think  that  both  the  direction  and  the  convic- 
tion were  right.  There  was  sufficient  evidence  that  Hollands  was  the 
thief.  The  question  is  then  put  to  the  jury,  Was  the  watch  under  the 
control  of  the  prisoner?  And  they  say  it  was.  That  finding  is  suffi- 
cient to  support  their  verdict,  and  the  conviction  was  right. 

Conviction  affirmed. 


REGINA  V.   WOODWARD. 
Crown  Case  Reserved.     1862. 

[Reported  9  Cox  C.  C.  95.] 

Case  reserved  for  the  opinion  of  the  Court  of  Criminal  Appeal.  At 
the  Quarter  Sessions  of  the  peace  for  the  county  of  Wilts,  held  at  Marl- 
borough, on  the  16th  day  of  October,  1861,  before  me,  Sir  John  Wither 
Awdrj-,  Bart.,  and  others  my  fellows,  Benjamin  Woodward,  of  Trow- 
bridge, in  the  count}'  of  Wilts,  dealer,  was  found  guilty  of  receiving 
stolen  goods,  knowing  them  to  have  been  stolen,  and  was  thereupon 
sentenced  to  nine  calendar  months'  imprisonment  with  hard  labor,  and 
the  prisoner  now  is  undergoing  his  sentence. 

The  actual  deliver}'  of  the  stolen  propert}-  was  made  bv  the  principal 
felon  to  the  prisoner's  wife,  in  the  absence  of  the  prisoner,  and  she 
then  paid  6f?.  on  account,  but  the  amount  to  be  paid  was  not  then  fixed. 
Afterwards  the  prisoner  and  the  principal  met  and  agreed  on  the  price, 
and  the  prisoner  paid  the  balance. 

Guilty  knowledge  was  inferred  from  the  general  circumstances  of  the 
case. 

It  was  objected  that  the  guilty  knowledge  must  exist  at  the  time  of 
receiving,  and  that  when  the  wife  received  the  goods  the  guilty  knowl- 
edge could  not  have  come  to  the  prisoner. 

The  court  overruled  this  objection,  and  directed  the  jur}-  that  until 
the  subsequent  meeting,  when  the  act  of  the  wife  was  adopted  b}'  the 
prisoner  and  the  price  agreed  upon,  the  receipt  was  not  so  complete  as 
to  exclude  the  effect  of  the  guilty  knowledge. 


]^Q]2  EEGINA   V.   WOODWARD.  [CHAP.  XV. 

If  the  court  shall  be  of  opinion  that  the  circumstances  before  set  forth 
are  sufficient  to  support  a  conviction  against  the  prisoner  for  the  felo- 
nious receipt,  the  conviction  is  to  stand  confirmed;  but  if  the  court 
shall  be  of  a  contrary  opinion,  then  the  conviction  is  to  be  quashed. 

J.  W.  AWDRY. 

G.  Broderick,  for  the  prisoner.  This  conviction,  it  is  contended, 
cannot  be  sustained.  At  the  trial  it  was  not  said  on  the  part  of  the 
prosecution  that  the  wife  of  the  prisoner  was  her  husband's  agent  in 
receiving  the  property,  but  that  he  subsequently  adopted  her  act  of  re- 
ceiving by  paying  the  balance  of  the  price  agreed  upon.  But  there  was 
no  evidence  oi  any  guilty  receipt  by  the  wife,  or  of  any  subsequent  act 
of  receiving  by  the  prisoner.  The  guilty  knowledge  and  act  of  receiv- 
ing must  be  simultaneous.  In  Reg.  v.  Dring  and  Wife,  1  Dears.  & 
Bell,  329  ;  7  Cox  Crim.  Cas.  382,  where  a  husband  and  wife  were  jointly 
indicted  for  receiving  stolen  goods,  and  the  jury  found  both  guilty,  stat- 
ing that  the  wife  received  them  without  the  control  or  knowledge  of  and 
apart  from  her  husband,  and  that  he  afterwards  adopted  her  receipt,  it 
was  held  that  the  conviction  could  not  be  sustained  as  against  the  hus- 
band ;  and  in  his  judgment,  Cockburn,  C.  J.,  observed  that,  "  If  we 
are  to  take  it  that  the  jury  meant  to  say,  '  We  find  the  prisoner  guilty 
if  the  court  should  be  of  opinion  that  upon  the  facts  we  are  right,'  then 
we  ought  to  be  able  to  see  that  the  prisoner  took  some  active  part  in  the 
matter,  that  the  wife  first  received  the  goods  and  then  the  husband  from 
her,  both  with  a  guilty  knowledge."  [Blackburn,  J.  The  verdict  in 
this  case  is,  that  he  did  receive  them  :  there  is  no  question  raised  as  to 
whether  the  verdict  was  justified.  Ekle,  C.  J.  Receiving  is  a  very 
complex  term.  There  is  the  case  where  two  persons  stole  fowls,  and 
took  them  for  sale  in  a  sack  to  another  person,  who  knew  them  to  have 
been  stolen.  The  sack  was  put  in  a  stable  and  the  door  shut,  while  the 
three  stood  aside  haggling  about  what  was  to  be  paid  for  them.  There 
the  judges  differed  as  to  whether  there  was  a  receiving  by  the  third  per- 
son in  whose  stable  the  sack  was  put.]  That  was  the  case  of  Reg.  v. 
Wiley,  4  Cox  Crim.  Cas.  412.  The  actual  receipt  of  the  goods  was  by 
the  wife,  and  it  is  consistent  with  the  evidence  that  the  goods  may 
never  have  come  into  the  prisoner's  possession  at  all.  (The  case  of 
Reg.  V.  Button,  11  Q.  B.,  3  Cox  Crim.  Cas.  229,  were  also  cited.) 

Erle,  C.  J.  The  argument  of  the  learned  counsel  for  the  prisoner 
has  failed  to  convince  me  that  the  conviction  was  wrong.  It  appears 
that  the  thief  brought  to  the  premises  of  the  prisoner  the  stolen  goods 
and  left  them,  and  that  sixpence  was  paid  on  account  of  them  by 
the  prisoner's  wife,  but  there  was  nothing  in  the  nature  of  a  com- 
plete receipt  of  the  goods  until  the  thief  found  the  husband  and  agreed 
with  him  as  to  the  amount,  and  was  paid  the  balance.  The  receipt  was 
complete  from  the  time  when  the  thief  and  the  husband  agreed  ;  till 
then  the  thief  could  have  got  the  goods  back  again  on  payment  of 
the  sixpence.  I  am  of  opinion,  therefore,  that  the  conviction  should 
be  affirmed. 


SECT.  II.]  EEGINA   V.   DOLAN.  1013 

Blackburn,  J.  The  principal  felon  left  the  stolen  propert}^  with  the 
wife  as  the  husband's  servant,  but  the  court  below,  as  I  understand  the 
case,  doubted  whether  the  husband  could  be  found  guilty  of  feloniously 
receiving,  as  he  was  absent  at  the  time  when  the  goods  were  delivered 
to  tlie  wife,  and  could  not  then  know  tliat  they  were  stolen.  It  is  found 
that,  as  soon  as  the  husband  heard  of  it,  he  adopted  and  ratified  what 
had  been  done,  and  that  as  soon  as  he  adopted  it  he  had  a  guilt}' 
knowledge ;  he  therefore  at  that  time  received  the  goods  knowing  them 
to  have  been  stolen. 

Keating,  J.  I  am  of  the  same  opinion.  The  case  finds  that  the 
agreement  as  to  the  price  was  not  complete  till  the  thief  and  the  hus- 
band agreed.'  I  think  therefore  that  the  receipt  was  not  complete  till 
then,  and  that  the  conviction  was  right.  If  we  were  to  hold  that  the 
conviction  was  not  right,  the  consequences  would  be  very  serious. 

Wilde,  B.  I  read  the  case  as  showing  that  the  wife  received  the 
goods  on  the  part  of  the  prisoner  her  husband,  and  that  act  of  her  was 
capable  of  being  ratified  on  the  part  of  the  prisoner.  If  so,  that  makes 
the  first  act  of  receiving  b}'  the  wife  his  act.  In  the  case  of  Reg.  v. 
Dring  and  Wife,  the  only  statement  was  "  that  the  husband  adopted 
his  wife's  receipt,"  and  the  court  thought  the  word  "  adopted  "  capable 
of  meaning  that  the  husband  passively  consented  to  what  his  wife  had 
done,  and  on  that  ground  quashed  the  conviction.  But  here  the  prisoner 
adopted  his  wife's  receipt  by  settling  and  paying  the  amount  agreed  on 
for  the  stolen  goods. 

Mellor,  J.,  concurred.  Conviction  affirmed. 


SECTION   II. 
Stolen  Property. 

EEGINA  V.   DOLAN. 

Crown  Case  Reserved.     1855. 

[Reported  6  Cox  C  C.  449 ;  Dearsly  C.  C.  436.] 

The  following  case  was  stated  by  M.  D.  Hill,  Esq.,  Q.  C,  Recorder 
of  Birmingham :  — 

At  the  Sessions  held  in  Birmingham,  on  the  5th  day  of  January, 
1855,  William  Rogers  was  indicted  for  stealing,  and  Thomas  Dolan 
for  receiving,  certain  brass  castings,  the  goods  of  John  Turner. 
Rogers  pleaded  guilty,  and  Dolan  was  found  guilty. 

It  was  proved  that  the  goods  were  found  in  the  pockets  of  the  pris- 
oner Rogers  by  Turner,  who  then  sent  for  a  policeman,  who  took  the 
goods  and  wrapped  them  in  a  handkerchief,  Turner,   the   prisoner 


1014  REGINA    V.   DOLAN.  [CHAP.  XV. 

Rogers,  and  the  policeman  .going  towards  Dolan's  shop.  When  they 
came  near  it  the  policeman  gave  the  prisoner  Rogers  the  goods,  and 
the  latter  was  then  sent  by  Turner  to  sell  them  where  he  had  sold 
others  ;  and  Rogers  then  went  into  Dolan's  shop  and  sold  them  and 
gave  the  money  to  John  Turner  as  the  proceeds  of  the  sale.  Upon 
these  facts  it  was  contended  on  the  part  of  Dolau  that  Turner  had 
resumed  the  possession  of  the  goods,  and  that  Rogers  sold  them  to 
Dolan  as  the  agent  of  Turner,  and  that  consequently  at  the  time  they 
were  received  by  Dolan,  they  were  not  stolen  goods  within  the  mean- 
ing of  the  statute. 

I  told  the  jury,  upon  the  authority  of  the  case  of  Regina  v.  Lj^ons 
and  another,  C.  &  M.  217,  cited  b}'  the  counsel  for  the  prosecution, 
that  the  prisoner  was  liable  to  be  convicted  of  receiving,  and  the  jury 
found  him  guilty. 

Upon  this  finding  I  request  the  opinion  of  the  Court  of  Appeal  in 
Criminal  Cases  on  the  validity  of  Dolan's  conviction. 

Dolan  has  been  sent  back  to  prison,  and  I  respited  judgment  on  the 
conviction  against  him  until  the  judgment  of  the  court  above  shall  have 
been  given. 

O'Brien,  for  the  prisoner.  This  conviction  cannot  be  sustained. 
The  objection  is,  that  when  the  goods  reached  the  hands  of  Dolan 
they  were  not  stolen  goods.  Thay  had  been  restored  to  the  posses- 
sion of  the  owner,  and  the  sale  to  the  prisoner  was  with  the  owner's 
authority. 

Lord  Campbell,  C.  J.  Tliere  seems  to  be  great  weight  in  that 
objection  but  for  the  authority  of  the  case  cited.  It  can  hardly  be 
supposed  that  if  goods  were  stolen  seven  years  ago,  and  had  been  in 
the  possession  of  the  owner  again  for  a  considerable  period,  there  could 
be  a  felonious  receipt  of  them  without  a  fresh  stealing. 

O'Brien.  That  was  the  view  taken  by  the  learned  recorder ;  and 
R.  V.  Lyons,  C.  &  M.  217,  which  was  cited  for  the  prosecution,  does 
not  appear  to  have  been  a  case  much  considered.  Coleridge,  J.,  in 
that  case,  said,  that  for  the  purposes  of  the  da}',  he  should  consider 
the  evidence  as  sufficient  in  point  of  law  to  sustain  the  indictment,  but 
would  take  a  note  of  the  objection. 

Coleridge,  J.     I  certainly  do  not  think  so  to-day. 

O'Brien.  There  is  also  a  slight  circumstance  of  distinction  between 
that  case  and  the  present.  It  does  not  ai)pear  in  that  case  that  the 
stolen  property  was  ever  actually  restored  to  the  hands  of  the  owner, 
nor  that  he  expressly  directed  the  thief  to  take  it  to  the  prisoner. 
(He  was  stopped.) 

BeasJey,  for  the  prosecution.  R.  v.  Lyons  is  expressly  in  point,  and 
the  learned  judge  who  decided  it  does  appear  to  have  had  his  attention 
recalled  to  the  point  after  the  conviction,  and  still,  upon  deliberation, 
to  have  thought  there  was  nothing  in  the  objection.  The  facts  are  thus 
stated  in  the  marginal  note:  "  A  lad  stole  a  brass  weight  from  his 
master,  and  after  it  had  been  taken  from  him  in  his  master's  presence 


SECT.  II.]  REGINA   V.   DOLAN.  1015 

it  was  restored  to  him  again  witli  his  master's  consent  in  order  that  he 
might  sell  it  to  a  man  to  whom  he  had  been  in  the  ha])it  of  selling  sim- 
ilar articles  which  he  had  stolen  before.  The  lad  did  sell  it  to  the 
man  ;  and  the  man  being  indicted  for  receiving  it  of  an  evil-disposed 
person,  well  knowing  it  to  have  been  stolen,  was  convicted  and  sen- 
tenced to  be  transported  seven  years."  The  report  adds  that  after 
the  sentence,  "  the  matter  was  subsequently  called  to  his  Lordship's 
attention  by  the  prisoner's  counsel,  yet  no  alteration  was  made  in  the 
judgment  of  the  court ;  from  which  it  is  to  be  inferred  that,  upon  con- 
sideration, his  Lordship  did  not  think  that  in  point  of  law  the  objection 
ought  to  prevail."  The  present  is,  however,  a  stronger  case  than 
that ;  because  here  in  truth  the  master  did  not  recover  possession  of 
the  stolen  goods.  They  were  in  the  hands  of  the  police  ;  and  what 
the  master  did  must  be  considered  as  done  under  the  authority  of  the 
police. 

Lord  Campbell,  C.  J.     No  ;  the  policeman  was  the  master's  agent. 

Platt,  B.     And  the  sale  was  by  direction  of  the  master. 

Beasley.  The  statute  does  not  require  that  the  receipt  should  be 
directly  from  the  thief.  It  only  requires  that  the  prisoner  should 
receive  stolen  goods,  knowing  them  to  have  been  stolen  ;  and  that  is 
proved  in  this  case.  In  many  cases  it  has  been  held  that  where  the 
owner  of  property  has  become  acquainted  with  a  plan  for  robbing  him, 
his  consent  to  the  plan  being  carried  out  does  not  furnish  a  defence  to 
the  robbers.     R.  v.  Eggington,  2  B.  &  P.  508. 

Lord  Campbell,  C.  J.  But  to  constitute  a  felonious  receiving,  the 
receiver  must  know  that  at  that  time  the  property  bore  the  character 
of  stolen  property.  Can  it  be  said  that,  at  any  distance  of  time,  goods 
which  had  once  been  stolen  would  continue  to  be  stolen  goods  for  the 
purpose  of  an  indictment  for  receiving,  although  in  the  mean  time 
they  may  have  been  in  the  owner's  possession  for  years? 

Cresswell,  J.  The  answer  to  that  in  this  case  seems  to  be  that 
the  policeman  neither  restored  the  property  nor  the  possession  to  the 
master  ;  that  the  goods  were  in  the  custody  of  the  law  ;  and  that  the 
master's  presence  made  no  difference  in  that  respect. 

Beasley.  That  is  the  argument  for  the  prosecution  ;  and  it  is  man- 
ifest that  if  the  policeman  had  dissented  from  the  plan  of  sending 
Rogers  to  Dolan's  shop,  the  master  could  not  have  insisted  upon  the 
policeman  giving  up  the  property  to  him. 

Lord  Campbell,  C.  J.  I  feel  strongly  that  this  conviction  is  wrong. 
I  do  not  see  how  it  can  be  supported,  unless  it  could  be  laid  down 
that,  if  at  any  period  in  the  history  of  a  chattel  once  stolen,  though 
afterwards  restored  to  the  possession  of  the  owner,  it  should  be  re- 
ceived by  any  one  with  a  knowledge  that  it  had  been  stolen,  an  offence 
would  be  committed  within  the  statute.  I  think  that  that  would  not 
be  an  offence  within  the  statute  any  more  than  it  would  make  the 
receiver  an  accessory  to  the  felony  at  common  law.  If  the  article  is 
restored  to  the  owner  of  it,  and  he,  having  it  in  his  possession,  after- 


1016  EEGINA   V.   DOLAN.  [CIIAP.  XV. 

wards  bails  it  to  another  for  a  particular  purpose  of  delivering  it  to  a 
third  person,  and  that  third  person  receives  it  from  that  bailee,  I  do 
not  see  how  it  can,  under  these  circumstances,  be  feloniously  received 
from  that  bailee.  Then  what  are  the  facts  here?  [His  Lordship 
stated  the  facts  as  above.]  Turner,  the  owner,  therefore  had,  I  think, 
as  much  possession  of  the  goods  as  if  he  had  taken  them  into  his  own 
hands,  and  with  his  own  hands  delivered  them  to  another  person  for 
a  particular  purpose,  which  was  performed.  He  was,  subsequent  to 
the  theft,  the  bailor  and  the  other  person  was  the  bailee  of  the  goods. 
Then  they  were  carried  to  the  prisoner  by  the  authority  of  the  owner ; 
and  I  cannot  think  that  under  those  circumstances  there  was  a  receiv- 
ing within  the  statute.  As  to  the  case  cited,  I  cannot  help  thinking 
that  the  facts  cannot  be  quite  accurately  stated,  and  that  there  was 
sometliiug  more  in  that  case  than  appears  in  the  report ;  but  if  not,  I 
am  bound  to  say  that  I  do  not  agree  in  that  decision. 

CoLEKiDGK,  J.  I  have  no  recollection  of  the  case  cited,  and  I  have 
no  right,  therefore,  to  say  that  it  is  not  accurately  reported;  but, 
assuming  it  to  be  so,  I  am  bound  to  say  that  I  think  I  made  a  great 
mistake  there.  What  is  the  case?  If  for  a  moment  the  interference 
of  the  policeman  is  put  out  of  the*  question,  the  facts  are,  that  the 
goods  which  had  been  stolen  were  restored  to  the  possession  of  the 
real  owner  and  were  under  his  control,  and  having  been  so  restored, 
they  were  put  again  into  the  possession  of  Kogers  for  a  specific  pur- 
pose, which  he  fulfilled.  It  seems  then  to  me  that  when,  the  second 
time,  they  reached  the  hands  of  Rogers,  they  had  no  longer  the  char- 
acter of  stolen  goods.  Then,  if  that  would  be  the  case,  supposing  the 
policeman  to  be  out  of  the  question,  does  the  interference  of  the  police- 
man according  to  the  facts  here  stated  make  any  difference  ?  1  think 
not.  It  is  the  master  who  finds  the  goods  and  sends  for  a  policeman  ; 
and  it  is  by  the  authority  of  the  master  that  the  policeman  takes  and 
keeps  the  goods,  and  afterwards  hands  them  back  to  Kogers.  Indeed, 
it  seems  to  me  that  all  that  was  done  was  done  by  Turner's  authority ; 
and  that  it  must  be  considered  that  the  property  was  under  the  control 
of  the  real  owner  when  he  sent  Rogers  with  them  to  the  prisoner.  In 
this  state  of  facts,  the  interference  of  the  policeman  seems  to  me  of 
no  importance. 

CuESSWKLL,  J.  I  do  not  dissent  from  the  decision  that  this  con- 
viction is  wrong ;  but  as  we  are  called  upon  in  this  court  to  give  the 
reasons  of  our  judgment,  I  must  say  that  I  cannot  concur  in  all  the 
reasons  which  I  have  heard  given  in  this  case.  If  it  had  been  neces- 
sary to  hold  that  a  policeman,  by  taking  the  stolen  goods  from  the 
pocket  of  the  thief,  restores  the  possession  to  the  owner,  I  should  dis- 
sent. I  think  that  we  cannot  put  out  of  question  the  interference  of 
the  policeman  ;  and  that  whilst  the  goods  were  in  his  hands  they  were 
in  the  custody  of  the  law  ;  and  that  the  owner  could  not  have  de- 
manded them  from  the  policeman  or  maintained  trover  for  them.  But 
as  the  case  finds  that  the  policeman  gave  them  back  to  Rogers,  and 


SECT.  II.]  R.EGINA   V.    SCHMIDT.  1017 

then  the  owner  desired  him  to  go  and  sell  them  to  Dolan,  I  think  that 
Rogers  was  employed  as  an  agent  of  the  owner  in  selling  them,  and 
that  consequently  Dolan  did  not  feloniously  receive  stolen  goods. 

Platt,  B.  I  am  of  the  same  opinion.  The  case  is,  that  the  stolen 
goods  were  found  by  the  owner  in  the  pocket  of  the  thief.  They  were 
restored  to  his  possession,  and  it  does  not  appear  to  me  very  material 
whether  that  was  done  by  his  own  hands  or  by  the  instrumentality  of 
the  policeman.  Things  being  in  that  state,  it  seems  to  have  come 
into  their  heads  tliat  they  might  catch  the  receiver ;  and  it  was  sup- 
posed that  by  putting  the  stolen  property  back  into  the  custody  of 
Rogers,  they  could  place  all  parties  statu  quo  they  were  when  the 
property  was  found  in  the  pocket  of  Rogers ;  but  I  agree  with  the  rest 
of  the  court  that  the  Act  of  Parliament  does  not  apply  to  a  case  of  this 
kind  ;  for  if  it  did,  1  see  no  reason  why  it  should  not  equally  apply  to 
restored  goods  stolen  ten  years  ago. 

Williams,  J.  The  reason  why  I  think  the  conviction  wrong  is,  that 
the  receipt,  to  come  within  the  statute,  must  be  a  receipt  without  the 
authority  of  the  owner.  Looking  at  the  mere  words  of  the  indictment, 
every  averment  is  proved  by  this  evidence ;  but  then  the  question  is, 
whether  such  a  receipt  was  proved  as  is  within  the  statute,  namely,  a 
receipt  without  the  owner's  authority  ;  and  here  Rogers  was  employed 
by  the  owner  to  sell  to  Dolan.  Conviction  quashed} 


REGINA  V.   SCHMIDT. 

Crowx  Case  Reserved.     I860. 

[Reported  10  Cox  C.  C.  172;  Law  Reports,  1  Crown  Cases  Reserved,  15.] 

Case  reserved  for  the  opinion  of  this  court  by  the  deputy-chair- 
man of  the  Quarter  Sessions  for  the  western  division  of  the  County  of 
Sussex. 

John  Daniels,  John  Scott,  John  Townsend,  and  Henry  White  were 
indicted  for  having  stolen  a  carpet-bag  and  divers  other  articles,  the 
property  of  the  London,  Brighton,  and  South  Coast  Railway  Com- 
pany ;  and  the  prisoner,  Fanny  Schmidt,  for  having  feloniously  re- 
ceived a  portion  of  the  same  articles,  well  knowing  the  same  to  hava 
been  stolen. 

The  evidence  adduced  before  me  as  deputy-chairman  of  the  Court 
of  Quarter  Sessions  at  Chichester,  for  the  western  division  of  the 
County  of  Sussex,  on  the  20th  October,  1865,  so  far  as  relates  to  the 
question  I  have  to  submit  to  the  Court  of  Criminal  Appeal,  was  as 
follows :  — 

1  Ace.  Reg.  V.  Hancock,  14  Cox  C.  C.  119;  U.  S.  v.  De  Bare,  6  Biss.  358.  —Ed. 


2018  KEGINA   V.    SCHMIDT.  [CHAP.  XV. 

On  the  29tli  July,  1865,  two  passengers  by  the  prosecutors'  line  of 
railway  left  a  quantity  of  luggage  at  the  Arundel  station,  which  luggage 
was  shortly  afterwards  stolen  therefrom. 

On  the  30th  July  a  bundle  containing  a  portion  of  the  stolen  prop- 
erty was  taken  to  the  Angmering  station,  on  the  same  line  of  railway, 
by  the  prisoner  Townsend,  and  forwarded  by  him  to  the  female  pris- 
oner, addressed  "  Mr.  F.  Schmidt,  AVaterloo  Street,  Hove,  Brighton." 
The  bundle  was  transmitted  to  Brighton,  in  the  usual  course,  on  Sun- 
day morning,  the  30th. 

Meanwhile  the  tlieft  had  been  discovered,  and  shortly  after  the 
bundle  had  readied  the  Brighton  station,  a  policeman  (Carpenter) 
attached  to  the  railway  company,  opened  it,  and  having  satisfied  him- 
self that  it  contained  a  portion  of  the  property  stolen  from  the  Arundel 
station,  tied  it  up  again,  and  directed  a  porter  (Dunstall)  in  whose 
charge  it  was,  not  to  part  with  it  without  further  orders. 

About  8  p.  M.  of  the  same  day  (Sunday,  30th),  the  prisoner  John 
Scott  went  to  •(the  station  at  Brighton  and  asked  the  porter  (Dunstall) 
if  he  had  got  a  parcel  from  the  Angmering  station  in  the  name  of 
Schmidt,  Waterloo  Street.  Dunstall  replied  "  No."  Scott  then  said, 
"  It  is  wrapped  up  in  a  silk  handkerchief,  and  is  directed  wrong ;  it 
ought  to  have  been  directed  to  22  Cross  Street,  "Waterloo  Street." 
Dunstall,  in  his  evidence,  added,  "  I  knew  the  parcel  was  at  the 
station,  but  I  did  not  say  so  because  1  had  received  particular  orders 
about  it." 

The  four  male  prisoners  were  apprehended  the  same  evening  in 
Brighton  on  the  charge,  for  which  they  were  tried  before  me  and 
convicted. 

On  Monday  morning,  the  31st  July,  the  porter  (Dunstall),  by  the 
direction  of  the  policeman  (Carpenter)  took  the  bundle  to  the  house 
No.  22  Cross  Street,  "Waterloo  Street,  occupied  as  a  lodging-house  and 
beer-house  by  the  female  prisoner  and  her  husband  (who  was  not  at 
home  or  did  not  appear),  and  asked  if  her  name  was  Schmidt,  on 
ascertaining  which  he  left  the  bundle  with  her  and  went  away.  Car- 
penter and  another  policeman  then  went  to  the  house,  found  the  bundle 
unopened,  and  took  the  prisoner  to  the  town  hall. 

All  the  prisoners  were  found  guilty,  and  I  sentenced  each  of  them  to 
six  months'  imprisonment  with  hard  labor.  They  are  now  in  Petworth 
jail  in  pursuance  of  that  sentence. 

At  the  request  of  the  counsel  for  the  female  prisoner  I  consented  to 
reserve  for  the  opinion  of  this  court  the  question,  — 

"Whether  the  goods  alleged  to  have  been  received  by  her  had  not, 
under  the  circumstances  stated,  lost  their  character  of  stolen  property, 
so  that  she  ouglit  not  to  have  been  convicted  of  receiving  them  with 
a  guilty  knowledge  within  the  statute.  Hasler  Hollist. 

Pearce  ( Willoughhy  with  him),  for  the  prisoner.  The  conviction  is 
wrong.     To  support  a  conviction  for  receiving  stolen  goods,  it  must 


SECT.  II.]  EEGINA   V.   SCHMIDT.  1019 

appear  that  the  receipt  was  without  the  owner's  authority.  In  this 
case,  in  consequence  of  the  conduct  of  the  railway  company,  the 
property  had  lost  its  character  of  stolen  property  at  the  time  it  was 
delivered  at  the  receiver's  house  by  the  railway  porter.  The  property 
is  laid  in  the  indictment  as  the  property  of  the  railway  company,  and 
Carpenter  was  not  an  ordinary  policeman,  but,  as  the  case  states,  a 
policeman  attached  to  the  railway  company.  He  opens  the  bundle, 
and  finding  therein  some  of  the  stolen  property,  he  gives  it  to  Dun- 
stall,  and  orders  it  to  be  detained  until  further  orders,  and  in  the 
meantime  the  thieves  were  arrested ;  Carpenter  then  directs  Dunstall 
to  take  the  bundle  to  the  receiver's  house,  so  that  the  receiver  got  the 
stolen  property  from  the  railway  company,  who  alone  on  this  indict- 
ment are  to  be  regarded  as  the  owners  of  the  property.  The  railway 
company,  the  owners,  having  got  their  property  back,  make  what  must 
be  considered  a  voluntary  delivery  of  it  to  the  receiver.  The  case  is 
similar  to  Regina  v.  Dolan,  6  Cox  C.  C.  449  ;  1  Dears.  C.  C.  436, 
where,  stolen  goods  being  found  in  the  pockets  of  the  thief  by  the 
owner,  who  sent  for  a  policeman,  and  then,  to  trap  the  receiver,  the 
goods  were  given  to  the  thief  to  take  them  to  the  receiver's,  which  he 
did,  and  the  receiver  was  afterwards  arrested,  it  was  held  tliat  the 
receiver  was  not  guilty  of  feloniously  recei-^ing  stolen  goods,  inasmuch 
as  they  were  delivered  to  him  under  the  authority  of  the  owner.  In 
that  case  Regiua  v.  Lyons,  C.  &  M.  217,  was  expressly  overruled. 
Lord  Campbell,  C.  J.,  said,  in  Regina  v.  Dolan,  "  If  an  article  once 
stolen  has  been  restored  to  the  owner,  and  he  having  had  it  fully  in  his 
possession,  bails  it  for  any  particular  purpose,  how  can  any  person 
who  receives  the  article  from  the  bailee  be  said<to  be  guilty  of  receiv- 
ing stolen  goods  within  the  meaning  of  the  Act  of  Parliament  ?  " 

Hurst,  for  the  prosecution.  Unless  this  case  is  distinguishable  from 
Regina  v.  Dolan,  the  conviction,  it  must  be  conceded,  is  wrong.  But 
the  facts  of  this  case  are  more  like  the  view  taken  by  Cresswell,  J.,  in 
Regina  v.  Dolan,  "That  while  the  goods  were  in  the  hands  of  the 
policeman,  they  were  in  the  custody  of  the  law  ;  and  the  owner  could 
not  have  demanded  them  from  the  policeman,  or  maintained  trover 
for  them."  In  that  case  the  real  owner  intervened,  and  had  manual 
possession  of  the  stolen  goods  ;  here  he  does  not.  The  goods  be- 
longed to  the  railway  passenger,  and  the  company  are  only  bailees. 
[Mellor,  J.  The  policeman  merely  opened  the  bundle  in  the  course 
of  its  transit  to  see  what  was  in  it,  and  then  sent  it  according  to  its 
direction.  It  was  in  the  hands  of  the  policeman,  not  of  the  company. 
Erle,  C.  J.  Suppose  a  laborer  steals  wheat,  and  he  sends  it  by  a  boy 
to  his  accomplice,  and  the  policeman  stops  the  bo}-,  ascertains  what  he 
has  got,  then  tells  him  to  go  on,  and  follows  and  apprehends  the  ac- 
complice, is  not  the  accomplice  guilt}- of  feloniously  receiving?  Mel- 
i.OK,  J.  Here  the  policeman  does  nothing  to  alter  the  destination  of 
the  bundle.  The  element  of  the  real  owner  dealing  with  the  stolen 
property  is  wanting  in  this  case.     Keating,  J.     Scott  directs  the  ad- 


1020 


EEGINA   V.    SCHMIDT.  [CHAP.  XV. 


dress  to  be  changed.]  The  bundle  was  sent  by  the  thieves  through  the 
railway  corapan° to  the  receivers;  the  real  owner  had  nothing  to  do 
with  this  part  of  the  transaction.  [Lush,  J.  If  the  true  owner  had 
sued  the  company  for  the  property,  the  company  could  not  have  jus- 
tified detaining  or  converting  it.]  If  a  policeman  knows  of  stolen 
goods  being  in  the  hands  of  an  innocent  agent,  and  does  not  take 
possession  for  the  owner,  and  the  innocent  agent,  by  the  policeman's 
directions,  delivers  them  to  a  receiver,  that  does  not  prevent  the 
receiver  being  guilty  of  feloniously  receiving. 

Fearce,  in  reply.  Before  the  bundle  was  sent  out  for  delivery  the 
thieves  were  in  custody,  and  having  secured  them,  Carpenter  then 
frives  orders  for  the  bundle  to  be  delivered  to  the  receiver.  Carpenter 
was  the  servant  of  the  railway  company,  who  are  the  owners  for  the 
purpose  of  this  indictment,   and  the  delivery  therefore   was   by  the 

owners. 

[Erle,  C.  J.,  and  Mkllor,  J.,  were  of  opinion  that  the  conviction 
was  right,  but  Martin,  B.,  Keating,  and  Lusii,  JJ.,  held  the  convic- 
tion wrong.  In  consequence  of  the  prisoner  having  suffered  half  the 
term  of  imprisonment  from  inability  to  get  bail  and  the  further 
unavoidable  delay,  the  case  was  not  sent  to  be  argued  before  all  the 

judges.] 

Martin,  B.  I  think  that  this  conviction  was  wrong  on  two  grounds, 
the  one  substantial,  the  other  formal.  I  think  that  Mr.  Pcarce's  argu- 
ment, founded  on  the  indictment,  that  the  property  is  there  laid  to  be 
property  of  the  railway  company,  is  well  founded  ;  and  it  seems  to  me 
that  Dolan's  case  applies  to  this. 

Erle,  C.  J.  I  am  of  opinion  that  the  conviction  was  right.  The 
question  is  whether,  at  the  time  this  stolen  property  was  received  by 
the  prisoner,  it  was  the  property  of  the  London  and  Brighton  Railway 
Company ;  and  if  so  whether,  when  the  policeman  Carpenter  caused 
the  delivery  to  be  stopped  for  the  purpose  of  detecting  the  parties 
implicated,  it  thereby  lost  the  character  of  stolen  property.  If  it  had 
lost  the  character  of  stolen  property  at  the  time  it  was  received  by  the 
prisoner,  the  re*ceiving  by  her  will  not  amount  to  felony.  Bi.t  in  this 
case  I  think  that  the  railway  company,  when  they  took  this  bundle  into 
their  possession,  were  acting  as  bailees  of  the  thief,  and  were  innocent 
agents  in  forwarding  it  to  the  receiver,  and  that  the  things  did  not  lose 
their  character  of  stolen  property  by  what  was  done  by  the  policeman. 

Keating,  J.  I  agree  with  my  brother  Martin  that  the  conviction 
was  wrong.  It  seems  conceded,  on  the  authority  of  Dolan's  case,  that  if 
the  property  had  got  back  again  for  any  time  into  the  hands  of  the  true 
owner,  the  conviction  would  be  wrong.  It  is  said  that,  in  this  case, 
the  owners  mentioned  in  the  indictment,  the  railway  company,  were 
not  the  real  owners,  whereas  in  Dolan's  case  the  real  owner  intervened. 
But  I  think  there  is  no  distinction  in  principle  between  this  case  and 
that.  The  railway  company  are  alleged  in  the  indictment  to  be  the 
owners  of  the  property,  and  we  sitting  here  can  recognize  no  other 


SECT.  II.]  REGINA   V.    SCHMIDT.  1021 

persons  thun  them  ;  the}''  are  the  owners  from  whom  the  property  was 
stolen,  and  it  got  back  to  their  possession  before  it  was  received  by  the 
prisoner.  I  can  see  no  real  distinction  between  this  case  and  Dolan's. 
All  the  reasons  given  for  the  judgment  in  that  case  applj'  equally  to 
the  case  of  the  ownership  in  this  case.  The  principle  I  take  to  be, 
that  when  once  the  party  having  the  right  of  control  of  the  property 
that  is  stolen  gets  that  control,  the  transaction  is  at  an  end,  and  there 
can  be  no  felonious  receipt  afterwards.  I  think  the  test  put  b}'  my 
brother  Lush  in  the  course  of  the  argument,  as  to  the  real  owner  suing 
the  railway  company  for  the  property  after  they  had  got  the  control  of 
it,  is  decisive  of  the  matter. 

Mellok,  J.  I  agree  entirely  with  m}-  brother  Erie,  C.  J.,  and  think 
the  conviction  was  right.  The  indictment  rightly  alleges  the  property 
to  have  been  in  the  railway'  company  at  the  time  it  was  stolen  ;  they 
had  the  bailment  of  it  from  the  true  owner.  Then  it  is  stolen  while  in 
their  custody,  and  the  next  step  is,  the  thieves  afterwards  send  a  por- 
tion of  it  by  the  same  railway  company  to  be  forwarded  to  the  receiver 
at  Brighton  ;  so  that  the  railwa}'  company  get  possession  of  this  part 
from  the  thieves  under  a  new  bailment.  Then  the  policeman  examines 
the  property  and  directs  it  not  to  be  forwarded  until  further  orders ; 
but  this  was  not  done  with  the  view  of  taking  possession  of  it  or  alter- 
ing its  transit,  but  merely  to  see  whether  it  was  the  stolen  property. 
I  agree  with  Dolan's  case,  but  in  the  present  case  I  think  the  stolen 
property  had  not  got  back  to  the  true  owner. 

Lush,  J.  I  agree  with  my  brothers  Martin,  B.,  and  Keating,  J., 
and  think  that  the  conviction  was  wrong.  I  think  that  the  goods  had 
got  back  to  the  owner  from  whom  they  had  been  stolen.  Had  the  rail- 
way company  innocently  carried  the  goods  to  their  destination  and 
delivered  them  to  the  prisoner,  the  felonious  receipt  would  have  been 
complete  ;  but  while  the  goods  are  in  their  possession,  having  been 
previously  stolen  from  them,  the  goods  are  inspected,  and  as  soon  as  it 
was  discovered  that  they  were  the  goods  that  had  been  stolen,  the 
railway  compan}-  did  not  intend  to  carr}'  them  on  as  the  agents  of  the 
bailor ;  the  forwarding  them  was  a  mere  pretence  for  the  purpose  of 
finding  out  who  the  receiver  was.  It  was  not  competent  to  the  railway 
compan}'  to  sa}-,  as  between  them  and  the  original  bailor,  that  the}-  had 
not  got  back  the  goods.  They  were  bound  to  hold  them  for  him.  In 
afterwards  forwarding  the  goods  to  the  prisoner,  the  company  was 
using  the  transit  merely  as  the  means  of  detecting  the  receiver. 

Martin,  B.  I  ox\\y  wish  to  add  that  I  meant  to  say  that  I  think 
the  conviction  wrong  in  substance  in  consequence  of  the  interference  of 
the  policeman  with  the  property,  and  this  independently  of  the  form 
of  indictment.  Conviction  quashed} 

1  Ace.  Reg.  V.  Villensky,  [1892]  2  Q.  B.  597.  — Ed. 


1022 


KEGINA   V.    CAKR.  [CHAP.  XV. 


REGINA  y.  CARR. 
Central  Criminal  Court.     1877. 

[Reported  15  Cox  C.  C.     131  n.] 

John  Carr  was  indicted  for  stealing  168  bonds  of  the  Peruvian 
Government,  the  property  of  Lionel  Cohen  and  others ;  second  count 
for  feloniously  receiving  the  same. 

There  were  other  counts  charging  him  as  an  accessary  before  and 
after  the  fact. 

Tiie  Solicitor  General  and  Poland  were  counsel  for  the  prosecution, 
and  Besley  and  Grain  for  the  defence. 

The  bonds  in  question,  on  the  2d  June,  1877,  were  transmitted  by 
the  prosecutors  to  a  customer  in  Paris.  They  were  traced  safely  as 
far  as  Calais  and  were  stolen  from  the  train  after  leaving  that 
place. 

On  the  4th  of  September  the  prisoner  was  found  dealing  with  them 
in  London,  and  the  question  arose  as  to  the  jurisdiction  of  this  court 
to  try  the  case,  the  robbery  having  been  committed  in  France. 

The  Solicitor  General  submitted  that  the  prosecutors  never  having 
parted  with  their  property  in  the  bonds,  they  were  still  under  the  pro- 
tection of  the  law,  and  that  the  subsequent  possession  of  the  bonds 
in  this  country  was  sufliciently  recent  to  enable  the  jury  to  find  a 
verdict  of  larceny  against  a  person  wlio  was  dishonestly  dealing  with 
them  here.  The  decision  in  Rex  v.  Prowes,  1  Moody  C.  C.  349,  was 
certainly  opposed  to  this  view ;  but  no  reasons  were  given  for  that 
judgment,  and  a  doubt  as  to  the  soundness  of  the  decision  was  ex- 
pressed by  Parke,  B.,  in  Regina  v.  Madge,  9  C.  &  P.  29.  The  case  of 
Regina  v.  Debrueill,  11  Cox  C.  C.  207,  was  referred  to.  As  to  the 
counts  charging  the  prisoner  with  receiving,  and  also  as  an  accessary, 
the  24  »&  25  Vict.  c.  94  contemplated  a  case  of  this  kind,  where  the 
original  offence  was  committed  abroad. 

Besley  relied  on  the  decision  in  Rex  v.  Prowes,  tibi  sup.,  and  Regina 
V.  Hogetoran,  Cent.  Crim.  Court  Sess.  Paper,  vol.  79,  2G8,  and  Regina 
V.  Nadal,  84  Cent.  Crim.  Court  Sess.  Paper,  295. 

Denman,  J.  There  can  be  no  doubt  that  this  was  a  larceny  fully 
completed  in  France.  I  do  not  at  all  say  that  it  might  not  be  a  very 
reasonable  thing  that  any  one  afterwards  dealing  here  with  property 
so  stolen  might  make  cogent  evidence  of  having  received  them  know- 
ing them  to  have  been  stolen,  just  as  much  as  if  they  had  been  stolen 
in  England  ;  but  it  appears  to  me  that  the  point  has  been  too  solemnly 
decided  for  me  to  give  the  go-by  to  those  decisions.  It  has  been 
solemnly  decided  and  acted  upon  so  often  that  there  is  no  jurisdiction 
in  England  to  try  a  case  where  the  stealing  has  been  committed  abroad, 
either  against  the  principal  or  the  accessory,  that  I  have  nothing  to  do 
but  to  act  upon  those  decisions  and  to  direct  an  acquittal  in  this  case. 


SECT.  II.]  STATE   V.   IVES.  1023 

I  eutertaiu  uo  doubt  that  the  case  of  Rex  v.  Provves,  uhi  sup.,  is 
directly  in  poiut,  and  Regiua  v.  Madge,  ubi  siq?..,  fortifies  it  to  the 
extent  of  recognizing  and  acting  upon  it.  Debriieill's  case  also 
decides  that  a  conviction  of  receiving  under  similiar  circumstances 
could  not  be  sustained.     The  prisoner  must  therefore  be  acquitted. 


STATE  V.   IVES. 
Supreme  Court  of  Norti?  Carolina.     1852. 

[Reported  13  Iredell,  338.] 

Appeal  from  the  Superior  Court  of  Law  of  Currituck  County,  at  the 
fall  term,  1851,  his  honor  Judge  Settle  presiding. 

The  defendant  was  indicted  for  receiving  stolen  goods,  and  was  con- 
victed upon  the  following  counts  in  the  bill  of  indictment :  — 

5th  count.  And  the  jurors,  etc.,  do  further  present,  that  the  said 
Josiah  Ives,  afterwards,  to  wit,  on  the  1st  day  of  February,  a.  d. 
1851,  in  the  county  aforesaid,  with  force  and  arms,  one  bale  of  cotton, 
of  the  value  of  ten  shillings,  and  one  barrel  of  tar,  of  the  value  of  six 
shillings,  of  the  goods  and  chattels  of  said  Caleb  T.  Sawyer,  before 
then  feloniously  stolen,  taken,  and  carried  away,  feloniously  did  re- 
ceive and  hire,  he,  the  said  .Josiah  Ives,  then  and  there  well  knowing 
the  said  goods  and  chattels  to  have  been  feloniously  stolen,  taken,  and 
carried  away,  contrary  to  the  form  of  the  statute  in  such  cases  made 
and  provided,  and  against  the  peace  and  dignity  of  the  State. 

6th  count.  And  the  jurors,  etc.,  do  further  present,  that,  at  and  in 
the  county  aforesaid,  on  the  1st  day  of  March,  1851,  certain  goods  and 
chattels,  to  wit,  one  bale  of  cotton,  of  the  value  of  ten  shillings,  and 
one  barrel  of  tar,  of  the  value  of  six  shillings,  of  the  goods  and  chattels 
of  Caleb  T.  Sawyer,  feloniously  were  stolen,  taken,  and  carried  away, 
by  some  person  to  the  jurors  unknown  ;  and  that  the  said  Josiah  Ives, 
afterwards,  to  wit,  on  the  2d  day  of  March,  1851,  in  the  county  afore- 
said, the  said  bale  of  cotton  and  the  said  barrel  of  tar  feloniously  did 
have  and  receive,  he,  the  said  Josiah  Ives,  on  the  day  and  year  last 
aforesaid,  in  the  county  aforesaid,  well  knowing  the  said  bale  of 
cotton  and  the  said  barrel  of  tar  to  have  been  theretofore  feloniously 
stolen,  taken,  and  carried  away,  contrary  to  the  form  of  the  statute  in 
such  case,  made  and  provided,  and  against  tho  peace  and  dignity  of 
the  State. 

There  was  a  motion  in  arrest  of  judgment,  which  was  overruled. 
Judgment  against  the  defendant,  from  which  he  appealed  to  the 
Supreme  Court. 

Pearson,  J.  The  defendant  was  convicted  upon  the  fifth  and  sixth 
counts  in  the  bill  of  indictment ;  and  the  case  is  here  upon  a  motion  in 


1024  STATE  V.   IVES.  [CHAP.  XV. 

arrest  of  judgment.  The  fifth  count  was  abandoned  by  the  Attorney 
General,  and  the  question  is  upon  the  sixth  count. 

A  receiver  of  stolen  goods  is  made  an  accessary  by  the  statute  of 
Anne ;  and  it  is  provided,  by  another  section  of  that  statute,  that,  if 
the  principal  felon  escapes  and  is  not  amenable  to  the  process  of  the 
law,  then  such  accessory  may  be  indicted,  as  for  a  misdemeanor.  This 
statute  was  so  construed  as  to  require,  in  the  indictment  for  a  misde- 
meanor, an  averment  that  the  principal  felon  was  not  amenable  to  the 
process  of  the  law.  Foster,  373.  Our  statute,  Rev.  Stat.  c.  34,  §§  53 
and  54,  is  taken  from  the  statute  of  Anne,  and  has  received  a  similar 
construction.  Groff's  case,  1  Mur.  270,  and  see  the  remarks  of  Hen- 
derson, judge,  in  Good's  case,  1  Hawks,  463. 

The  objection  taken  to  the  indictment,  is  the  absence  of  an  averment, 
that  the  principal  felon  is  not  amenable  to  the  process  of  the  law  ;  and 
it  is  insisted  that,  as  the  principal  felon  is  alleged  to  be  some  person 
to  the  jurors  unknown,  it  could  not  be  averred  that  he  had  "  escaped 
and  eluded  the  process  of  the  law,"  in  the  words  used  by  our  statute, 
and  it  was  urged  that  the  statute  did  not  apply  to  a  case  of  the  kind. 

The  Attorney  General  in  reply  took  the  position,  tliat  the  averment 
that  the  principal  felon  was  some  person  to  the  jurors  unknown,  neces- 
sarily included  and  amounted  to  an  averment,  that  he  had  escaped  and 
eluded  the  process  of  the  law,  so  as  not  to  be  amenable  to  justice. 
This  would  seem  to  be  so;  but  we  give  no  definite  opinion,  because 
there  is  another  defect  in  the  count,  which  is  clearly  fatal. 

After  averring  that  the  cotton  and  tar  had  been  stolen  by  some  per- 
son to  the  jurors  unknown,  the  indictment  proceeds :  "Afterwards, 
etc.,  the  said  Josiah  Ives,  the  said  bale  of  cotton  and  the  said  barrel 
of  tar  feloniously  did  have  and  receive,  well  knowing  the  said  bale  of 
cotton  and  barrel  of  tar  to  have  been  theretofore  feloniously  stolen," 
etc.  There  is  no  averment  from  whom  the  defendant  received  the  cot- 
ton and  tar.  We  cannot  imply  that  he  received  them  from  the  person 
who  stole, them.  It  may  be  that  he  received  them  from  some  third 
person ;  and  this  question  is  ])resented :  A.  steals  an  article,  B. 
receives  it,  and  C.  receives  it  from  B.  Does  the  case  fall  within  the 
statute?  We  think  not.  The  statute  obviously  contemplates  a  case 
where  goods  are  received  from  the  person  who  stole  them  ;  he  is 
termed  the  principal  felon.  In  the  case  put  above,  A.  is  the  principal 
felon,  B.  is  his  accessory,  but  C.  is  a  receiver  from  a  receiver,  —  an 
accessory  of  an  accessory.  In  fact,  it  cannot  be  said  whether  A.  or  B. 
is  the  principal  felon  in  regard  to  him. 

The  statute  does  not  provide  for  such  a  case.  It  makes  the  receiver 
an  accessory  ;  and  in  case  the  principal  is  not  amenable  to  the  process 
of  law,  such  accessory  may  be  prosecuted  as  for  a  misdemeanor. 
Consequently  it  is  necessary  to  point  out  the  principal,  and  the  matter 
is  involved  in  the  doctrine  of  "  principal  and  accessory."  This  and 
many  other  omissions  are,  in  England,  remedied  by  the  statutes,  W. 
in.  and  G.  II.,  by  which  "  the  act  of  receiving"  is  made  a  substantive 


SECT.  III.]  REGINA   V.  ADAMS.  1025 

felony,  without  reference  to  the  person  who  stole  or  the  person  from 
whom  the  goods  are  received.  Under  those  statutes,  the  fifth  count, 
which  the  Attorney  General  has  properly  abandoned,  would  be  good ; 
for  the  offence  is  to  "  receive  and  have  "  stolen  goods.  We  have  not 
adopted  those  statutes.  Of  course  the  decisions  and  forms  in  the  ihod- 
ern  English  books  cannot  aid  us.  Duncan's  case,  6  Ired.  98,  presents 
another  instance,  to  provide  for  which  we  have  no  statute. 

Per  Curiam.     Judgment  below  reversed,  and  judgment  arrested.^ 


SECTION  III. 

Guilty  Knowledge. 

REGINA  V.   ADAMS. 
Bristol  Assizes.     1858. 

[Reported  1  Foster  ^  Finlason,  86.] 

Larceny  and  Receiving.  The  woman  was  charged  with  having 
stolen,  and  the  man  (her  husband)  with  having  received,  eleven  mining 
tools.  The  evidence  was  that  the  woman  had  picked  them  up  from  a 
rubbish-heap,  where  they  had  been  placed  (not  as  rubbish),  on  the 
premises  of  the  prosecutor,  and  delivered  them  to  the  man,  telling  him 
how  she  had  obtained  them,  and  that  he  had  sold  them  as  old  iron. 

Crowder,  J.  {to  the  jury)  ^  after  stating  to  them  the  law  as  to  the 
duty  of  a  finder  of  property,  as  applicable  to  the  charge  against  the 
woman,  and  leaving  the  case  as  against  her  with  them :  Before  you 
can  convict  the  man  you  must  be  satisfied  that  he  knew  that  the  goods 
had  been  stolen.  It  may  be  that  he  did  not  know  (upon  the  law  as  I 
have  laid  it  down,  as  to  the  duty  of  the  finder  of  property  to  take 
proper  means  to  find  the  owners)  that  this  was  a  theft.^  If  so,  he 
cannot  b(3  guilty  of  receiving  with  a  guilty  knowledge  of  the  goods 
being  stolen. 

Both  guilty  ;  recommended  to  mercy  ;  fourteen  days'  imprisonment. 

1  See  Rex  v.  Messingham,  1  Moo.  C.  C.  257;  Reg.  v.  Reardon,  L.  R.  1  C.  C.  R.  31. 
—  Ed. 

'^  That  is,  it  is  apprehended  that  the  other  prisoner  had  not  taken  proper  meana 
to  find  the  owner.  —  Rep. 


65 


1026  COMMONWEALTH   V.  LEONAKD.  [CHAP.  XV. 

EEGINA  V.   WHITE. 
"Winchester  Assizes.     1859. 

[Reported  1  Foster  ^  Finlason,  665.] 

Eeceiving.  The  prisoner  was  charged  with  receiving  lead,  the 
property  of  the  Queen,  he  well  knowing  it  to  have  been  stolen. 

Bramwell,  B.  (to  the  jury).  The  knowledge  charged  in  this  indict- 
ment need  not  be  such  knowledge  as  would  be  acquired  if  the  prisoner 
had  actually  seen  the  lead  stolen ;  it  is  sufficient  if  you  think  the  cir- 
cumstances were  such,  accompanying  the  transaction,  as  to  make  the 
prisoner  believe  that  it  had  been  stolen.  Ouilty. 


COMMONWEALTH   v.   LEONARD. 
Supreme  Judicial  Court  of  Massachusetts.     1886. 

[Reported  140  Massachusetts,  473.] 

Indictment  in  three  counts.  The  first  count  alleged  that  on  July  1, 
1883,  certain  articles,  the  goods,  chattels,  and  property  of  the  Boston 
and  Lowell  Railroad  Corporation,  were  feloniously  stolen,  and  that 
the  defendant  afterward,  on  the  same  day,  "  the  goods,  chattels,  and 
property  aforesaid,  so  as  aforesaid  feloniously  stolen,  taken,  and 
carried  away,  feloniously  did  receive  and  have,  and  did  then  and  there 
aid  in  the  concealment  of  the  same,"  he  "  well  knowing  the  said  goods, 
chattels,  and  property  to  have  been  feloniously  stolen,  taken,  and 
carried  away." 

The  second  and  third  counts  were  similar  in  form,  but  the  property 
was  in  each  differently  described  and  at  a  different  date,  namely,  on 
August  1,  1883,  and  September  1,  1883,  respectively.^ 

The  defendant  asked  the  judge  to  instruct  the  jury  as  follows : 
"1.  If  the  jury  are  not  satisfied  bej'ond  a  reasonable  doubt  that  the 
accused  knew  that  the  goods  were  stolen  he  is  entitled  to  an  acquittal. 
2.  To  justify  a  conviction  it  is  not  sufficient  to  show  that  the  accused 
had  a  general  knowledge  of  the  circumstances  under  which  the  goods 
were  stolen,  unless  the  jury  are  also  satisfied  that  he  knew  that  the 
circumstances  were  such  as  constituted  larceny." 

The  judge  refused  to  give  these  instructions,  and  upon  the  matters 
embraced  therein  instructed  the  jury  as  follows  :  — 

"He  must  know  that  the  goods  were  stolen,  but  he  does  not  need  to 
know  the  hour  nor  day  they  were  stolen  ;  he  must  undoubtedly  have 
notice  which  would  put  him  on  his  guard  as  knowledge  that  the  goods 

1  Part  of  the  case,  not  involving  a  question  of  guilty  knowledge,  is  omitted. 


SECT.  III.]  COMMONWEALTH   V.    LEONAKD.  1027 

were  acquired  and  turned  over  to  him  by  a  person  not  taking  them  by 
mistake,  not  by  right,  but  taking  them  as  thieves  take  them,  that  is, 
for  the  purpose  of  defrauding  the  raih-oad  and  cheating  them  out  of 
their  property." 

The  defendant's  counsel  here  suggested  "by  larceny,"  and  the 
judge  gave  this  further  instruction  :  — 

"  By  the  taking  and  carrying  away  of  property  it  is  the  fraudulent 
taking  away  of  the  property  of  another  for  the  purpose  of  converting 
it  to  the  taker's  use  to  deprive  the  owner  of  it.  These  goods  must 
have  been  taken  that  way  and  were  stolen  goods;  they  must  have 
been  taken  by  McCarthy  as  thieves  take  them,  not  by  mistake  or 
accident,  or  by  taking  from  those  who  had  no  right  to  give,  but  taking 
when  he  knew  that  he  had  no  right  to  take  them." 

The  jury  returned  a  verdict  of  guilty  on  the  third  count,  and  of  not 
guilty  on  the  other  counts,  and  the  defendant  alleged  exceptions. 

Field,  J.  The  offence  of  receiving  stolen  property,  knowing  it 
to  have  been  stolen,  must  be  considered  as  distinct  from  the  offence  of 
receiving  embezzled  property  knowing  it  to  have  been  embezzled,  Pub. 
Sts.  c.  203,  §§  48,  51,  although  embezzlement  under  our  statutes  has 
been  held  to  be  a  species  of  larceny.  Commonwealth  v.  Pratt,  132 
Mass.  246.  The  punishments  of  the  two  offences  may  be  different,  as 
the  offence  of  receiving  embezzled  goods  may  be  punished  by  a  fine 
without  imprisonment.  If  the  property  had  actually  been  stolen,  a  be- 
lief on  the  part  of  the  defendant  that  it  had  been  stolen  is  tantamount 
to  knowledge.  If  the  defendant  knew  all  the  facts  and  the  facts  con- 
stituted larceny  as  distinguished  from  embezzlement,  it  would  be  no 
defence  that  the  defendant  thought  that  the  facts  constituted  embez- 
zlement. If  the  defendant  did  not  know  the  facts,  but  believed  from 
the  circumstances  that  the  property  had  been  either  embezzled  oi 
stolen,  and  it  had  been  actually  stolen,  it  was  competent  for  the  jury  to 
find  the  defendant  guilty  of  the  offence  charged.  The  second  request 
for  instructions  was  therefore  rightly  refused. 

The  first  request  for  instructions  states  the  law  with  substantial  cor 
rectness.     It  is  contended  that  the  instructions  given  on  this  point,, 
rightly  construed,  are  the  same  in  effect.     We  find  it  unnecessary  to 
decide  whether  the  case  called  for  a  more  careful  definition  of  larceny 
as  distinguished  from  embezzlement  or  from  wilful  trespass. 

Exceptions  sustained.^ 

1  See  Reg.  v.  Rymes,  3  C.  &  K.  326.  —  Ed. 


1028  BUKGLART.  [CHAP.  XVI. 


CHAPTER  XVI. 
CRIMES  AGAINST  THE  DWELLIXG-HOUSE. 


SECTION   I. 
Burglary. 


Staunford,  Pleas  of  the  Crown,  30  a.  Burglars  are  those  who  feloni- 
ously in  time  of  peace  break  houses,  churches,  walls,  towers,  or  gates, 
for  which  burglary  they  shall  be  hanged,  though  they  took  nothing  away. 
Uipatet  tit.  Coron.  in  Fitz.  p.  264,  p.  185,  &  p.  178.  But  3-et  they  ought 
to  have  felonious  intent  to  rob  or  kill  or  do  other  felony.  For  if  a  man 
be  indicted  quod  domum  I.  S.  felonice  fregit  ad  ipsum  i^erherayidum^ 
that  is  only  trespass,  for  by  this  his  intent  in  the  breaking  is  made 
known.  It  is  otherwise  if  it  be  domum  fregit  ad  ipsum  interjiciendum  ^ 
&c.  But  if  a  man  be  indicted  quod  clausum  I.  S.  felonice  fregit  ad 
ipsum  interficiendum^  that  is  not  burglary,  per  Hankford  &  Hill,  M. 
13  H.  4,  f.  7.  The  same  is  law  if  he  break  the  house  and  do  not  enter 
into  it.  Et  nota  that  for  anything  contained  in  those  books,  burglar}' 
may  be  done  as  well  by  da}-  as  b}-  night,  &c.  But  the  law  is  not  so 
taken,  for  all  the  indictments  for  burglar}-  are  quod  noctanter  fregit^ 
&e.  Vide  Britton  for  burglars,  fo.  17;  for  I  do  not  remember  that  I 
have  read  anything  of  it  in  Bracton,  save  that  he  speaks  in  one  place 
in  this  way,  scil.  "  Si  qicis  homsoken^  quae  dicitnr  invasio  domtis  contra 
pacem,,  in  domo  suo  defenderit  &  invasor  occisics  fiierit  impersequutus, 
&  inultus  remanebit,  dum  tameti  ille  qui  invasus  est,  aliter  se  defendere 
nan  potuit.  Quia  dicitur  non  est  dignus  pace  qui  non  vult  servare 
earn"  &c. 

1  Hawk.  P.  C.  ch.  17,  Sects.  1,  2,  3,  11,  18,  21.  Burglary  is  a 
felony  at  the  Common  Law,  in  breaking  and  entering  the  mansion- 
house  of  another,  or  (as  some  say)  the  walls  or  gates  of  a  walled  town 
in  the  night,  to  the  intent  to  commit  some  felony  within  the  same, 
whether  the  felonious  intent  be  executed  or  not. 

There  are  some  opinions,  that  burglary  may  be  committed  at  any 
time  after  sun-set  and  before  sun-rising ;  but  it  seems  the  much  better 


SECT.  I.]  ■      ANONYMOUS.  1029 

opinion  tliat  the  word  noctarUcr,  which  is  precisely  necessar}-  in  every 
indictment  for  this  offence,  cannot  be  satisfied  in  a  legal  sense,  if  it 
aijpear  npon  the  evidence,  that  there  was  so  much  daylight  at  the  time 
that  a  man's  countenance  might  be  discerned  thereby.^ 

Notwithstanding  some  loose  opinions  to  the  contrary,  there  seems  to 
be  no  good  cause  to  doubt  but  that  both  [an  actual  entry  and  breaking] 
are  required  to  complete  this  offence  ;  for  the  viord&f regit  and  intracit 
being  both  of  them  precisely  necessary  in  the  indictment,  both  must  be 
satisfied.  And  a  fortiori  therefore  there  can  be  no  burglary  where 
there  is  neither  of  them  ;  as  if  on  a  bare  assault  upon  a  house,  the 
owner  fling  out  his  money. 

Any  the  least  entry  either  with  the  whole,  or  but  with  part  of  the 
body,  or  with  any  instrument,  or  weapon,  will  satisfy  the  word  intravit 
in  an  indictment  of  burglary  ;  as  if  one  do  but  put  his  foot  over  a 
tlireshold,  or  his  hand  or  a  hook  or  pistol  within  a  window,  or  turn  the 
key  of  a  door  which  is  locked  on  the  inside,  or  discharge  a  loaded  gun 
into  a  house,  &c. 

A  house  wherein  a  man  dwells  but  for  part  of  the  year  ....  may  be 
called  his  dwelling-house  ;  and  will  sufficiently  satisfy  the  words  domus 
mansionalis  in  the  indictment,  whether  any  person  were  actually 
therein  or  not,  at  the  time  of  the  offence. 

All  out-buildings,  as  barns,  stables,  dairj'-houses,  &c.,  adjoining  to 
a  house,  are  looked  upon  as  part  thereof,  and  consequently  burglary 
may  be  committed  in  them. 


ANONYMOUS. 

Lent   Assizes.     1554. 

[Reported  Dyer,  99a,  pi.  58.] 

One  was  indicted  for  that  he  burglariously  broke  open  a  church  in 
the  night  in  order  to  destroy  and  steal  the  goods  of  the  parishioners 
therein  being,  but  took  nothing  awaj-.  And  Bromeley,  J.,  held  clearly 
that  this  is  burglary  ;  but  he  said  that  it  ought  to  be  broke  and  entered. 

^  In  Com.  V.  Chevalier,  7  Dane  Abr.  134  (1794)  the  jury  found  that  a  brealimg 
was  not  in  the  night  which  took  place  at  eighteen  minutes  after  two  o'clock  on  the 
morning  of  June  27th. 

Mass.  Pub.  Stats,  ch.  214,  sect.  15.  When  an  offence  is  alleged  to  have  been  com- 
mitted in  the  night-time,  the  time  called  night-time  shall  be  deemed  to  be  the  time 
between  one  hour  after  the  sun-setting  on  one  day  and  one  hour  before  sun-rising  od 
the  next  day. 


1030  ANONYMOUS.  [CHAP.  XVI. 

RESOLUTION. 
All  the  Judges  of  England.     1584. 

[Reported  Anderson,  114.] 

All  the  justices  assembled  at  Serjeants'  Inn  agreed  that  if  one  break 
the  glass  in  a  window  in  the  dwelling-house  of  any  one,  and  there  with 
hooks  draw  carpets  out,  and  feloniously  steal  them,  it  is  burglary  if  it 
be  done  at  night,  though  the  man  who  does  it  do  not  enter  or  break  the 
house  otherwise ;  and  this  case  was  put  for  a  purpose,  in  order  that  the 
justices  of  Assize  in  the  county  of  Warwick  might  know  the  law  before 
the  Assizes,  where  this  case  was  to  come  in  question  for  an  offence  com- 
mitted at  Erdeburgh  in  said  count}-.  At  this  time  the  following  case 
was  also  put  b}'  the  said  justices,  that  thieves  in  the  night  come  to  a 
dwelling,  and  some  one  within  comes  and  opens  the  door,  and  when  it  is 
open,  one  of  the  thieves  intending  to  kill  the  man  shoots  at  him  witii  a 
gun,  the  bullet  from  which  misses  the  man  and  breaks  the  wall  on  the 
other  side  of  the  house.  And  it  was  agreed  by  all  that  this  is  no  burg- 
lary ;  and  this  also  was  in  order  to  know  the  law  in  this  case,  which 
happened  in  the  county'  of  Derby  where  they  were  also  justices.  And 
as  bearing  upon  these  cases  an  actual  case  was  put,  which  was  this, 
scil. :  In  the  night  one  who  intended  to  kill  another  in  a  house  broke  a 
hole  in  the  wall  of  the  dwelling,  and  perceiving  where  the  person  was, 
shot  at  him  through  the  hole  with  a  gun  and  missed  the  person,  which 
was  adjudged  as  burglary  :  so  where  one  broke  a  hole  in  the  wall  and 
seeing  a  man  with  a  purse  of  money  hanging  from  his  girdle  coming  by 
the  hole,  snatched  at  the  purse  and  took  it,  this  too  was  agreed  to  be 
burglary ;  which  happened  in  Essex.  And  then  it  was  remembered 
that  one  went  to  the  window  of  Mr.  Cave's  study  in  the  county  of 
Leicester,  and  perceiving  a  casket  with  mone}'  in  it,  drew  it  to  the 
window  and  took  money  out  of  it,  and  for  this  he  was  hanged  in 
the  county  of  Leicester.  For  in  all  these  cases  of  burglar^'  there  is  a 
breaking  of  the  house  to  commit  felony  in  the  night ;  which  makes  the 
offence  burglary.  But  in  the  preceding  case  of  shooting  with  the  gun 
into  the  door  and  breaking  the  wall  with  the  bullet,  it  is  not  a  break- 
ing of  the  house  with  intent  to  commit  felony ;  wherefore  it  is  not 
burglary. 


ANONYMOUS. 
Crown  Case  Reserved.     1594. 

[Reported  il/oore,  660,   pi.  903.] 

It  was   resolved   by   all   the  justices    at   Serjeants'  Inn,   that   the 
breaking  of  a  dwelling-house  at  night  with  intent  to  rob  or  kill  a  man  is 


SECT.  1.]  -  LE    iViOTT'S    CASE.  1031 

burglary,  though  no  one  be  in  the  house.  And  if  one  has  two  dwelling- 
houses  where  lie  lives  in  turn,  if  a  thief  break  at  night  the  house  from 
which  he  is  absent  it  is  burglary,  and  all  the  old  precedents  of  indict- 
ments for  burglary  are  noctanter  etfelonice,  without  allegation  of  any 
person  put  in  fear  of  death.  And  the  reason  of  the  old  precedents 
varying  from  those  of  modern  times  by  mentioning  that  one  was  in  fear 
of  death  is  because  the  Statute  23  H.  8  takes  away  clergy  from  a 
burglar  where  any  one  is  put  in  fear  of  death,  but  not  otherwise. 


KEX  V.  FIDLING. 
King's  Bench.     1607. 

{Manuscript  }'\ 

One  Fidling  was  indicted  for  burglary  ;  and  the  indictment  was  that 
he  the  mansion  house  of  Afelonie  f regit ^  and  him  and  all  his  family 
put  in  terror  of  their  lives,  with  intention  the  said  A  de  bonis  et  pecu- 
niis  spoliandis.  Exception  was  taken  to  this  indictment,  because  it 
said  ou\y /regit  and  not  ititravit,  according  to  the  opinion  of  Bromeley 
in  1  Mary,  Dy.  fo.  99,  pi.  58.  But  jje?*  Curiam;  The  indictment  is 
good  enough  ;  for  if  he  breaks  the  house  feloniously  with  intent  ut 
supra  it  is  burglary,  although  he  does  not  enter. 

It  was  also  objected  that  intentione  ad  spoliandum  shall  be  taken 
only  as  a  trespass ;  but  per  Curiam^  felony  ad  spoliandum  shall  be 
taken  to  be  a  felony. 


LE  MOTT'S  CASE. 
About  1650. 

[Reported  Kelyng,  42.] 

At  the  Sessions  I  inquired  of  Le  Mott's  Case,  which  was  adjudged 
in  the  time  of  the  late  troubles,  and  my  Brother  Wyld  told  me  that  the 
case  was  this:  That  thieves  came  with  intent  to  rob  him,  and  finding 
the  door  locked  up,  pretended  they  came  to  speak  with  him,  and  there- 
upon a  maid-servant  opened  the  door,  and  they  came  in  and  robbed 
him,  and  this  being  in  the  night-time,  this  was  adjudged  burglary  and 
the  persons  hanged  ;  for  their  intention  being  to  rob,  and  getting  the 
door  open  by  a  false  pretence,  this  was  ^?^  fraudem  legis,  and  so  they 
were  guilty  of  burglary  though  they  did  not  actually  break  the  house, 
for  this  was  in  law  an  actual  breaking,  being  obtained  by  fraud  to  have 

1  This  case,  though  never  before  printed,  is  cited  in  Vaillant's  Djer.  99  note.— Ed. 


2032  KEX  V.   LYONS.  [chap.  XVI. 

the  door  opened ;  as  if  men  pretend  a  warrant  to  a  constable,  and 
bring  him  along  with  them,  and  under  that  pretence  rob  the  house,  if  it 
be  in  the  night  this  is  burglary.^ 


EEX   u.    GRAY. 
Old  Bailey.     1722. 

[Reported  I  Strange,  481.] 

One  of  the  servants  in  the  house  opened  his  lad3''s  chamber  door 
(which  was  fastened  with  a  brass  bolt)  with  design  to  commit  a  rape ; 
and  King,  C  J.,  ruled  it  to  be  burglary,  and  the  defendant  was  con- 
victed and  transported. 


REX  V.   LYONS. 
Crown  Case  Reserved.     1778. 

[Reported  Leach  [4lh  ed.),  185.] 

At  the  Old  Bailey  in  January  Session,  1778,  Lyon  Lj'ons  and 
Thomas  Miller  were  tried  before  Mr.  Serjeant  Glynn,  Recorder,  for 
burglariously  breaking  and  entering  the  dwelling-house  of  Edward 
Smith,  with  intention  to  commit  a  felony. 

The  jury  found  a  general  verdict  guilty,  subject  to  the  opinion  of  the 
judges  upon  the  following  case:  — 

Mr.  Smith  had  some  time  before  purchased  this  house  with  an  inten- 
tion to  reside  in  it,  and  had  moved  some  of  his  effects  to  the  value  of 
about  ten  pounds,  into  the  house  ;  but  at  the  time  the  offence  was  sup- 
posed to  have  been  committed,  it  was  under  the  care  of  a  carpenter, 
for  the  purpose  of  being  repaired ;  and  Mr.  Smith  had  not  himself 
entered  into  possession  of  any  part  of  it,  nor  did  any  part  of  his 
family,  or  any  person  whatever  sleep  therein.  The  prisoners  broke  and 
entered  this  house  in  the  night-time,  with  an  intention  to  steal ;  but 
whether  it  can  in  construction  of  law  be  considered  the  dwelling-house 
of  Edward  Smith  they  submitted,  &c. 

This  case  was  made  upon  the  objection  of  Mr.  Hoicarth,  the  pris- 
oner's Counsel ;  and  a  copy  of  it  was  delivered  to  each  of  the  judges 
named  in  the  margin.^ 

1  Ace.  Farr's  Case,  Kel.  43  ;  Com.  v.  Lowrey,  158  Mass.  18,  32  N.  E.  940;  Johnston 
V.  Com.,  85  Pa.  54. —  Ed. 

2  Lord  Mansfield,  Dk  Grey,  C.  J.,  Skinner,  C.  B.,  Blackstone,  Asiihdrst, 
Nares,  Gould,  Willes,  JJ.,  Perryn,  Hotham,  Eyre,  BB. 


SECT.  I.]  EEX  V.   DAVIES.  1033 

The  Judges  in  Easter  Term,  1778,  were  of  opinion,  Tliat  a  house  so 
situated  could  not  be  considered  as  a  dwelling-liouse,  it  being  com- 
pletely uninhabited  ;  and  therefore  there  could  be  no  burglary. 

The  judgment  against  the  prisoners  was  accordingly  arrested. 


JOHNSON'S  CASE. 
Crown  Case  Reserved.     1786. 

[Reported  2  East  P.  C.  488.] 

Though  if  a  thief  enter  a  dwelling-house  in  the  night-time  through 
the  outer  door  being  left  open,  or  by  an  open  window ;  yet  if  when 
within  the  house  he  turn  the  key  of  or  unlatch  a  chamber-door  with 
intent  to  commit  felony  this  is  burglary  :  and  so  it  was  adjudged  on  a 
special  verdict  at  Newgate,  1672.  The  same  was  lately  ruled  in 
Johnson's  Case  by  all  the  judges ;  where  the  prisoner  entered  at  a 
back  door  of  the  house  of  William  Hughes  at  Newington  in  Surrey, 
which  had^been  left  open  by  the  family ;  and  afterwards  broke  open  an 
inner  door,  and  stole  goods  out  of  the  room ;  and  then  unbolted  the 
Btreet  door  on  the  inside  and  went  out. 


REX  V.  DAVIES. 
Crown  Case  Reserved.     1800. 

[Reported  Leach    {4th  ed.),  876.] 

At  the  Old  Bailey  in  June  Session,  1800,  John  Davies  was  indicted 
before  Mr.  Baron  Chambre,  present  Mr.  Justice  Grose  and  the 
Recorder,  for  stealing  a  quantity  of  pans,  kettles,  candlesticks, 
&c.,  above  the  value  of  40s.,  the  property  of  Thomas  Pearce  in  his 
dwelling-house. 

The  larceny  was  clearly  proved,  but  it  appeared  that  Mr.  Pearce  was 
a  brewer  in  considerable  business  living  in  Milbank  Street,  and  owner 
of  the  "  Star  and  Garter"  pubUc-house  in  Palace-yard,  in  which  house 
the  larceny  was  committed.  The  house  was  at  this  time  shut  up,  and 
in  the  day-time  totally  uninhabited  ;  but  Mr.  Pearce's  man  was  put  to 
sleep  in  it  at  night  for  the  protection  of  the  goods  that  were  in  the 
house,  until  some  other  publican  should  take  possession  of  it.  It  had 
remained  in  this  state  about  six  weeks  previous  to  the  robber}',  during 
which  time  it  had  been  let  to  a  publican  who  had  not  taken  possession 
of  it.  There  were  at  this  time  in  the  house  sixteen  or  seventeen  beds, 
and  a  variety  of  chairs,  tables,  and  other  articles  of  furniture,  which 


1034  COMMONWEALTH  V.   STEWARD.  [CHAP.  XYI. 

Mr.  Pearce  had  purchased  of  the  former  tenant,  with  a  view  to  accom- 
modate the  person  to  whom  he  might  let  it,  but  with  no  intention  of 
residing  in  the  house  himself,  either  personally  or  by  means  of  any  of 
his  servants. 

The  counsel  for  the  prisoner  submitted  to  the  court  that  this  house 
could  not  be  considered  as  the  dwelling-house  of  Pearce,  and  that 
therefore  the  prisoner  ought  to  be  acquitted  of  the  capital  part  of  the 
offence,  and  cited  the  cases  stated  in  the  margin. ^  The  case,  however, 
was  left  with  the  jury,  and  they  found  the  prisoner  guilty  of  the  whole 
charge,  but  the  point  was  saved  for  the  consideration  of  the  judges. 

The  Judges,  in  Trinity  Term,  1800,  were  of  opinion  that  as  it 
clearly  appeared  by  the  evidence  that  Mr.  Pearce  had  no  intention 
whatever  to  reside  in  this  house  either  by  himself  or  his  servants,  it 
could  not  in  contemplation  of  law  be  considered  as  his  dwelling-house, 
and  that  not  being  such  a  dwelling-house  wherein  burglary  might  be 
committed,  the  capital  part  of  the  charge  under  12  Ann.  c.  1,  was 
done  away. 

The  prisoner  accordingly  received  his  Majesty's  pardon  on  condition 
of  transportation. 


COMMONWEALTH   v.   STEWARD. 
Supreme  Judicial  Court  of  Massachusetts.     1789 

[Reported  1  Dane's  Ahr.  136.] 

Steward  was  indicted  for  burglary  in  the  house  of  John  Fisk.  The 
court  held  that  it  is  a  burglarious  breaking  to  open  a  door  when  latched 
and  shut,  or  to  push  up  a  window  when  shut  down,  though  not 
fastened  ;  these  being  in  their  shut  position.  But  if  a  window  be  a 
little  pushed  up,  or  a  door  a  little  opened,  &c.,  so  that  one  passing  hy 
may  see  the  owner  has  not  properly  shut  his  house,  it  is  not  a  l)urglari- 
ous  breaking  to  enter,  though  a  further  pushing  up  of  the  window  or 
opening  of  the  door  be  necessaiy  for  the  person  to  enter ;  but  that  it  is 
not  customary  for  men,  nor  necessary  always,  to  have  all  the  glass  of 
their  windows  whole,  or  the  joints  of  their  doors,  windows,  «&c.,  exact.^ 

Attorney -General^  for  tlie  State. 

Bradbury^  for  the  defendant. 

'  Harris's  Case,  Leach,  701  ;  Thompson's  Case,  Leach,  771  ;  Fuller's  Case,  Leach, 
186  n. 
*  Ace.  Rex  V.  March,  1  Moo.  C.  C.  178.    See  Rex  v.  Lewis,  2  C.  &  P.  628.  — Ed. 


SECT.  I.]  COMMONWEALTH   V.   STEPHENSON.  1035 


COMMONWEALTH   v.   STEPHENSON. 

Supreme  Judicial  Court  of  Massachusetts.     1829. 

[Reported  8  Pickering,  354. j 

Indictment  for  burglary.  The  evidence  as  to  breaking  was,  tbat  in 
the  evening  of  May  22  the  witness  fastened  the  outer  door  of  the  dwell- 
ing-house by  turning  a  button  down  upon  the  latch,  and  that  about  day- 
break in  the  morning  he  found  the  door  open,  and  also  that  the  network 
of  the  buttery  window  had  been  cut  away  and  torn  down.  The  netting 
was  made  of  double  twine,  and  was  fastened  by  nailing  it  on  each  side, 
and  at  the  top  and  bottom  of  the  window,  for  the  purpose  of  letting  in 
the  air  and  keeping  out  cats  and  other  small  animals.  Within  the  net- 
work there  was  a  glass  window,  which  had  not  been  shut.  Putnam,  J., 
instructed  the  jury  that  if  the  defendants  broke,  cut,  or  tore  away  the 
net  so  fastened,  it  was  in  law  a  breaking  of  the  dwelling-house.  The 
defendants,  being  found  guilty,  moved  for  a  new  trial  because  the  fore- 
going instruction  was  wrong. 

Bates  and  G.  Bliss,  Junior,  for  the  defendants.  Entering  by  an 
open  window  will  not  sustain  an  indictment  for  burglary  :   2  Russ.  901  ; 

1  Hawk.  P.  C.  c.  38,  §§  4,  5  ;  4  Bl.  Com.  226;  Callon's  Case,  cited  in 

2  Russ.  903  ;  and  the  circumstance  that  a  netting  was  stretched  across 
the  window  in  the  present  case  is  immaterial,  as  this  netting  was  put 
up  onlj'  as  a  securit}'  against  the  entr^'  of  small  animals.  The  window 
was  the  natural  protection  against  an  entry  b}'  man.  To  constitute  a 
breaking,  the  thing  broken  must  be  a  part  of  the  house.  1  Hawk.  P.  C. 
c.  38,  §§4,5;  Foster,  108 ;  1  Hale,  552 ;  2  Stark.  Ev.  320.  This  net- 
ting was  not  even  a  fixture.  Beck  v.  Rebow,  1  P.  Wms.  94  ;  Gale  v. 
AVard,  14  Mass.  356;  Whiting  v.  Brastow,  4  Pick.  310;  Com.  v. 
Trimmer,  1  Mass.  476.^ 

Davis  (Solicitor-General)  cited  3  Chit.  Crim.  Law,  1093 ;  1  Hale, 
552  ;  East  P.  C.  487;  4  Bl.  Com.  226. 

Parker,  C.  J.,  delivered  the  opinion  of  the  court.  The  question  in 
this  case  is,  whether  there  was  a  breaking  or  not.  The  lifting  a  latch 
and  opening  the  door,  though  not  bolted  or  locked ;  the  shoving  up  a 
window,  though  not  fastened  ;  the  getting  down  a  chimney,  and  vari- 
ous other  acts  done  to  effect  an  entry,  are  held  to  be  a  breaking.  The 
offence  consists  in  violating  the  common  security'  of  a  dwelling-house 
in  the  night-time,  for  the  purpose  of  committing  a  felon}'.  It  makes  no 
difference  whether  the  door  is  barred  and  bolted,  or  the  window  secured, 
or  not ;  it  is  enough  that  the  house  is  secured  in  the  ordinary  way  ;  so 
that  b}'  the  carelessness  of  the  owner  in  leaving  the  door  or  window 
open,  the  party  accused  of  burglary  be  not  tempted  to  enter.  Shutting 
the  window  blinds  and  leaving  the  windows  open  for  air  is  a  common 

1  Part  of  the  argument  is  omitted. 


2036  MASON   V.   PEOPLE.  [CHAP.  XVI. 

mode  of  closing  a  house  in  the  warm  season  ;  if  the  blinds  are  forced, 
it  is  a  break  inc. 

Tiie  objection  is,  that  the  lattice-work  of  the  dairy  window  was  of 
twine  only.  Suppose  it  were  of  wire  or  thin  slats  of  wood,  would  there 
be  any  difference?  This  network  was  nailed  down  on  all  sides  ;  it  was 
torn  away  by  the  defendants,  and  they  entered  the  breach.  This  is 
quite  sufficient  to  constitute  a  burglarious  breaking  and  entry. 

Motion  for  a  new  trial  overruled. 


MASON  V.  PEOPLE. 
Court  of  Appeals  of  New  York.      1863. 

[Reported  26  New  York,  200.] 

Error  to  the  Supreme  Court.  The  plaintiff  in  error  was  indicted  in 
the  New  York  General  Sessions.  The  first  count  charged  him  with 
feloniously  and  burglariously  breaking  and  entering,  in  the  daytime, 
the  dwelling-house  of  Christopher  Thomas,  "  with  intent  to  commit 
some  crime  therein,"  but  not  specifying  what  crime.  The  second  count 
charged  a  larceny,  in  the  dwelling-house  before-mentioned,  of  a  gold 
ring,  the  property  of  Minna  Thomas.  The  evidence  was  that  Thomas 
and  his  wife  Minna  occupied  three  rooms  in  what  is  known  as  a  tene- 
ment house,  for  which  they  paid  rent  montlily.  Three  other  families 
occupied  different  apartments  of  the  same  house,  one  of  these  fumilies 
having  rooms  on  the  same  floor  with  Thomas.  There  was  one  common 
door  of  entrance  into  the  house,  which  opened  from  the  street  into  the 
first  floor  or  story,  through  which  all  the  tenants  passed  to  their  respec- 
tive apartments.  AVheu  the  offence  was  committed  the  front  door  was 
open,  the  prisoner  breaking  only  the  door  of  Mrs.  Thomas'  room, 
which  she  had  left  locked.  The  prisoner's  counsel  asked  the  court 
to  charge  that  breaking  an  inner  door  in  the  daytime  with  intent  to 
steal  is  not  a  burglary.  He  maintained  that  the  outer  door  of  the 
house  was  the  outer  door  of  every  tenant  living  within  ;  that  the  crim- 
inal breaking  of  that  door  would  have  been  a  burglary  of  the  dwelling- 
house  of  the  tenant  whose  property  the  offender  intended  to  steal ;  and 
tliat,  as  a  consequence,  the  breaking  of  the  inner  door  was  not,  because 
a  double  burglar}-  could  not  be  committed  by  breaking  first  the  street 
door  and  then  the  inner.  The  court  refused  to  charge  as  requested, 
and  the  prisoner  took  an  exception.  He  was  convicted  of  burglar}-  in 
the  third  degree,  and  the  judgment  having  been  affirmed  by  the  Supreme 
Court  in  the  first  district,  he  appealed  to  this  court. 

*S'.  JI.  iSteicart,  for  the  plaintiff  in  error. 

.4.  Oahey  Hall,  for  the  People. 


SECT.  I.]  QUINN   V.   PEOPLE.  1037 

Emott,  J.^  As  to  the  objection  taken  at  the  trial  that  burglary  could 
not  be  committed  b\'  breaking  and  entering  apartments  in  what  is 
known  in  cities  as  a  tenement  house,  a  building  occupied  separate!}-  b}^ 
several  families,  each  having  distinct  apartments  opening  into  a  com- 
mon hall,  and  thus  communicating  with  the  street,  it  has,  in  my  judg- 
ment, no  foundation.  Any  and  every  settled  habitation  of  a  man  and  his 
famil}'  is  his  house  or  his  mansion,  in  respect  to  its  burglarious  entry. 
It  was  so  held  before  Lord  Hale's  time  as  to  chambers  in  colleges  and 
inns  of  court,  and  even  as  to  a  chamber  hired  bj'  A.  in  the  house  of  B., 
for  lodging  for  a  specified  time.  Hale  PI.  Cor.,  I.,  p.  556.  Serjeant 
Hawkins  (Cr.  Law,  vol.  i.  p.  163)  gives  the  same  rule  as  to  tenement 
or  lodging  houses,  except  that  he  seems  to  suppose  that  a  difference 
might  arise  when  the  owner  of  the  house  himself  lived  in  it.  But  such 
an  exception  would  only  lie  where  the  other  inmates  were  lodgers  with 
the  owner,  and  not  proprietors  of  distinct  tenements  separately  hired 
and  occupied  for  a  longer  or  shorter  time,  with  access  either  separately 
or  jointly  to  the  street.  Wherever  a  building  is  severed  by  lease  into 
distinct  habitations,  each  becomes  the  mansion  or  dwelling-house  of 
the  lessee  thereof,  and  is  entitled  to  all  the  privileges  of  an  individual 
dwelling.  The  case  of  the  People  v.  Bush,  3  Park.  Cr.  R.  556,  was 
precisely  like  the  one  at  bar,  and  it  was  there  held  by  three  judges  of 
the  Supreme  Court,  of  whom  the  one  pronouncing  the  opinion  was  a 
learned  and  experienced  criminal  lawj^er,  that  a  room  or  rooms  in  a 
tenement  house,  rented  to  separate  families  with  a  door  and  entrj-  com- 
mon to  all,  constituted  each  the  dwelling-house  of  the  particular  occu- 
pant in  the  sense  of  the  law.  Such  we  understand  to  be  the  well-settled 
rule. 

The  judgment  of  the  Supreme  Court  affirming  that  of  the  Court  of 
Sessions  was  right,  and  must  be  affirmed  in  this  court. 

Judgment  affirmed. 


QUINN  V.    PEOPLE. 
Court  of  Appeals  of  New  York.     1878. 

[Reported  71  New  York,  561.] 
FoLGER,  J.^  The  plaintiff  in  error  was  indicted  of  the  crime  of  burg- 
lary in  the  first  degree,  under  the  section  of  the  Revised  Statutes 
defining  that  crime.  2  R.  S.  p.  668,  §  10,  subd.  1.  The  crime,  as 
there  defined,  consists  in  breaking  into,  and  entering  in  the  night-time, 
in  the  manner  there  specified,  the  dwelling-house  of  another,  in  which 
there  is  at  the  time  some  human  being,  with  the  intent  to  commit  some 
crime  therein.   The  evidence  given  upon  the  trial  showed  clearly  enough 

*  Part  of  the  opinion  is  omitted. 


2038  QUINN   V.   PEOPLE.  [CHAP.  XVI. 

the  breaking  and  entering,  and  tlie  criminal  intent.  The  questions 
mooted  in  this  court  are,  whether  it  is  legally  proper,  in  an  indictment 
for  burglary  of  a  dwelliug-house,  to  aver  the  ownership  of  the  building 
in  a  partnership,  and  whether  the  proof  showed  that  the  room  entered 
was  a  dwelling-house  within  the  intent  of  the  statute.  As  to  the  first 
question :  The  indictment  averred  the  breaking  and  entering  into  the 
dwelling-house  of  Frederick  Kohnsen  and  John  F.  Lubkin,  being  co- 
partners in  business  under  the  firm-name  and  style  of  Kohnsen  & 
Lubkin.  The  authorities  are  numerous  enough  and  clear,  that  the 
ownership  of  the  dwelling-house  may  be  laid  in  the  indictment  to  be  in 
the  members  of  a  copartnership,  when  the  facts  of  the  case  warrant  it. 
In  Rex  V.  Athea,  R.  &  M.  C.  C.  R.  329,  the  indictment  averred  the 
stealing  in  the  dwelling-house  of  Hailing  and  others.  It  appeared  that 
Hailing,  Pierce  &  Stone  carried  on  business  on  the  premises  in  which 
the  offence  was  committed.  Pierce  lived  in  the  house,  which  was  the 
joint  property  of  the  firm.  The  other  partners  resided  elsewhere.  It 
was  held,  upon  a  case  reserved,  that  the  dwelling-house  was  properly 
laid  as  that  of  all  the  partners.  See,  also,  Rex  v.  Stockton  & 
Edwards,  2  Taunt.  339  ;  2  Leach,  1015  ;  s.  c.  sub  7iom.  Rex  v.  Stock 
et  al,  Russ.  &  R}.,  185 ;  Rex  v.  Hawkins,  Foster's  Cr.  Law,  38 ;  Rex 
V.  Jenkins,  Russ.  &  R}'.  244  ;  Saxton's  Case,  2  Ilarr.  533. 

The  facts  of  the  case  in  hand  are  meagrely  presented  upon  the  error- 
book,  but  we  gather  from  it,  and  from  the  concessions  made  upon  the 
points  and  on  the  oral  argument,  that  Kohnsen  and  Lubkin,  the  per- 
sons named  in  the  indictment,  were  copartners  in  trade  ;  and,  as  such, 
held  and  occupied  the  buildings,  into  one  room  of  which  the  burglarious 
entry  was  made ;  that  the  lower  or  first  stories  of  the  buildings  were 
used  for  the  purposes  of  their  business,  and  opened  into  each  other ; 
that  in  the  upper  rooms  one  only  of  the  partners  and  some  other  per- 
sons lived,  and  were  present  on  the  night  of  the  burglary.  This  slate 
of  facts  is  in  accord  with  those  presented  in  the  cases  above  cited.  We 
are  of  opinion  that  the  first  question  presented  must  be  resolved  against 
the  plaintiff  in  error.  The  ownership  of  the  buildings  was  properly  laid 
by  the  indictment  in  Kohnsen  &  Lubkin.  The  ownershi})  rcn^ained  with 
them  ;  the  actual  possession  of  the  portions  of  the  buildings  used  for 
business  was  in  them,  and  the  possession  of  part  of  the  portion  of  the 
buildings  used  to  live  in  was  in  them,  by  the  actual  possession  and 
occupation  of  that  part  by  Kohnsen.  They  had  not  given  such  an 
interest  to  other  persons  in  the  whole  or  in  parts  of  the  buildings  as  to 
constitute  an  ownership  in  such  other  persons.  2  East,  P.  C.  C.  15, 
§  18,  p.  502.  The  cases  are  somewhat  in  conflict  upon  this  point,  it 
is  true,  and  are  not  easily  reconciled  or  distinguished  ;  see  Rex  v. 
Margetts,  et  al.^  2  Leach,  930  ;  but  it  is  plain  that  here  the  partners,  as 
such,  had  the  ultimate  control  and  right  of  possession  of  the  whole 
buildings,  and  the  actual  possession  of  the  shop  entered,  and  of  the 
sleeping-room  above  it,  thus  bringing  the  case  within  several  decisions. 

As  to  the  second  question:  In  addition  to  the  facts  already  stated, 


SECT.  I.]  QUINN  V.    PEOPLE.  1039 

it  is  needed  onl}'  to  note  that  there  was  an  internal  communication 
between  the  two  stores,  in  the  lower  stories  of  the  buildings,  but  none 
between  them  and  the  upper  rooms,  in  which  one  of  the  partners 
and  other  persons  lived.  The  room  into  which  the  plaintiff  in  error 
broke  was  used  for  business  purposes  only,  but  it  was  within  the  same 
four  outer  walls,  and  under  the  same  roof  as  the  other  rooms  of  the 
buildings.  To  pass  from  the  rooms  used  for  business  purposes  to  the 
rooms  used  for  living  in,  it  was  necessar}-  to  go  out  of  doors  into  a 
3'ard  fenced  in,  and  from  thence  up  stairs.  The  unlawful  entering  of 
the  plaintiff  in  error  was  into  one  of  the  lower  rooms  used  for  trade, 
and  into  that  only.  The  point  made  is,  that  as  there  was  no  internal 
communication  from  that  room  to  the  rooms  used  for  dwellings,  and  as 
that  room  was  not  necessar}'  for  the  dwelling-rooms,  there  was  not  a 
breaking  into  a  dwelling-house,  and  hence  the  act  was  not  burglar^'  in 
the  first  degree  as  defined  b}-  the  Revised  Statutes  as  cited  above.  In 
considering  this  point,  I  will  first  sa}'  that  the  definition  of  the  crime  of 
burglary  in  the  first  degree,  given  by  the  Eevised  Statutes,  does  not, 
so  far  as  this  question  is  concerned,  materially  diflfer  from  the  defini- 
tion of  the  crime  of  burglar^'  as  given  at  common  law,  to  wit,  "  a 
breaking  and  entering  the  mansion  house  of  another  in  the  night,  with 
intent  to  commit  some  felony  within  the  same."  ...  2  Russ.  on  Cr. 
p.  1,  §  *  785.  It  will,  therefore,  throw  light  upon  this  question  to 
ascertain  what  buildings  or  rooms  were,  at  common  law,  held  to  be 
dwelling-houses  or  a  part  thereof,  so  as  to  be  the  subject  of  burglary. 
P^or,  so  far  as  the  Revised  Statutes  as  alread}'  cited  arc  concerned, 
what  was  a  dwelling-house  or  a  part  thereof  at  common  law,  must  also 
be  one  under  those  statutes.  Now,  at  common  law,  before  the  adop- 
tion of  the  Revised  Statutes,  it  had  been  held  that  it  was  not  needful 
that  there  should  be  an  internal  communication  between  the  room  or 
building  in  which  the  owner  dwelt,  if  tlie  two  rooms  or  buildings  were 
in  the  same  inclosure,  and  were  built  close  to  and  adjoining  each 
other.  Case  of  Gibson,  Mutton  &  Wiggs,  Leach's  Cr.  Cases,  320  (case 
165),  recognized  in  The  People  v.  Parker,  4  Johns.  423.  In  the  case 
from  Leach,  there  was  a  shop  built  close  to  a  dwelling-house  in  which 
the  prosecutor  resided.  There  was  no  internal  communication  between 
them.  No  person  slept  in  the  shop.  The  only  door  to  it  was  in  the 
court-3'ard  before  the  house  and  shop,  which  yard  was  inclosed  b}*  a 
brick  wall,  including  them  within  it,  with  a  gate  in  the  wall  serving 
for  ingress  to  them.  The  breaking  and  entering  was  into  the  shop. 
Objection  was  taken  that  it  could  not  be  considered  the  dwelling-house 
of  the  prosecutor,  and  the  case  was  reserved  for  the  consideration  of 
the  twelve  judges.  The}'  were  all  of  the  opinion  that  the  shop  was  to 
be  considered  a  part  of  the  dwelling-house,  being  within  the  same 
building  and  the  same  roof,  though  there  was  only  one  door  to  the 
shop,  that  from  the  outside,  and  that  the  prisoners  had  been  dulj-  con- 
victed of  burglary  in  a  dwelling-house.  The  case  in  Johnson's  Reports^ 
supra,  is  also  significant,  from  the  facts  relied  upon  there  to  distin- 


1040  QUINN  V.   PEOPLE.  [CHAP.  XVI. 

gnish  it  from  the  case  in  Leach,  supra.  Those  facts  were  that  the  shop 
entered,  in  which  no  one  slept,  though  on  the  same  lot  with  the  dwell- 
ing-house, was  twenty  feet  from  it,  not  inclosed  b\'  the  same  fence,  nor 
connected  by  a  fence,  and  both  open  to  a  street.  The  court  said  that 
they  were  not  within  the  same  curtilage,  as  there  was  no  fence  or  yard 
inclosing  both  so  as  to  bring  them  within  one  inclosure,  therefore,  the 
case  was  within  that  of  The  King  v.  Garland,  1  Leach  Cr.  Cas.  130 
(or  171),  case  77.  It  has  been  urged,  in  the  consideration  of  the  case 
in  hand,  that  though  the  common  law  did  go  farther  than  the  cases 
above  cited,  and  did  deem  all  out-houses,  when  the}'  were  within  the 
same  inclosure  as  the  dwelling-house,  a  part  of  it,  yet  that  the}-  must, 
to  be  so  held,  be  buildings  or  rooms  tlie  use  of  which  subserved  a 
domestic  purpose,  and  were  thus  essential  or  convenient  for  the  enjo}'- 
ment  of  the  dwelling-house  as  such.  Gibson's  case,  supra,  would 
alone  dispose  of  that.  The  building  there  entered  was  not  only  of 
itself  a  shop  for  trade,  but  it  was  in  the  use  and  occupation  of  a  per- 
son other  than  the  owner  of  the  dwelling-house.  Tlie  l)ooks  have  many 
cases  to  the  same  end.  Rex  r.  Gibbons  &  Kew  Russ.  &  R}-.  442, 
the  case  of  a  shop.  Robertson's  case,  4  Citv  Hall  Rec.  63,  also  a 
shop  with  no  internal  communication  with  the  dwelling-house.  Rex  v. 
Stock  et  aL,  Russ.  &  Ry.  185,  a  counting-room  of  bankers,  ^x  parte 
Vincent,  26  Ala.  145,  one  room  in  a  house  used  as  a  wareroom  for 
goods.  Rex  V.  Witt,  Ry.  &  M.  248,  an  office  for  business,  beloT^ 
lodging  rooms.  Indeed,  the  essence  of  the  crime  of  burglary  at  com- 
mon law  is  the  midnight  terror  excited,  and  the  liability  created  by  it 
of  danger  to  human  life,  growing  out  of  the  attempt  to  defend  property 
from  depredation.  It  is  plain  that  both  of  these  may  arise,  when  the 
place  entered  is  in  close  contiguit}'  with  the  place  of  the  owner's  repose, 
though  the  former  has  no  relation  to  the  latter  by  reason  of  domestic 
use  or  adaptation.  Besides,  the  cases  have  disregarded  the  fact  of 
domestic  use,  necessity,  or  convenier.ee,  and  have  found  the  criterion  in 
the  physical  or  legal  severance  of  the  two  departments  or  buildings, 
Rex  V.  Jenkins,  Russ.  &  Ry.  244  ;  Rex  v.  Westwood,  id.  495  ;  where 
the  separation  of  the  buildings  was  by  a  narrow  way,  both  of  them 
being  used  for  the  same  family  domestic  purposes.  It  is  not  to  be 
denied  that  there  are  some  cases  which  do  put  just  the  difference 
above  noted,  as  now  urged  for  the  plaintiff  in  error.  State  v.  Lang- 
ford,  1  Dev.  253;  State  v.  Jenkins,  5  Jones,  430;  State  v.  Br^-ant 
Ginns,  1  Nott  &  McCord,  583.  Though,  in  the  case  last  cited,  it  is 
conceded  that  if  a  store  is  entered,  which  is  a  part  of  a  dwelling-house, 
by  being  under  the  same  roof,  the  crime  is  committed  ;  and  it  must  be 
80,  if  it  is  the  circumstance  of  midnight  terror  in  breaking  open  a 
dwelling  house,  which  is  a  chief  ingredient  of  the  crime  of  burglary ; 
and  it  is  for  that  reason  that  barns  and  other  out-houses,  if  in  proxim- 
ity to  the  mansion-house,  are  deemed  qtiasi  dwelling-houses,  and  enti- 
tled to  the  same  protection.  State  v.  Brooks,  4  Conn.  446-449.  Coke 
C3  Inst.  64)  is  cited  to  show  that  only  those  buildings  or  places,  which 


SECT.  I.]  ,  QUINN   V.   PEOPLE.  1041 

in  their  nature  and  recognized  use  are  intended  for  the  domestic  com* 
fort  and  convenience  of  the  owner,  may  be  the  subject  of  burglar}'  at 
common  law ;  but  in  the  same  book  and  at  the  same  page  the  author 
also  sa3's  :  "  But  a  shop  wherein  any  person  doth  converse  "  —  that  is, 
be  employed  or  engaged  with  ;  Richardson's  Die,  in  voce  —  "  being  a 
parcell  of  a  mansion-house,  or  not  parcell,  is  taken  for  a  mansion- 
house."  So  Hale  is  cited  (vol.  1,  P.  C.  558) ;  and  it  is  there  said  that, 
"  to  this  day  it  is  holden  no  burglary  to  break  open  such  a  shop.'"  But 
what  does  he  mean  by  that  phrase  ?  That  appears  from  the  authority 
which  he  cites  (Ilutton's  Reps.  33)  ;  where  it  was  held  no  burglary  to 
break  and  enter  a  shop,  held  by  one  as  a  tenant  in  the  house  of 
another,  in  which  the  tenant  worked  b}-  day,  but  neither  he  nor  the 
owner  slept  by  night.  And  the  reason  given  is  the  one  above  noticed 
and  often  recognized  by  the  cases,  that  by  the  leasing  there  was  a 
severance  in  law  of  the  shop  from  the  dwelling-house.  But  Hale  also 
(vol.  1,  P.  C,  p.  557)  cites  as  law  the  passage  from  The  Institutes 
above  quoted.  Other  citations  from  text  books  are  made  b}'  the  plain- 
tiff in  error ;  they  will  be  found  to  the  same  effect,  and  subject  to  the 
same  distinction  as  those  from  Coke  and  Hale.  And  see  Rex  v.  Gib- 
bons et  al.,  supra  ;  Rex  v.  Richard  Carroll,  1  Leach  Cr.  Cas.  272,  case 
115.  That  there  must  be  a  dwelling-house,  to  which  the  shop,  room, 
or  other  place  entered  belongs  as  a  part,  admits  of  no  doubt.  To  this 
effect,  and  no  more,  are  the  cases  cited  b}'  the  plaintiff  in  error,  of 
Rex  V.  Harris,  2  Leach,  701  ;  Rex  v.  Davies,  alias  Silk,  id.  87G,  and 
the  like.  There  were  cases  which  went  further  than  anything  I  have 
asserted.  They  did  not  exact  that  the  building  entered  should  be  close 
to  or  adjoining  the  dwelling-house,  but  held  the  crime  committed,  if 
the  building  entered  was  within  the  same  fence  or  inclosure  as  the  build- 
ing slept  in.  And  the  dwelling-house  in  which  burglar}'  might  be  com- 
mitted was  held  formerly  to  include  out-houses,  —  such  as  warehouses, 
barns,  stables,  cow-houses,  dairy-houses,  — though  not  under  the  same 
roof  or  joining  contiguous  to  the  house,  provided  the}'  were  parcel 
thereof  1  Russ.  on  Cr.  *799,  and  authorities  cited.  Any  out-house 
within  the  curtilage,  or  same  common  fence  with  the  dwelling-house 
itself,  was  considered  to  be  parcel  of  it,  on  the  ground  that  the  capital 
house  protected  and  privileged  all  its  branches  and  appurtenants,  if 
within  the  curtilage  or  home-stall.  State  v.  Twitty,  1  Hayw.  (N.  C.) 
102  ;  State  v.  Wilson,  id.  242  ;  see  also  State  v.  Ginns,  1  Nott  & 
McCord,  583,  supra,  where  this  is  conceded  to  be  the  common  law. 
See  note  a  to  Garland's  case,  supra. 

It  seems  clear,  that  at  common  law  the  shop  which  the  plaintiff  in 
error  broke  into  would  have  been  held  a  part  of  a  dwelling-house. 

The  judgment  brought  up  for  review  should  be  affirmed. 

It  may  ward  off  misapprehension  if  it  is  said,  that  if  different  stores 
in  a  large  building,  some  parts  of  which  are  used  for  sleeping  apart- 
ments, are  rented  to  different  persons  for  purposes  of  trade  or  com- 
merce, or  mechanical  pursuit,  or  manufacturing,  another  rule  comes  m. 

66 


104:2  WALKER   V.    STATE.  [CHAP.  XVI, 

For  illustration,  let  there  be  mentioned  the  Astor  House  in  New  York 
city.  The  rule  is,  that  a  part  of  a  dwelling-house  nia}-  be  so  severed 
from  the  rest  of  it,  by  being  let  to  a  tenant,  as  to  be  no  longer  a  place 
in  which  burglary  in  the  first  degree  can  be  committed ;  if  there  be  no 
internal  communication,  and  the  tenant  does  not  sleep  in  it.  Then  it 
is  not  parcel  of  the  dwelling-house  of  the  owner,  for  he  has  no  occupa- 
tion or  possession  of  it ;  nor  is  it  a  dwelling-house  of  the  tenant,  for  he 
does  not  lodge  there.  1  Hale  P.  C.  557,  558  ;  Kel.  83,  84 ;  4  Black. 
Com.  225,  226 ;  East  P.  C.  c.  15,  §  20,  p.  507. 

Allen,  Miller,  and  Earl,  JJ.,  concur  j  Rapallo  and  Andrews,  JJ., 
dissent;  Church,  C.  J.,  not  voting.  Judgment  affirmed. 


WALKER  V.    STATE. 
\  Supreme  Court  of  Alabama.     1879. 

[Reported  63  Ala.  49.] 

Brickell,  C.  J.  The  statute  (Code  of  1876,  §  4343)  provides,  that 
*'  any  person  who,  either  in  the  night  or  day  time,  with  intent  to  steal, 
or  to  commit  a  felony,  breaks  into  and  enters  a  dwelling-house,  or  any 
building,  structure,  or  inclosure  within  the  curtilage  of  a  dwelling- 
house,  though  not  forming  a  part  thereof,  or  into  any  shop,  store, 
warehouse  or  other  building,  structure,  or  inclosure  in  which  any  goods, 
merchandise  or  other  valuable  thing  is  kept  for  use,  sale,  or  deposit, 
provided  such  structure,  other  than  a  shop,  store,  warehouse,  or  build- 
ing, is  specially  constructed  or  made  to  keep  such  goods,  merchandise, 
or  other  valuable  thing,  is  guilty  of  burglary,"  etc. 

The  defendant  was  indicted  for  breaking  into  and  entering  "  a  corn- 
crib  of  Noadiah  AVoodruff  and  Robert  R.  Peeples,  a  building  in  which 
corn,  a  thing  of  value,  was  at  the  time  kept  for  use,  sale,  or  deposit, 
with  intent  to  steal,''  etc.  He  was  convicted  ;  and  the  case  is  now 
presented  on  exceptions  taken  to  instructions  given,  and  the  refusal  of 
insti'uctions  requested,  as  to  what  facts  will  constitute  a  breaking  into 
and  entry,  material  constituents  of  the  offence  charged  in  the  indict- 
ment. The  facts  on  which  the  instructions  were  founded  are  :  that  in 
the  crib  was  a  quantity  of  shelled  corn,  piled  on  the  floor  ;  in  April  or 
May,,  1878,  the  crib  had  been  broken  into,  and  corn  taken  therefrom, 
without  the  consent  of  the  owners,  who  had  the  crib  watched ;  and 
thereafter  the  defendant  was  caught  under  it,  and  on  coming  out,  vol- 
untarily confessed  that  about  three  weeks  before  he  had  taken  a  large 
auger,  and  going  under  the  crib,  had  bored  a  hole  through  the  floor, 
from  which  the  corn,  being  shelled,  ran  into  a  sack  he  held  under  it; 
that  he  then  got  about  three  pecks  of  corn,  and  with  a  cob  closed  the 
hole.     On  these  facts  the  City  Court  was  of  opinion,  and  so  instructed 


I 


SECT.  L]  walker   V.   STATE.  1043 

the  juiy,  that  there  was  such  a  breaking  and  entry  of  the  crib,  as  would 
constitute  the  ortenee,  and  refused  instructions  requested  asserting  the 
converse  of  the  proposition. 

The  material  changes  the  statute  has  wrought  as  to  the  offence  of 
burglary,  as  known  and  defined  at  common  law,  are  as  to  the  time  and 
place  of  its  commission.  An  intent  to  steal  or  to  commit  a  felony  are 
the  words  of  the  statute,  while  an  intent  to  commit  a  felony  were  the 
words  of  the  common  law.  Under  our  statutes,  a  felony  is  defined  as 
a  public  offence,  punished  by  death,  or  by  imprisonment  in  the  peniten- 
tiary ;  while  public  offences  otherwise  punishable  are  misdemeanors. 
The  larceny  of  other  than  personal  property  particularly  enumerated, 
and  under  special  circumstances,  the  property  not  exceeding  the  A^alue 
of  125,  is  petit  larceny,  and  a  mere  misdemeanor.  The  intent  to  steal, 
as  an  element  of  burglary,  is  therefore  made  the  equivalent  of  an 
intent  to  commit  a  felony,  though  the  value  of  the  thing  intended  to  be 
stolen  ma}'  be  less  than  $25,  and  its  larceny  a  misdemeanor. 

The  statute  employs  the  words,  "breaks  into  and  enters;"  and 
these  are  borrowed  from  the  common-law  definition  of  burglar}'.  They 
must  be  received  with  the  signification,  and  understood  in  the  sense 
given  them  at  common  law.  "There  must,  in  general,"  says  Black- 
stone,  "  be  an  actual  breaking,  not  a  mere  legal  clausxim  f regit  by 
leaping  over  invisible  ideal  boundaries,  which  may  constitute  a  civil 
trespass,  but  a  substantial  and  forcible  irruption."  The  degree  of 
force  or  violence  which  may  be  used  is  not  of  importance,  —  it  may 
be  very  slight.  The  lifting  the  latch  of  a  door ;  the  picking  of  a  lock, 
or  opening  with  a  key  ;  the  removal  of  a  pane  of  glass,  and  indeed,  the 
displacement  or  unloosing  of  any  fastening,  which  the  owner  has  pro- 
vided as  a  security  to  the  house,  is  a  breaking  —  an  actual  breaking  — 
within  the  meaning  of  the  term  as  employed  in  the  definition  of  burg- 
lary at  common  law,  and  as  it  is  employed  in  the  statute.  In  Hughes' 
case,  1  Leach,  C.  C,  case  178,  the  prisoner  had  bored  a  hole  with  a 
centre-bit  through  the  panel  of  the  house  door,  near  to  one  of  the  bolts 
by  which  it  was  fastened,  and  some  pieces  of  the  broken  panel  were 
found  withinside  the  threshold  of  the  door,  but  it  did  not  appear  that 
any  instrument  except  the  point  of  the  centre-bit,  or  that  any  part  of 
the  prisoner's  body  had  been  withinside  the  house,  or  that  the  aperture 
made  was  large  enough  to  admit  a  man's  hand.  The  court  were  of 
opinion  that  there  was  a  sufficient  breaking,  but  not  such  an  entry  as 
would  constitute  the  oflTence. 

The  boring  the  hole  through  the  floor  of  the  crib  was  a  sufficient 
breaking,  but  with  it  there  must  have  been  an  entry.  Proof  of  a  break- 
ing, though  it  may  be  with  an  intent  to  steal  or  the  intent  to  commit  a 
felony,  is  proof  of  one  only  of  the  facts  making  up  the  offence,  and  is  as 
insufficient  as  proof  of  an  entry  through  an  open  door  without  break- 
ing. If  the  hand  or  any  part  of  the  body  is  intruded  within  the  house 
the  entry  is  complete.  The  entry  may  also  be  completed  by  the  intru- 
sion of  a  tool  or  instrument  within  the  house,  though  no  part  of  the 


1044  WALKER   V.   STATE.  [CHAP.  XVI. 

body  be  introduced.  Thus,  "  if  A  breaks  the  house  of  B.  in  the  night- 
time, with  intent  to  steal  goods,  and  breaks  the  window  and  puts  in  his 
liand,  or  puts  in  a  hook  or  other  engine  to  reach  out  goods,  or  puts  a 
pistol  in  at  the  window,  with  an  intent  to  kill,  though  his  hand  be  not 
within  the  window,  this  is  burglary."  1  Hale,  555.  When  no  part  of 
the  body  is  introduced,  —  when  the  only  entry  is  of  a  tool  or  instrument 
introduced  by  the  force  and  agency  of  the  party  accused,  the  inquiry  is 
whether  the  tool  or  instrument  was  employed  solely  for  the  purpose  of 
breaking,  and  thereby  effecting  an  entry,  or  whether  it  was  employed 
not  only  to  break  and  enter,  but  also  to  aid  in  the  consummation  of  the 
criminal  intent  and  its  capacity  to  aid  in  such  consummation.  Until 
there  is  a  breaking  and  entry  the  offence  is  not  consummated.  The 
offence  rests  largely  in  intention,  and  though  there  may  be  sufficient 
evidence  of  an  attempt  to  commit  it,  which  of  itself  is  a  crime,  the 
attempt  may  be  abandoned,  —  of  it  there  may  be  repentance  before  the 
consummation  of  the  offence  intended.  The  breaking  may  be  at  one 
time  and  the  entry  at  another.  The  breaking  may  be  complete,  and 
3-et  an  entry  never  effected.  From  whatever  cause  an  entry  is  not 
effected,  burglary  has  not  been  committed.  When  one  instrument  is 
employed  to  break,  and  is  without  copacity  to  aid  otherwise  than  by 
opening  a  way  of  entry,  and  another  instrument  must  be  used,  or  the 
instrument  used  in  the  breaking  must  be  used  in  some  other  way  or 
manner  to  consummate  the  criminal  intent,  the  intrusion  of  the  instru- 
ment is  not  of  itself  an  entry.  But  when,  as  in  this  case,  the  in- 
strument is  employed  not  only  to  break,  but  to  effect  the  only  entry 
contemplated  and  necessary  to  the  consummation  of  the  criminal  intent ; 
when  it  is  intruded  within  the  house,  breaking  it,  effecting  an  entry, 
enabling  the  person  introducing  it  to  consummate  his  intent,  the  offence 
is  complete.  The  instrument  was  employed  not  only  for  the  purpose 
of  breaking  the  house,  but  to  effect  the  larceny  intended.  When  it  was 
intruded  into  the  crib  the  burglar  acquired  dominion  over  the  corn 
intended  to  be  stolen.  Such  dominion  did  not  require  any  other  act 
on  his  part.  When  the  auger  was  withdrawn  from  the  aperture  made 
with  it  the  corn  ran  into  the  sack  he  used  in  its  asportation.  There 
was  a  breaking  and  entry,  enabling  him  to  effect  his  criminal  intent 
without  the  use  of  any  other  means,  and  this  satisfies  the  requirements 
of  the  law. 
Let  the  judgment  be  affirmed. 

Judgment  affirmed. 


SECT.  II.]  ■   HOLMES'S  CASE.  1045 


SECTION  II. 

Arson, 

1  Hawk.  P.  C.  ch.  18,  sects.  1,  2.  Arson  is  a  felony  at  common 
law,  in  maliciousl}'  and  voluntarily  burnmg  the  house  of  another  by 
night  or  by  day. 

Not  only  a  mansion-house,  and  the  principal  parts  thereof,  but  also 
any  other  house,  and  the  outbuildings,  as  barns  and  stables,  adjoining 
thereto,  and  also  barns  full  of  corn,  whether  they  be  adjoining  to  any 
house  or  not,  are  so  far  secured  by  law,  that  the  malicious  burning 
of  them  is  arson,  and  it  is  said,  that  in  an  indictment  they  are  well 
expressed  by  the  word  dotmcs^  without  adding  mansionahs. 

But  it  seems  that  at  this  day  the  burning  of  the  frame  of  a  house,  ^ 
or  of  a  stack  of  corn,  &c.,  is  not  accounted  arson,  because  it  cannot 
come  under  the  word  clomps,  which  seems  at  present  to  be  thought 
necessary  in  every  indictment  of  arson,  yet  it  is  said  that  anciently  the 
burning  a  stack  of  corn  was  accounted  arson. 


ANONYMOUS. 

Assizes.     1495. 

[Reported  Year  Book,  11  H.  VII.  1.] 

A  MAN  was  indicted  because  he  had  feloniously  at  night  burned  a 
barn,  and  because  it  adjoined  the  house,  it  was  held  felony  at  common 
law,  and  the  party  was  hanged. 


HOLMES'S   CASE. 
King's  Bench.     1634. 

[Reported  Crake  Car.  376.] 

William  Holmes  was  indicted  hi  London,  For  that  he,  in  April,  7 
Car.  I,,  being  possessed  of  an  house  in  London,  in  Throgmorton  street, 
\n  such  a  ward,  for  six  years,  remainder  to  John  S.  for  three  years,  the 
reversion  to  the  corporation  of  Haberdashers,  in  fee :  he  vi  et  armis, 
3  April,  7  Car.  I.,  the  said  house  "  felonice,  voluntarie,  et  malitiose, 
igne  combussit,  ea  intentione,  ad  eandem  domum  mansionalem,  nee  non 

1  See  Mulligan  v.  State,  25  Tex.  App.  199.  — Ep- 


1046  HOLMES'S    CASE.  [ClIAP.  XVI. 

diversas  alias  domos  mansionales  diversorum  ligeorum,  domini  regis , 
adtunc  et  idem  situat.  et  existent,  ad  dictum  domum  mansionalem  dicti 
Willielmi  Holmes  contigue  adjacent,  adtunc  et  ibidem  feloniee,  volunta- 
rie,  et  malitiose  totaliter  comburendo  et  igne  consumendo  contra  pacem." 

Upon  bis  being  arraigned  at  Newgate,  he  was  found  guilty  ;  but 
before  judgment  this  indictment  was  removed  by  certiorari  into  this 
court.  It  was  argued  at  the  bar  by  Grimston,  that  it  was  not  felony  ; 
and  now  this  Term  at  the  bench. 

And,  by  Richardson,  Chief  Justice,  Jones,  and  Berkley,  [JJ.],  it  was 
held,  that  it  was  not  felony  to  burn  a  house  whereof  he  is  in  possession 
by  virtue  of  a  lease  for  years  ;  for  they  said,  that  burning  of  houses 
is  not  felony,  unless  that  they  are  cedes  alietice :  and  therefore  Britton, 
p.  16,  Bracton,  p.  146,  and  The  Book  Assize,  27,  Assize,  pi.  44,  men- 
tion, that  it  is  felony  to  burn  the  house  of  another;  and  10  Edw.  4, 
pi.  14;  3  Hen.  7,  pi.  10;  10  Hen.  7,  pi.  1,  and  Poulter's  Case,  11 
Co.  29,  which  say,  that  burning  of  houses  generally  is  felony,  are  to 
be  intended  de  cedibus  alienis,  et  non  propriis :  and  although  the 
indictment  be  "  ea  intentione  ad  combureudum  felonice,  voluntarie,  et 
malitiose,'"'  the  houses  of  divers  others  "contigue  adjacentes,"  yet 
intent  only  without  fact  is  not  felony.  Also  Berkley  and  Jones,  Jus- 
tices, held,  that  it  cannot  be  said  to  be  vi  et  arrnis  when  it  is  in  his 
own  possession. 

Jones,  Justice,  also  said,  that  he  could  not  be  well  indicted  of  felony, 
because  none  of  their  names  are  mentioned  who  were  the  owners  of 
the  houses  adjoining.  But  to  that  objection  Berkley  and  Richardson, 
[JJ.],  agreed  not. 

But  1  argued,  that  the  burning  in  the  indictment  mentioned  is  felony, 
because  it  is  capitcde  crimeyi^  felleo  animo  perpetratum,  which  is  the 
definition  of  felony  in  Co.  Lit.  391,  a.  Also  bj*  the  rule  in  Bracton, 
146.  "quod  incendium  nequiter,  et  ob  inimicitias,  factum  capitaii 
pama  puniatur ;  si  vcro  sit  incendium  fortuit6  vel  per  negligentiam, 
et  non  mala  conscientia,  non  sic  punietur ;  sed  versus  eum  criminaliter 
agatur."  And  it  cannot  be  said  to  be  by  negligence  in  another's  house  ; 
w'herefore  it  is  to  be  intended  in  his  own  house.  Also  this  burning  is 
found  to  he  malitiose  ;  so  it  is  ni'dd  conscieyitia  et  nequiter  factum. 
Also  this  burning  of  his  house  in  a  street  of  the  city  adjoining  to  tiie 
houses  of  others,  is  to  the  endangering  of  the  city,  and  therefore  ought 
to  be  construed  to  be  felony ;  but  so  peradventure  is  not  the  burning 
of  his  house  in  the  fields.  And  whereas  it  was  said,  that  the  inten- 
tion cannot  make  a  felony,  it  was  answered,  that  the  intention  here  is 
coupled  with  an  act  of  burning,  and  with  the  intendment  of  an  act 
which  is  felony;  as  5  Hen.  7,  pi.  18;  7  Hen.  7,  pi.  42;  13  Edw.  4, 
pi.  9  ;  where  a  man  delivers  goods  to  one,  and  afterwards  he  that 
delivered  them  privately  steals  them,  to  the  intent  to  charge  him,  it  is 
felony.  And  whereas  it  was  objected,  that  being  his  own  possession, 
it  cannot  be  said  vi  et  armis  ;  I  answered,  that  vi  et  armis  is  well 
enough,  where  there  is  a  malfeasance,  as  it  is  in  an   action  upon  the 


SECT.  II.]  Isaac's  case.  1047 

case,  9  Co.  50,  b.  Also  every  indictment  is  vi  et  armis  et  contra 
pacem,  where  an  act  is  done  against  the  commonwealth :  so  it  is 
where  a  servant  runs  away  with  goods  committed  to  his  trust  above 
forty  shillings,  although  properly  it  cannot  be  said  to  be  vi  et  armis, 
because  they  were  in  his  custody.  And  in  this  case  the  ill  consequence 
which  might  have  fallen  out  by  this  act  makes  the  offence  the.greater ; 
and  The  Year  Books  in  10  Edw.  4,  pi.  14;  3  Hen.  7,  pT.  10;  11  Hen. 
7,  pi.  1  ;  and  Stanford,  36  ;  11  Co.  29  ;  4  Co  20,  a,  put  the  case  of 
burning  of  houses  generally,  and  not  of  the  burning  of  other  men's 
houses  :  and  it  is  an  equal  mischief  in  a  commonwealth  to  burn  bis 
own  in  a  city  or  vill  as  to  burn  the  houses  of  others,  for  the  danger 
which  may  ensue. 

But  THE  OTHER  THREE  JUSTICES  rcsolvcd  ut  supva,  that  it  was  not 
felony  ;  wherefore  he  was  discharged  thereof. 

But  because  it  was  an  exorbitant  offence,  and  found,  they  ordered, 
that  he  should  be  fined  £500  to  the  king,  and  imprisoned  during  the 
king's  pleasure,  and  should  stand  upon  the  pillory,  with  a  paper  upon 
his  head  signifying  the  offence,  at  Westminster  and  at  Cheapside, 
upon  the  market-day,  and  in  the  place  where  he  committed  the  offence, 
and  should  be  bound  with  good  sureties  to  his  good  behavior  during 
life.i 


ISAAC'S   CASE. 
Spring  Assizes.     1799. 

[Reported  2  East  P.  C.  1031.] 

John  Isaac  was  indicted  for  a  misdemeanor  in  having  unlawfully, 
wilfuU}',  and  maliciously  set  on  fire  and  burnt  a  certain  house  of 
Thomas  Isaac,  being  in  the  occupation  of  the  said  John  Isaac :  which 
house  the  indictment  alleged  was  contiguous  and  adjoining  to  certain 
dwelling-houses  of  divers  liege  subjects,  &c. ;  by  means  whereof  the 
same  were  in  great  danger  of  being  set  on  fire  and  burnt.  There  was 
a  second  count  which  differed  only  in  charging  that  the  house  set  on 
fire  was  the  prisoner's  own  house. 

The  counsel  for  the  prosecution  opened  that  the  charge  to  be  proved 
against  the  defendant,  though  laid  as  a  misdemeanor,  was,  that  he  wil- 
fully set  on  fire  his  own  house  in  order  to  defraud  the  Phoenix  fire- 
insurance  office  ;  and  that  in  fact  his  own  and  several  other  person's 
houses  adjoining  were  burnt  down.  Upon  which  Buller,  J.,  said,  that  ir 
other  persons'  houses  were  in  fact  burnt,  although  the  defendant  might 
only  have  set  fire  to  his  own,  yet  under  these  circumstances  the  prisoner 
was  guilty,  if  at  all,  of  felon}' ;  the  misdemeanor  being  merged  ;  and  he 
could  not  be  convicted  on  this  indictment ;  and  therefore  directed  an 
acquittal.^ 

1  See  s.  c.  reported  W.  Jones,  351.  —  Ed. 

2  See  Probert's  Case,  2  East  P.  C.  1030.  —  Ed, 


1048 


COMMONWEALTH   V.   TUCKER.  [CHAP.    XVI. 


COMMONWEALTH  v.  TUCKER. 
Supreme  Judicial  Court  of  Massachusetts.     1872. 

[Reported  110  Mass.,  403] 
Indictment  alleging  that  the  defendant  set  fire  to  the  barn  of  Wil- 
liam H  Codding,  and  by  the  kindling  of  said  fire  and  the  burning  of 
said  barn,  the  dwelling-house  of  Codding  was  ''burned  and  consumed." 
At  the  trial  in  the  Superior  Court,  before  Brigham,  C.  J.,  the  evidence 
tended  to  show  that  the  barn  was  burned  entirely  ;  that  the  shingles  on 
the  roof  of  the  dwelling-house  took  fire  and  were  burned  in  two  places ; 
and  that  persons  were  on  the  roof  keeping  it  wet  with  water ;  but  as  to 
how  much  the  shingles  were  burned  there  was  a  conflict  of  testimony. 

The  defendant  asked  the  judge  to  instruct  the  jury  "  that  they  must 
be  satisfied  that  some  portion  of  the  dwelling-house  had  been  actually 
on  fire  by  reason  of  the  burning  of  the  barn,  and  had  been  burned  and 
consumed  thereby  ;  and  that  the  substance  and  fibre  of  the  wood  of 
such  portion  so  on  fire  was  actually  destroyed."  But  the  judge  refused 
so  to  instruct  the  jury,  and  instructed  them  "  that  they  must  be  satis- 
fied that  some  portion  of  the  dwelling-house  had  been  actually  on  fire 
by  reason  of  the  burning  of  the  barn,  and  had  been  burned  thereby,  so 
that  the  substance  of  the  wood  of  such  portion  so  on  fire  was  actually 
burned."  The  jury  returned  a  verdict  of  guilty,  and  the  defendant 
alleged  exceptions. 

tS.  R.  Toionsend,  for  the  defendant,  cited  Commonwealth  v.  Betton, 
5  Cush.  427  ;  Commonwealth  v.  Van  Schaack,  16  Mass.  105. 

C.  B.  Train,  Attorney  General,  for  the  Commonwealtli.  The  indict- 
ment is  upon  the  Gen.  Sts.  c.  161,  §  1,  which  provide  that  "  whoever 
wilfully  and  maliciously  burns  the  dwelling-house  of  anollicr,"  or  "  wil- 
fully and  maliciously  sets  fire  to  any  building,  by  the  burning  whereof 
such  dwelling-house  is  burnt,"  shall  be  punished.  The  instructions 
were  correct.  Commonwealth  v.  Van  Schaack,  16  Mass.  105;  Com- 
monwealth y.  Betton,  5  Cush.  427  ;  Regina  v.  Parker,  9  C.  &  P.  45  ; 
Regina  v.  Russell,  C.  &  Marsh.  541  ;  2  East  P.  C  1020;  1  Hale  P. 
C.  568;  Roscoe  Crim.  Ev.  (8th  ed.)  281. 

Wells.  J.  The  instructions  given  to  the  jury  were  correct,  and  in 
accordance  with  the  authorities  ;  as  well  those  cited  for  tlie  defendnnt 
as  those  for  the  Commonwealth.  They  required  the  jury  to  find  that 
some  portion  of  the  dwelling-house  had  been  actually  on  fire  and  burned. 
To  have  required  them  to  find  something  more,  by  use  of  the  terras 
"  consumed"  and  "destroyed,"  as  prayed  for,  would  have  been  to  go 
beyond  the  provisions  of  the  statutes,  and  to  leave  the  jury  with  no 
precise  definition  of  that  which  was  necessary  to  constitute  the  offence. 

£xceptio7is  overruled. 


CHAP.  XVII.]  REGINA   V,   GLOSS.  1049 


CHAPTER  XVII. 
FORGERY. 


REGINA  V.  CLOSS. 

Court  for  Crown  Cases  Reserved.     1857. 

[Reported  Dears.  Sf  B.  C.  C.  460.] 

The  following  case  was  reserved  and  stated  at  the  Central  Criminal 
Court. 

The  prisoner  was  tried  for  the  forgery  of  a  copy  of  a  painting,  on 
which  he  painted  the  signature  "  John  Linnell."  ^ 

It  was  objected  by  the  prisoner's  counsel,  in  arrest  of  judgment, 
that  these  counts  disclosed  no  indictable  offence,  and  the  judgment  was 
respited  until  the  next  sessions,  that  the  opinion  of  this  Court  might 
be  taken  whether  or  not  the  second  and  third  counts,  or  either  of  them, 
sufficiently  showed  an  offence  indictable  at  common  law.  The  prisoner 
remains  in  custody. 

This  case  was  argued,  on  the  21st  November,  1857,  before  Cockbukn, 
C.  J.,  Erle,  J.,  Williams,  J.,  Crompton,  J.  and  Channell,  B. 

Metcalfe  appeared  for  the  Crown,  and  McLityre  for  the  prisoner. 

Mclntyre,  for  the  prisoner. 

The  second  and  third  counts  are  bad  in  arrest  of  judgment.  The 
second  count  charges  in  substance  a  cheat  at  common  law,  and  that 
cheat  is  not  properly  laid.  An  indictment  for  a  cheat  at  common  law 
should  so  set  out  the  facts  as  to  make  it  appear  on  the  record  that  the 
cheat  charged  would  affect,  not  a  private  individual,  but  the  public 
generally  (2  Russ.  on  Crimes,  280).  The  obtaining  money  by  means 
of  a  mere  assertion,  or  by  tlie  use  of  a  false  private  token,  is  not  an 
indictable  offence  at  common  law  (2  East  P.  C.  820).  In  this  count 
the  allegation  is  that  a  false  token  of  a  private  character  was  used. 

The  third  count  is  for  forgery  of  the  name  of  John  Linnell  on  a 
picture.  Forgery  is  defined  to  be  the  fraudulent  making  or  alteration 
of  a  writing,  to  the  prejudice  of  another's  right  (2  Russ.  on  Crimes, 
318).  In  the  case  of  a  written  instrument,  the  forgery  of  the  signature 
is  reall}^  the  forgery  of  the  whole  instrument,  and  is  always  so  laid  in 
the  indictment.  Unless,  therefore,  an  indictment  would  lie  for  the 
forgery  of  a  picture,  this  count  cannot  be  supported.  The  averments 
in  this  count  amount  to  no  more  than  this,  in  substance, —  that  the 
prisoner  falsely  pretended  that  the  picture  was  Linnell's.  To  falsely 
pretend  that  a  gun  was  made  by  Manton  would  be  no  offence  at  com- 

^        1  This  short  statement  is  substituted  for  the  copy  of  the  indictment.  —Ed. 


1050  EEGINA   V.    GLOSS.  [CHAP.  XVII. 

mon  law ;  and  no  case  has  gone  the  length  of   holding  that  to  stamp 
the  name  of  Manton  on  a  gun  would  be  forgery. 

Crompton,  J. —  That  would  be  forgerj-  of  a  trade  mark,  and  not  of 
a  name. 

CocKBURN,  C.  J. —  Stamping  a  name  on  a  gun  would  not  be  a  writ- 
ing; it  would  be  the  imitation  of  a  mark,  not  of  a  signature. 

Mclntyre.  The  name  put  by  a  painter  in  the  corner  of  a  picture 
is  not  his  signature.  It  is  onh'  a  mark  to  show  that  the  picture  was 
painted  by  him.  An}'  arbitrary  sign  or  figure  might  be  used  for  the 
same  purpose  instead  of  the  name  ;  it  is  a  part  of  the  painting,  and 
every  faithful  copy  would  contain  it.  The  averments  mean  that  the 
whole  picture  was  made  to  represent  the  whole  of  the  original ;  and  the 
averment  of  the  imitation  of  the  signature  is  no  more  than  an  aver- 
ment of  the  imitation  of  a  tree  or  a  house  in  the  original.  There  is  no 
allegation  that  the  picture  was  passed  off  as  the  original,  or  the  signa- 
ture as  the  genuine  signature  ;  neither  is  there  any  averment  that  the 
name  was  painted  for  the  purpose  of  inducing  the  belief  that  the  picture 
was  the  original. 

Metcalfe,  for  the  Crown.  It  is  not  necessary  to  show  that  the  cheat 
alleged  in  a  count  for  cheating  at  common  law  is  one  which  affects  the 
public  generally.  If  to  a  bare  lie  you  add  a  false  token,  it  is  indictable, 
and  it  is  a  mistake  to  suppose  that  the  public  must  be  affected. 

Erle,  J.  —  The  prisoner  did  not  get  the  money  for  the  name  but  for 
the  picture. 

Metcalfe.  He  obtained  it  by  the  whole  transaction.  In  "Worrel's 
case,  Trem.  P.  C.  106,  deceitfully  counterfeiting  a  general  seal  or  mark 
of  the  trade  on  cloth  of  a  certain  description  and  quality,  was  held  to 
be  an  indictable  cheat.  This  case  and  Farmer's  case,  Trem.  P.  C.  109, 
show  that  the  fraud  need  not  be  of  a  strictly  public  nature,  and  that 
any  device  calculated  to  defraud  an  ordinarily  cautious  person  is  indict- 
able. In  this  case  the  picture  was  in  fact  a  device  calculated  to  deceive 
the  public. 

The  third  count  for  forgery  is  good.  In  Regina  v.  Sharman,  Dears. 
C.  C.  285,  it  was  decided  that  it  is  an  offence  at  common  law  to  utter 
a  forged  instrument,  the  forgery  of  wliich  is  an  offence  at  common  law, 
and  that  the  effecting  the  fraud  is  immaterial.  This  decision  over- 
ruled the  decision  in  Regina  v.  Boult,  2  Car.  «&;  Kir.  G04. 

A  false  certificate  in  writing  is  the  subject  of  an  indictment  at  com- 
mon law ;  Regina  v.  Toshack,  1  Den.  C.  C.  492. 

I  therefore  contend  that  where,  as  here,  the  name  of  the  artist  is 
painted  on  the  picture,  it  is  in  the  nature  of  a  certificate,  and  the  fact 
that  the  signature  is  on  canvas,  instead  of  being  on  a  separate  piece 
of  paper,  does  not  render  the  offence  less  indictable. 

Williams,  J.  —  But  it  is  consistent  with  all  the  allegations  that  the 
prisoner  may  have  sold  the  picture  without  calling  attention  to  the 
signature. 

Metcalfe.  The  forging  the  name  on  a  picture  is  in  fact  a  forgery  of 
the  picture. 


CHAP.  XVII.]  •  REGINA   V.    CLOSS.  1051 

CocKBURN,  C.  J. —  If  3-ou  go  bejoiid  writing,  where  are  you  to  stop? 
Can  sculpture  be  the  subject  of  forgery  ? 
Mclntyre  replied. 

Cur.  adv.  vult. 
The  judgment  of  the  Court  was  delivered,  on  30th  November,  1857, 

by 

CocKBURN,  C.  J. —  The  defendant  was  indicted  on  a  charge,  set  out 
in  three  counts  of  the  indictment,  that  he  had  sold  to  one  Fitzpatrick 
a  picture  as  and  for  an  original  picture  painted  by  Mr.  Linnell,  when 
in  point  of  fact  it  was  only  a  copy  of  a  picture  which  Mr.  Linnell  had 
painted ;  and  that  he  passed  it  off  by  means  of  having  the  name  "  J. 
Linnell "  painted  in  the  corner  of  the  picture,  in  imitation  of  the  origi- 
nal one,  on  which  the  name  was  painted  by  the  painter.  Upon  the 
first  count,  for  obtaining  money  by  false  pretences,  the  defendant  was 
acquitted  ;  tlie  second  was  for  a  cheat  at  common  law  ;  and  the  third 
was  for  a  cheat  at  common  law  by  means  of  a  forgery.  As  to  the  third 
count  we  are  all  of  the  opinion  that  there  was  no  forgery.  A  forgery 
must  be  of  some  document  or  writing ;  and  this  was  merely  in  the 
nature  of  a  mark  put  upon  the  painting  with  a  view  of  identifying  it, 
and  was  no  more  than  if  the  painter  put  any  other  arbitrary  mark  as  a 
recognition  of  the  picture  being  his.  As  to  the  second  count,  we  have 
carefully  examined  the  authorities,  and  the  result  is  that  we  think  if  a 
person,  in  the  course  of  his  trade  openly  and  publicly  carried  on,  were 
to  put  a  false  mark  or  token  upon  an  article,  so  as  to  pass  it  off  as  a 
genuine  one,  when  in  fact  it  was  only  a  spurious  one,  and  the  article 
was  sold  and  money  obtained  by  means  of  that  false  mark  or  token, 
that  would  be  a  cheat  at  common  law.  As,  for  instance,  in  the  case 
put  by  way  of  example  during  the  argument,  if  a  man  sold  a  gun  with 
the  mark  of  a  particular  manufacturer  upon  it,  so  as  to  make  it  appear 
like  the  genuine  production  of  the  manufacturer,  that  would  be  a  false 
mark  or  token,  and  the  party  would  be  guilty  of  a  cheat,  and  therefore 
hable  to  punishment  if  the  indictment  were  fairly  framed  so  as  to 
meet  the  case  ;  and  therefore,  upon  the  second  count  of  this  indictment, 
the  prisoner  would  have  been  liable  to  have  been  convicted  if  that 
count  had  been  properly  framed  ;  but  we  think  that  count  is  faulty  in 
this  respect,  that,  although  it  sets  out  the  false  token,  it  does  not  suffi- 
ciently show  that  it  was  by  means  of  such  false  token  the  defendant 
was  enabled  to  pass  off  the  picture  and  obtain  the  money.  The  convic- 
tion, therefore,  cannot  be  sustained. 

Crompton,  J.—  The  modern  authorities  have  somewhat  qualified  the 
older  ones,  but  I  do  not  wish  to  pledge  myself  to  the  view  taken  as  to 
the  nature  of  the  false  token,  which  would  amount  to  a  cheat  at  com- 
mon law.  I  would  be  inclined  to  adopt  the  view  taken  by  the  rest  of 
the  Court,  but  do  not  pledge  myself  to  it.  I  concur  in  the  judgment 
that  this  conviction  cannot  be  sustained  upon  the  grounds  stated  by 
the  Chief  Justice. 

Conviction  quashed. 


2052  REGINA   V.    RITSON.  [CHAP.  XYII. 

REGINA  9.  RITSOX. 

Court  for  Crown  Cases  Reserved.     1869. 

[Reported  L.  R.  1  C.  C.  200.] 

Case  stated  by  Hayes,  J. :  — 

The  prisoners  were  indicted  at  the  last  Manchester  assizes  under 
24  &  25  Vict.  c.  98,  §  20,  for  forging  a  deed  with  intent  to  defraud 
J.  Gardner. 

W.  Ritson  was  the  father  of  S.  Ritson.  He  had  been  entitled  to 
certain  land  which  had. been  convcA-ed  to  him  in  fee,  and  he  had  bor- 
rowed of  the  prosecutor,  J.  Gardner,  on  the  security  of  this  land,  more 
than  730^.,  for  which  he  had  given  on  the  10th  of  January,  1868,  an 
equitable  mortgage  by  written  agreement  and  deposit  of  title  deeds. 

On  the  5th  of  May,  1868,  W.  Ritson  executed  a  deed  of  assignment 
under  the  Bankruptcy  Act,  1861,  conveying  all  his  real  and  personal 
estate  to  a  trustee  for  the  benefit  of  creditors  ;  and  on  the  7th  of  ^lay, 
1868,  by  deed  between  the  trustee  and  W.  Ritson  and  the  prosecutor, 
reciting,  amongst  other  things,  the  deed  of  assignment  and  the  mort- 
gage, and  that  the  money  due  on  the  mortgage  was  in  excess  of  the 
value  of  the  land,  the  trustee  and  W.  Ritson  conveyed  the  land  and 
all  the  estate,  claim,  etc.,  of  the  trustees  and  W.  Ritson  therein,  to  the 
prosecutor,  his  heirs  and  assigns,  for  ever.  After  the  execution  of  this 
conveyance  the  prosecutor  entered  into  possession  of  the  land.  Subse- 
quently S.  Ritson  claimed  title  to  the  land,  and  commenced  an  action 
of  trespass  against  the  prosecutor.  Tlie  prosecutor  tlien  saw  tlie  attor- 
ney for  S.  Ritson,  who  produced  the  deed  charged  as  a  forged  deed, 
and  the  prosecutor  commenced  this  prosecution  against  W.  and  S. 
Ritson. 

This  deed  was  dated  the  12th  of  March,  1868,  the  date  being  before 
W.  Ritson's  deed  of  assignment  and  the  conveyance  to  the  prosecutor, 
and  purported  to  be  made  between  W.  Ritson  of  the  one  part  and  S. 
Ritson  of  the  other  part.  It  recited  the  original  conveyance  in  fee  to 
W.  Ritson,  and  that  W.  Ritson  had  agreed  with  S.  Ritson  for  a  lease 
to  him  of  part  of  the  land  at  a  yearly  rent,  and  then  professed  to  demise 
to  S.  Ritson  a  large  part  of  the  frontage  and  most  valuable  part  of  the 
land  conveyed  to  the  prosecutor,  as  mentioned  above,  for  the  term  of 
999  years  from  the  25th  of  March  then  instant.  The  deed  contained 
no  notice  of  any  title,  legal  or  equitable,  of  the  prosecutor,  and  con- 
tained the  usual  covenants  between  a  lessor  and  lessee.  It  was  exe- 
cuted by  both  W.  and  S.  Ritson. 

The  case  then  stated  evidence  which  shewed  that  the  deed  had  in 
fact  been  executed  after  the  assignment  to  W.  Ritson's  creditors  and 
after  the  conveyance  to  the  prosecutor,  and  that  the  deed  had  been 
fraudulently  antedated  by  W.  and  S.  Ritson  for  the  purpose  of  over- 
reaching the  conveyance  to  the  prosecutor. 


CHAP.  XTIL]  REGINA    V.    EITSON.  1053 

The  counsel  for  the  prisoners  contended  that  the  deed  could  not  be  a 
forgery,  as  it  was  really  executed  by  the  parties  between  whom  it  pur- 
ported to  be  made.  The  learned  judge  told  the  jury  that  if  the  alleged 
lease  was  executed  after  the  conveyance  to  the  prosecutor,  and  ante- 
dated with  the  purpose  of  defrauding  him.  it  would  be  a  forgery.  The 
jur\-  found  both  the  prisoners  guilty. 

The  question  was  whether  the  prisoners  were  properly  convicted  of 
forgery  under  the  circumstances. 

The  case  was  argued  before  Kelly,  C.  B..  MaPvTix.  B.,  Blackburn, 
Lush,  and  Brett,  JJ. 

ToTv,  for  the  prisoners.  The  deed  in  this  case  was  not  forged,  be- 
cause it  was  really  made  between  and  executed  by  W.  and  S.  Ritson, 
the  persons  by  whom  it  purported  to  be  executed,  and  between  whom 
it  purported  to  have  been  made.  The  date  of  the  deed  was  false,  but 
a  false  statement  in  a  deed  will  not  render  the  deed  a  forgery.  If  this 
deed  were  held  to  be  a  forgery,  then  any  instrument  containing  a  false 
statement  made  fraudulently  would  be  forged. 

[Blackbur^t.  J.  This  is  not  merely  a  deed  containing  a  false  state- 
ment, but  it  is  a  false  deed.] 

There  is  no  modern  case  to  shew  that  a  deed  like  this  is  a  forger}-. 
To  constitute  a  forgery,  there  must  be  either,  first,  a  false  name,  or, 
secondly,  an  alteration  of  another's  deed,  or,  thirdly,  an  alteration  of 
one's  own  deed.  There  is  no  modern  authority  to  include  any  other 
kind  of  forgery.  Salway  v.  Wale,  Moore,  655,  appears  an  authority 
against  the  prisoners,  but  that  was  a  decision  upon  5  Eliz.  c.  14,  which 
is  not  worded  in  the  same  way  as  24  &  25  Yict.  c.  98,  §  20.  The  defi- 
nitions of  the  text-writers,  which  may  seem  to  include  a  case  like  the 
present,  are  not  in  themselves  authorities.  The  decisions  on  which  the 
definitions  purport  to  be  based,  and  not  the  definitions  themselves,  are 
the  authorities  which  must  be  looked  at. 

Addison,  for  the  prosecution.  The  deed  in  this  case  is  a  forgery, 
because  it  is  a  false  deed  fraudulently  made.  Although  there  is  no 
recent  case  where  similar  facts  have  been  held  to  constitute  a  forgery, 
yet  such  a  state  of  facts  comes  within  the  definitions  of  forgery  given 
by  the  text-books.  Russell,  vol.  ii,  p.  709,  4th  ed.  ;  Hawkins,  P.  C. 
bk.  i,  cap.  20,  p.  263,  8th  ed. ;  3  Inst.  169  ;  Bacon's  Abr.,  tit.  Forgery, 
A.  ;  Comyn's  Dig.,  tit.  Forgery,  A.  I.  Salway  r.  "VTale,  Moore,  655, 
is  also  an  authority  for  the  convietion.  The  essence  of  forgery  is  the 
false  making  of  an  instrument.     Rex  v.  Parkes,  2  Leach,  at  p.  785. 

Kelly.  C.  B.  During  the  argument  I  certainly  entertained  doubts 
on  this  question,  because  most,  or  indeed  all,  the  authorities  cited  are 
comparatively  ancient.  They  are  all  before  the  statute  (24  &  25  Vict. 
c.  98,  §  20),  on  which  this  indictment  is  framed,  and  before  11  Geo. 
4  &  1  Wm.  4,  c.  66,  the  statute  which  was  in  force  when  most  of  the 
modern  text-books  on  criminal  law  were  written.  When,  however,  we 
look  to  all  these  authorities,  and  to  the  text-writers  of  the  highest  rep- 


1054  REGINA  V.   KITSON.  [CHAP.  XVII. 

utation,  such  as  Comyns  (Dig.,  tit.  Forger}',  A.  I.),  Bacon  (Abr.,  tit. 
Foro-erv,  A.),  and  Coke  (3  Inst.  169),  we  find  there  is  no  conflict  of 
authorit}-.  Sir  M.  Foster  (Foster's  Crown  Cases,  116),  Russell  on 
Crimes  (vol.  ii,  p.  709,  4th  ed.),  and  other  writers,  also  all  agree.  The 
definition  of  forger}-  is  not,  as  has  been  suggested  in  argument,  that 
ever}'  instrument  containing  false  statements  fraudulently  made  is  a 
forgery ;  but,  adopting  the  correction  of  my  Brother  Blackburn,  that 
every  instrument  which  fraudulently  purports  to  be  that  whicli  it  is  not 
is  a  forgery,  whether  the  falseness  of  the  instrument  consists  in  the 
fact  that  it  is  made  in  a  false  name,  or  that  the  pretended  date,  when 
that  is  a  material  portion  of  the  deed,  is  not  the  date  at  which  the  deed 
was  in  fact  executed.  I  adopt  this  definition.  It  is  impossible  to  dis- 
tinguish this  case  in  principle  from  those  in  which  deeds  made  in  a  false 
name  are  held  to  be  forgeries. 

There  is  no  definition  of  forgery  in  24  &  25  Vict.  c.  95,  but  the 
offence  has  been  defined  by  very  learned  authors,  and  we  think  this 
case  falls  within  their  definitions.  Under  these  circumstances  the  con- 
viction must  be  affirmed. 

Martix,  B.  I  am  of  the  same  opinion.  Mr.  Torr  was,  no  doubt, 
right  in  saying  that  this  is  not  a  familiar  case.  That,  however,  need 
not  affect  the  principle  to  be  applied  in  deciding  it.  All  the  authorities 
are  to  the  same  effect.  "What  is  laid  down  on  the  subject  by  Comyns 
(Dig.,  tit.  Forgery,  A.  I.),  Russell  on  Crimes  (vol.  ii,  p.  709,  4th  ed.), 
Sir  M.  Foster  (Fosters  Crown  Cases,  116),  and  in  Tomlin's  Law  Dic- 
tionary (Forgery),  is  good  sense.  All  the  authorities,  both  the  ancient 
and  modern,  agree.  There  is  no  reason  why  the  principle  of  these 
authorities  should  not  apply  to  the  present  case,  except  that  the  facts 
here  are  somewhat  unusual. 

Blackburn,  J.  I  am  of  the  same  opinion.  By  24  &  25  Vict.  e.  98, 
§  20,  it  is  a  felony  to  "  forge"  any  deed  with  intent  to  defraud.  The 
material  word  in  this  section  is  "forge."  There  is  no  definition  of 
"forge"  in  the  statute,  and  we  must  therefore  inquire  what  is  the 
meaning  of  the  word.  The  definition  in  Comyns  (Dig.,  tit.  Forgery, 
A.  I.)  is  "  forgery  is  where  a  man  fraudulently  writes  or  publishes  a 
false  deed  or  writing  to  the  prejudice  of  the  right  of  another,"  —  not 
making  an  instrument  containing  that  which  is  false,  which,  I  agree 
with  Mr.  Torr,  would  not  be  forgery,  but  making  au  instrument  which 
purports  to  be  that  which  it  is  not.  Bacon's  Abr.,  (tit.  Forgery,  A.), 
which,  it  is  well  known,  was  compiled  from  the  MS.  of  Chief  Baron 
Gilbert,  explains  forgery  thus  :  "  The  notion  of  forgery  doth  not  so 
much  consist  in  the  counterfeiting  of  a  man's  hand  and  seal,  ...  but 
in  the  endeavoring  to  give  an  appearance  of  truth  to  a  mere  deceit  and 
falsity,  and  either  to  impose  that  upon  the  world  as  the  solemn  act  of 
another  which  he  is  in  no  way  privy  to,  or  at  least  to  make  a  man's  owa 


CHAP.  XVU.]  REGINA   V.   RITSON.  1055 

act  appear  to  have  been  done  at  a  time  when  it  was  not  done,  and  by 
force  of  such  a  falsity  to  give  it  an  operation  which  in  truth  and  justice 
it  ought  not  to  have."  The  material  words,  as  applicable  to  the  facts 
of  the  present  case,  are,  "to  make  a  man's  own  act  appear  to  have 
been  done  at  a  time  when  it  was  not  done."  When  an  instrument  pro- 
fesses to  be  executed  at  a  date  different  from  that  at  which  it  really 
was  executed,  and  the  false  date  is  material  to  the  operation  of  the 
deed,  if  the  false  date  is  insei'ted  knowingly  and  with  a  fraudulent 
intent,  it  is  a  forger}-  at  common  law. 

Ordinarily  the  date  of  a  deed  is  not  material,  but  it  is  here  shown  by 
extrinsic  evidence  that  the  date  of  the  deed  was  material.  Unless  the 
deed  had  been  executed  before  the  5th  of  Ma}',  it  could  not  have  con- 
veyed any  estate  in  the  land  in  question.  The  date  was  of  the  essence 
of  the  deed,  and  as  a  false  date  was  inserted  with  a  fraudulent  intent, 
the  deed  was  a  false  deed,  within  the  definition  in  Bacon's  Abridgment. 
This  is  a  sufficient  authorit}-. 

If,  however,  there  were  no  authority,  I  think  that  the  principle  I  have 
mentioned  is  right  and  expedient.  Besides  this,  however.  Coke  (3  Inst. 
169),  speaking  of  forgery  before  the  statute  of  Elizabeth  (o  Eliz.  c.  14), 
states  that  the  principle  of  forgery  does  apply  to  a  case  like  this,  and 
that  to  make  a  deed  purporting  to  bear  a  false  date  may  be  a  forgery. 
To  the  same  effect  is  Sir  M.  Foster  in  Lewis's  Case,  Foster's  Crown 
Cases,  116,  where  all  the  judges  in  consultation  assumed  that  ante- 
dating a  deed  might  be  forger}'. 

All  the  text-books  agree,  and  there  is  no  single  authority  against  the 
definition  I  have  stated.  Mr.  Torr,  however,  says  that  the  definition 
is  old.     I  think  that  this  gives  it  all  the  greater  weight. 

Lush,  J.  I  also  think  that  the  conviction  should  be  affirmed.  If 
the  i^arties  to  this  deed  had  inserted  the  true  date  in  the  first  instance 
and  had  subsequently  altered  it,  there  is  no  question  that  it  would  have 
been  a  forgery.  The  offence  would  then  have  fallen  within  the  letter  of 
24  &  25  Vict.  c.  98,  §  20,  which  says,  "  Whoever  with  intent  to  defraud 
shall  forge  or  alter  .  .  .  any  deed,"  etc.,  shall  be  guilty  of  felony.  It 
would  be  absurd  to  hold  that  an  alteration  might  constitute  a  forgery, 
but  that  an  original  false  making  would  not.  We  could  not  yield  to 
such  a  distinction  unless  we  were  obliged.  I  am  satisfied  that  "  forge  " 
in  §  20  of  24  &  25  Vict.  c.  98,  should  be  understood  in  the  sense  in 
which  that  word  is  used  in  the  authorities,  new  and  old,  on  the  subject. 
To  make  a  deed  appear  to  be  that  which  it  is  not,  if  done  with  a  fraud- 
ulent intent  to  deceive,  is  a  forgery,  whether  the  falsehood  consist  in 
the  name  or  in  any  other  matter. 

Brett,  J.,  concurred.  Conviction  affirmed. 


1056  COMMONWEALTH   V.   KAY.  [CHAP.  XVII. 


COMMONWEALTH  v.  RAY. 

Supreme  Judicial  Court  of  Massachusetts.     1855. 

[Reported  3  Gray,  441.] 

Forgery.  The  indictment  alleged  that  the  defendant,  on  the  13th 
of  July,  1854,  at  Boston,  "  did  falsely  make,  forge,  and  counterfeit  a 
certain  writing  in  the  form  and  similitude  of  a  railroad  ticket  or  pass, 
of  the  tenor  following  ; 

New  York  Central  Railroad. 

Albany  to  Buffalo. 

Good  this  day  only,  unless  indorsed  by  the  conductor. 

D.  L.  Fremj're. 
Said  counterfeit  writing  purporting  to  be  a  ticket  or  pass  issued  by  the 
New  York  Central  Railroad  Compan}-,  whereby  said  corporation  prom- 
ise and  assure  to  the  owner  and  holder  thereof  a  passage  in  their  cars 
over  their  railroad,  extending  from  Albany  to  Buffalo  in  the  State  of 
New  York  ;  said  ticket  being  signed  by  D.  L.  Fremyre,  on  their  behalf, 
he  being  their  ticket  clerk,  or  ticket  agent ;  ^  .  .  .  and  that  the  said 
Miner  L.  Ray  did  then  and  there  falsely  make,  forge,  and  counterfeit 
one  of  said  tickets,  with  intent  to  defraud,  against  the  peace  of  the 
Commonwealth." 

At  the  trial  in  the  Municipal  Court  the  jury  returned  a  verdict  of 
guilty,  and  the  defendant  alleged  exceptions. 

Dewey,  J.  The  instrument  here  set  forth  as  the  subject  of  the  alleged 
forgery  is  not  one  included  in  the  enumeration  in  the  Rev.  Sts.  c.  127, 
§  1.  It  is  not,  therefore,  a  statute  offence.  But  many  writings,  not 
enumerated  in  the  statutes,  are  3'et  the  subjects  of  forger}'  at  common 
law.  The  definition  of  forgery  at  common  law  is  quite  sudieient  to 
embrace  the  present  case.  Take  that  in  4  Bl.  Com.  247,  "the  fraud- 
ulent making  or  alteration  of  a  writing  to  the  prejudice  of  another  man's 
right,"  or  that  of  2  East  P.  C.  861  (which  is  supported  by  Bac.  Ab. 
Forgery,  B,  and  followed  in  2  Russell  on  Crimes,  358),  that  "  the 
counterfeiting  of  any  writing,  with  a  fraudulent  intent,  whereby'  another 
may  be  prejudiced,  is  forgery  at  common  law  ;  "  or  that  of  Mr.  Justice 
Buller,  "  the  making  a  false  instrument  with  intent  to  deceive."  Rex 
V.  Coogan,  2  East  P.  C.  949..  In  3  Greenl.  Ev.  §  103,  it  is  said  that 
forgery  "may  be  committed  of  any  writing  which,  if  genuine,  would 
operate  as  the  foundation  of  another  man's  liability."  See  also  Regina 
V.  Boult,  2  Car.  &  K.  604. 

It  is  said  that  this  instrument  does  not  import  a  contract  or  promise 
of  any  kind.  We  think  otherwise,  and  that,  although  it  is  wanting  in 
details  of  language  fully  stating  the  nature  and  extent  of  such  contract, 
it  has  written  language  sufficiently  indicative  of  a  promise  or  obligation 

1  Part  of  the  statement  of  facts,  the  arguments,  and  part  of  the  opinion  are 
omitted.  —  Ed. 


CHAP.  XVII.]  COMMONWEALTH   V.   RAY.  1057 

to  render  it  an  instrument  of  value,  h}-  the  false  and  fraudulent  making 
of  which  the  rights  of  others  would  be  prejudiced.  This  false  instru- 
ment would,  if  genuine,  have  created  a  liability  on  the  part  of  the  New 
York  Central  Railroad  Company  to  carry  the  holder  thereof  from  Albany 
to  Buffaloj  and  would,  therefore,  have  been  a  contract  of  value  in  the 
hands  of  a  third  person. 

It  is  then  objected  that  the  crime  of  forgery  cannot  be  committed  by 
counterfeiting  an  instrument  wholly  printed  or  engraved,  and  on  which 
there  is  no  written  signature  personally  made  by  those  to  be  bound. 
The  question  is  whether  the  writing,  the  counterfeiting  of  which  is 
forgery,  may  not  be  wholly  made  bj'  means  of  printing  or  engraving,  or 
must  be  written  by  the  pen  by  the  party  who  executes  the  contract. 
In  the  opinion  of  the  court,  such  an  instrument  may  be  the  subject  of 
forgery  when  the  entire  contract,  including  the  signature  of  the  party, 
has  been  printed  or  engraved.  The  cases  of  forgery,  generally,  are 
cases  of  forged  handwriting.  The  course  of  business,  and  the  neces- 
sities of  greater  facilities  for  despatch,  have  introduced  to  some  extent 
the  practice  of  having  contracts  and  other  instruments  wholly  printed 
or  engraved,  even  including  the  name  of  the  party  to  be  bound. 

The  effect  to  be  given  to  the  words  "  writing  "  and  "  written  "  was 
much  considered  by  this  court  in  the  case  of  Henshaw  v.  Foster,  9  Pick. 
312.  It  arose  in  another  form,  and  was  not  a  question  of  forger}'. 
But  in  the  learned  opinion  of  the  late  Chief  Justice  Parker,  this  ques- 
tion, as  to  what  was  embraced  in  these  terms,  seems  to  be  fully  settled, 
and  it  was  there  held  that  the  words  "writing"  or  "written  "  included 
the  case  of  instruments  printed  or  engraved,  as  well  as  those  traced  by 
the  pen. 

It  has  never  been  considered  any  objection  to  contracts  required  by 
the  statute  of  frauds  to  be  in  writing  that  thej'  were  printed.  It  is 
true  that  in  those  cases,  usually,  the  signature  at  the  bottom  is  in  man- 
uscript, and  the  printed  articles  of  contract  leave  the  name  to  be  thus 
filled  up.  In  such  cases,  the  signature  by  the  pen  is  necessarj-  to  the 
execution  of  the  contract.  And  this  is  the  more  expedient  mode,  as  it 
furnishes  the  greater  facility  for  ascertaining  its  genuineness.  But  if 
an  individual  or  a  corporation  do  in  fact  elect  to  put  into  circulation 
contracts  or  bonds  in  which  the  names  of  the  contracting  parties  are 
printed  or  lithographed  as  a  substitute  for  being  written  with  the  pen, 
and  so  intended,  the  signatures  are  to  all  intents  and  purposes  the 
same  as  if  written.  It  may  be  more  difficult  to  estabhsh  the  fact  of 
their  signature  ;  but  if  shown,  the  effect  is  the  same.  Such  being  the 
effect  of  such  form  of  executing  like  contracts,  it  would  seem  to  follow 
that  anj'  counterfeit  of  it,  in  the  similitude  of  it,  would  be  making  a 
false  writing,  purporting  to  be  that  of  another,  with  the  intent  to 
defraud.^  .  .  . 

1  The  learned  judge  held  that  the  indictment  was  defective. —  Ed. 

67 


.JS!Kf" 


1058  COMMONWEALTH   V.   BALDWIN.  [CHAP.  XVII. 

COMMONWEALTH  v.  BALDWIN. 

Supreme  Judicial  Court  of  Massachusetts.     1858. 

[Reported  11  Gray,  197.1 

"Thomas,  J.  This  is  an  indictment  for  the  forger}-  of  a  promissory 
note.  The  indictment  alleges  that  the  defendant  at  Worcester  in  this 
county  "feloniously  did  falsely  make,  forge,  and  counterfeit  a  certain 
false,  forged,  and  counterfeit  promissory  note,  which  false,  forged,  and 
counterfeit  promissory  note  is  of  the  following  tenor,  that  is  to  say : 

'$457.88.  Worcester,  Aug.  21,1856.  Four  months  after  date  we 
promise  to  pay  to  the  order  of  Russell  Phelps  four  hundred  fifty  seven 
dollars  j%%.,  payable  at  Exchange  Bank,  Boston,  value  received. 

Schouler,  Baldwin  &  Co.' 
with  intent  thereby  then  and  there  to  injure  and  defraud  said  Russell 
Phelps." 

The  circumstances  under  which  the  note  was  given  are  thus  stated 
in  the  bill  of  exceptions  :  Russell  Phelps  testified  that  the  note  was 
executed  and  delivered  by  the  defendant  to  him  at  the  Bay  State 
House  in  Worcester,  on  the  21st  of  August,  1856,  for  a  note  of  equal 
amount,  which  he  held,  signed  by  the  defendant  in  his  individual 
name,  and  which  was  overdue  ;  and  that  in  reply  to  the  inquiry  who 
were  the  members  of  the  firm  of  Schouler,  Baldwin  &  Co.,  the  defend- 
ant said,  "Henry  W.  Baldwin,  and  William  Schouler  of  Columbus." 
He  further  said  that  no  person  was  represented  by  the  words  "  &  Co." 
It  appeared  in  evidence  that  the  note  signed  Schouler,  Baldwin  &  Co. 
was  never  negotiated  b}-  Russell  Phelps.  The  government  offered 
evidence  which  tended  to  prove  either  that  there  never  had  been  any 
partnership  between  Schouler  and  Baldwin,  tlie  defendant ;  or,  if  there 
ever  had  been  a  partnership,  that  it  was  dissolved  in  the  month  of 
July,  1856. 

The  question  raised  at  the  trial  and  discussed  here  is  whether  the 
execution  and  delivery  of  the  note,  under  the  facts  stated,  and  with 
intent  to  defraud,  was  a  forgery. 

It  would  be  difficult  perhaps  by  a  single  definition  of  the  crime 
of  forgery  to  include  all  possible  cases.  Forgery,  speaking  in  general 
terms,  is  the  false  making  or  material  alteration  of  or  addition  to  a 
written  instrument  for  the  purpose  of  deceit  and  fraud.  It  may  be  the 
making  of  a  false  writing  purporting  to  be  that  of  another.  It  may  be 
the  alteration  in  some  material  particular  of  a  genuine  instrument  b}' 
a  change  of  its  words  or  figures.  It  may  be  the  addition  of  some 
material  provision  to  an  instrument  otherwise  genuine.  It  may  be  the 
appending  of  a  genuine  signature  of  another  to  an  instrument  for 
which  it  was  not  intended.  The  false  writing,  alleged  to  have  been 
made,  may  purport  to  be  the  instrument  of  a  person  or  firm  existing, 
or  of  a  fictitious  person  or  firm.     It  may  be  even  in  the  name  of  the 


CHAP.  XVII.]  COMMONWEALTH  V.   BALDWIN.  1059 

prisoner,  if  it  purports  to  be,  and  is  desired  to  be  received  as  the 
instrument  of  a  third  person  having  the  same  name. 

As  a  general  rule,  however,  to  constitute  forger^-,  the  writing  falsely- 
made  must  purport  to  be  the  writing  of  another  part}'  than  the  person 
making  it.  The  mere  false  statement  or  implication  of  a  fact,  not  hav- 
ing reference  to  the  person  bj'  whom  the  instrument  is  executed,  will 
not  constitute  the  crime. 

An  exception  is  stated  to  this  last  rule  by  Coke,  in  the  Third  Insti- 
tute, 169,  where  A.  made  a  feoffment  to  B.  of  certain  land,  and  after- 
wards made  a  feoffment  to  C.  of  the  same  land  with  an  antedate 
before  the  feoffment  to  B.  This  was  certainly  making  a  false  instru- 
ment in  one's  own  name ;  making  one's  own  act  to  appear  to  have 
been  done  at  a  time  when  it  was  not  in  fact  done.  We  fail  to  under- 
stand on  what  principle  this  case  can  rest.  If  the  instrument  had  been 
executed  in  the  presence  of  the  feoffee  and  antedated  in  his  presence, 
it  clearly  could  not  have  been  deemed  forger}-.  Beyond  this,  as  the 
feoffment  took  effect,  not  by  the  charter  of  feoffment,  Tjut  by  the 
livery  of  seisin  —  the  entry  of  the  feoffor  upon  the  land  with  the  charter 
and  the  delivery  of  the  twig  or  clod  in  the  name  of  the  seisin  of  all  the 
land  contained  in  the  deed  —  it  is  not  easy  to  see  how  the  date  could 
be  material. 

The  case  of  Mead  v.  Young,  4  T.  R.  28,  is  cited  as  another  excep- 
tion to  the  rule.  A  bill  of  exchange  payable  to  A.  came  into  the 
hands  of  a  person  not  the  payee  but  having  the  same  name  with  A. 
This  person  indorsed  it.  In  an  action  by  the  indorsee  against  the 
acceptor,  the  question  arose  whether  it  was  competent  for  the  defend- 
ant to  show  that  the  person  indorsing  the  same  was  not  the  real  payee. 
It  was  held  competent,  on  the  ground  that  the  indorsement  was  a 
forgery,  and  that  no  title  to  the  note  could  be  derived  through  a 
forgery.  In  this  case  of  Mead  v.  Young,  the  party  assumed  to  use  the 
name  and  power  of  the  payee.  The  indorsement  purported  to  be  used 
■was  intended  to  be -taken  as  that  of  another  person,  the  real  pa^-ee. 

The  writing  alleged  to  be  forged  in  the  case  at  bar  was  the  hand- 
writing of  the  defendant,  known  to  be  such  and  intended  to  be  received 
as  such.  It  binds  the  defendant.  Its  falsity  consists  in  the  implica- 
tion that  he  was  a  partner  of  Schouler  and  authorized  to  bind  him  by 
his  act.     This,  though  a  fraud,  is  not,  we  think,  a  forgery. 

Suppose  the  defendant  had  said  in  terms,  "  I  have  authority'  to  sign 
Schouler's  name,"  and  then  had  signed  it  in  the  presence  of  the 
promisee.  He  would  have  obtained  the  discharge  of  the  former  note 
by  a  false  pretence,  a  pretence  that  he  had  authority  to  bind  Schouler. 
"  It  is  not  ,"  says  Sergeant  Hawkins,  "  the  bare  writing  of  an  instru- 
ment in  another's  name  without  his  privity,  but  the  giving  it  a  false 
appearance  of  having  been  executed  by  him,  which  makes  a  man 
guilty  of  forgery."     1  Hawk.  c.  70,  §  5. 

If  the  defendant  had  written  upon  the  note,  "William  Schouler  b}' 
his  agent  Henry  W.  Baldwin,"  the  act  plainly  would  not  have  been 


1060  COLVIN   V.   STATE.  [CHAP.  XVII. 

forger}'.  The  party  taking  the  note  knows  it  is  not  the  personal  act 
of  Schouler.  He  does  not  rely  upon  his  signature.  He  is  not  deceived 
by  the  semblance  of  his  signature.  He  relies  solely  upon  the  averred 
agency  and  authority  of  the  defendant  to  bind  Schouler.  80,  in  the 
case  before  us,  the  note  was  executed  in  the  presence  of  the  promisee. 
He  knew  it  was  not  Schouler's  signature.  He  relied  upon  the  defend- 
ant's statement  of  his  authority  to  bind  him  as  partner  in  the  firm  of 
Schouler,  Baldwin  &  Co.  Or  if  the  partnership  had  in  fact  before 
existed  but  was  then  dissolved,  the  effect  of  the  defendant's  act  was 
a  false  representation  of  its  continued  existence. 

In  the  ease  of  Regina  v.  White,  1  Denison,  208,  the  prisoner  in- 
dorsed a  bill  of  exchange,  *'por  procuration,  Thomas  Toralinson, 
Emanuel  White."  He  had  no  authority  to  make  the  indorsement, 
but  the  twelve  judges  held  unanimoush'  that  the  act  was  no  forgery. 

The  nisi pr his  case  of  Regina  v.  Rogers,  8  Car.  &  P.  629,  has  some 
resemblance  to  the  case  before  us.  The  indictment  was  for  uttering 
a  forged  acceptance  of  a  bill  of  exchange.  It  was  sold  and  delivered 
by  the  defendant  as  the  acceptance  of  Nicholson  &:  Co.  Some  evidence 
was  offered  that  it  was  accepted  bv  one  T.  Nicholson  in  tiie  name  of 
a  fictitious  firm.  The  instructions  to  the  jury  were  perhaps  broad 
enough  to  include  the  case  at  bar,  but  the  jur}'  having  found  that 
the  acceptance  was  not  written  b}'  T.  Nicholson,  the  case  went  no 
further.  The  instructions  at  ?iisi  prixs  have  no  force  as  precedent,  and 
in  principle  are  plainly  beyond  the  line  of  the  settled  cases. 

The  result  is  that  the  exceptions  must  be  sustained  and  a  new  trial 
ordered  in  the  common  pleas.  It  will  be  observed  however  that  the 
grounds  on  which  the  exceptions  are  sustained  seem  necessarily  to  dis- 
pose of  the  cause.  Exceptions  sustaitied. 


COLVIN    V.   STATE. 
Supreme  Court  of  Indiana.     1858.  < 

[Reported  11  Ind.  361,] 

Perkins,  J.  Indictment  for  forgery.  The  offence  charged  consisted 
in  the  uttering,  as  true,  a  false  and  forged  deed  to  a  piece  of  land. 

The  facts  may  be  shortly  stated.  John  Randolph  Brewster  and 
Archibald  R.  Colvin  were  boarding,  with  their  wives,  at  the  house  of 
Jacob  Lesman,  Fort  Wayne,  Indiana.  The}'  were  destitute  of  money 
to  pay  their  board,  and  their  credit  was  about  expiring.  For  the  pur- 
pose of  "  making  a  raise,*'  says  the  witness,  they  agreed  to  execute 
deeds  for  an  exchange  of  land.  They  obtained  a  map,  selected  certain 
sections  of  land  in  Iowa  and  Texas,  and  agreed  that  Colvin  should 
make  a  deed  to  Brewster  for  those  in  Texas,  and  Brewster  to  Colvin 
for  those  in  Iowa.     They  accordingly  went  before  a  public  officer,  and 


CHAP.   XVII.]  COLVIxV   V.   STATE.  1061 

got  him  to  draw  up  and  take  acknowledgment  of  the  deeds,  talking  at 
the  time  of  the  execution  about  the  amount  to  be  paid  in  cash  by  one  to 
the  other  as  the  difference  in  the  value  of  the  lands,  etc.  Brewster 
executed  his  deed  to  Colvin  in  the  name  of  James  Brewster,  a  name  he 
had  assumed,  for  a  short  time,  at  Fort  Wayne  ;  but  Colvin  knew  that 
his  true  name  was  John  Randolph  Brewster. 

This  deed,  so  executed  to  him  by  Brewster,  Colvin  took  to  Lesman, 
uttered  it  as  a  genuine  deed,  and  placed  it  with  him  on  deposit  as  an 
equitable  mortgage  of  the  land,  in  security  for  his  board-bill. 

The  question  is  whether  the  act  constituted  the  crime  of  forgery, 
under  the  following  statute  : 

"  Every  person  who  shall  falsely  make,  or  assist  to  make,  deface, 
destroy,  alter,  forge,  or  counterfeit,"  etc.,  "  any  record,  deed,  will, 
codicil,  bond,"  etc.;  "or  any  person  who  shall  utter,  or  publish  as 
true,  any  such  instrument,  knowing  the  same,"  etc.,  "with  intent 
to  defraud,"  etc.,  "shall  be  deemed  guilty  of  foi-gery."  2  R.  S. 
p.  412,  §  30. 

The  deed  was  deposited  for  boarding  already  had,  not  to  secure  the 
price  of  future  boarding ;  nor  did  the  depositor  board,  or,  at  the  time 
of  the  deposit,  intend  to  board  longer  with  Lesman,  as  the  latter  well 
knew. 

The  indictment  contains  but  a  single  count,  charges  the  uttering  of 
the  deed  to  Lesman,  and  speciall}'  avers  the  intent,  in  so  doing,  to  have 
been  to  defraud  him. 

We  think  the  case  is  not  made  out.  No  fraud  appears  to  have  been 
perpetrated  upon  Lesman.  The  debt  already  existing  was  not  cancelled, 
but  remained  due,  and  the  right  to  enforce  payment  of  it  left  unim- 
paired. No  new  credit  from  Lesman  was  obtained  upon  the  deed.  He 
was  in  no  worse  situation  after  taking  the  deed  than  before. 

Had  Colvin  been  indicted  for  the  forger}-,  with  intent  generally  to 
defraud,  such  an  indictment  might,  probably,  have  been  sustained 
against  him.     Sec  Wilkinson  v.  The  State,  10  lud.  R.  372. 


-^QQ2  LASCELLES   V.    STATE.  [CHAP.  XVII. 

COMMONWEALTH   v.   HENRY. 

Supreme  Judicial  Court  of  Massachusetts.     1875. 

[Reported  118  lUass.  460.] 

Devens,  J.^  The  last  sentence  of  the  instruction  given  b}-  the  judge, 
in  response  to  the  request  of  the  defendant,  "  that  if  the  defendant 
sicrned  the  name  of  J.  C.  Hill  to  said  note  without  the  authority  of  said 
mil,  and  passed  it  as  the  note  of  J.  C.  Hill,  expecting  to  be  able  to 
meet  it  when  due,  it  would  be  a  forgery,"  would  undoubtedly,  if  it 
stood  alone,  be  a  defective  statement  of  the  law.  But  it  is  not  to  be 
separated  from  the  sentence  which  precedes  it,  which  distinctly  states 
that  there  must  be  an  intent  to  defraud,  and,  as  thus  connected,  the 
obvious  meaning  of  the  instruction,  and  so  it  must  have  been  under- 
stood by  the  jury,  was  that  if  the  defendant  signed  the  note  under  the 
circumstances  supposed,  intending  thereby  to  defraud,  this  would  be  a 
foro-erv,  even  if  he  expected  to  be  able  to  meet  the  note  when  due. 
The  subject  to  which  the  request  of  the  defendant  was  apparently  in- 
tended to  call  the  attention  of  the  presiding  judge,  was  the  effect  of  his 
possession  of  the  means  and  of  his  intention  to  take  up  the  note  when 
due,  and  in  relation  to  this  the  statement  of  the  law  was  correct.  The 
intention  of  one  who  utters  a  forged  note  to  take  it  up  at  maturity,  and 
the  possession  of  means  which  will  enable  him  to  do  so,  do  not  rebut 
the  inference  of  intent  to  defraud,  which  is  necessarily  drawn  from 
knowingly  uttering  it  for  value  to  one  who  believes  it  to  be  genuine, 
nor  deprive  the  transaction  of  its  criminal  character.  Commonwoalth 
V.  Tenney,  97  Mass.  50. 

Exceptions  overruled. 


LASCELLES   v.    STATE. 

Supreme  Court  of  Georgia.     1892. 

[Reported  90  Ga.  347.] 

The  indictment  charged  that  Sidney  Lascelles  did  falseh*  and  fraud- 
ulently draw,  make  and  forge  a  certain  bill  of  exchange  (setting  it  out) 
in  the  fictitious  name  of  Walter  S.  Beresford,  when  his  real  and  true 
name  was  Sidney  Lascelles,  with  intent  then  and  there  to  defraud 
Hamilton  &  Company,  a  mercantile  house,  etc.  The  bill  of  exchange 
purported  to  be  a  check  for  two  hundred  pounds  on  a  London  bank  in 
favor  of  Hamilton  &  Co.,  signed  "  Walter  S.  Beresford."  ^ 

1  Only  so  much  of  the  opinion  as  discusses  the  intent  to  defraud  is  giren.  —  Ed. 
^  Only  so  much  of  the  case  as  discusses  the  question  of  the  signing  by  defendant  of 
a  name  previously  assumed  by  him  is  given.  —  Ed. 


CHAP.  XVII.]  LASCELLES   V.   STATE.  1063 

Lumpkin,  J.  .  .  .  Several  grounds  of  the  motion  for  a  new  trial  are 
based  upon  the  failure  and  refusal  of  the  court  to  charge,  in  effect,  that 
if  the  name  signed  by  the  accused,  although  not  his  own,  was  one  which 
he  had  been  accustomed  to  employ  and  under  which  he  had  done  busi- 
ness, the  jur}'  could  not  convict  him.  It  was  insisted  that,  in  order  to 
constitute  forgery,  the  name  must  have  been  assumed  for  the  sole 
purpose  of  defrauding  the  persons  alleged  to  have  been  defrauded. 
We  think  it  immaterial  for  what  purpose  the  name  was  originally 
assumed  and  used,  if  it  is  shown  that  in  the  instance  in  question  it  was 
used  to  defraud.  It  was  a  fictitious  name,  within  the  meaning  of  the 
statute  (Code,  §  4453),  if  the  accused  gave  it  a  fictitious  character 
which  was  calculated  and  intended  to  deceive  b}'  imparting  an  apparent 
value  to  the  writing  which  might  not  otherwise  attach  to  it  in  the  minds 
of  the  persons  with  whom  the  accused  was  dealing.  Where  one  has 
been  accustomed  to  use  a  certain  assumed  name,  it  is  not  to  be  implied 
merely  from  his  signing  such  name  to  a  bill  of  exchange  or  other  writ- 
ing that  the  purpose  is  to  defraud ;  it  is  not  forger}'  unless  there  is 
something  else  besides  the  mere  signing  to  sliow  that  the  fictitious 
character  of  the  name  is  in  tliat  instance  an  instrument  of  fraud.  In 
the  case  of  Dunn,  1  Leach  C.  C.  57,  and  Reg.  v.  Martin,  49  L.  R., 
C.  C,  244,  cited  for  the  plaintiff  in  error,  there  was  no  such  showing 
made.  In  the  present  case,  however,  the  accused,  at  the  time  of  sign- 
ing the  writing,  gave  a  fictitious  character  to  the  name,  upon  the  faith 
of  which  he  induced  the  parties  with  whom  he  was  dealing  to  give 
value  for  the  writing.  According  to  his  representations  to  them,  it 
was  the  name  of  the  son  of  Lord  Beresford,  an  English  nobleman  of 
great  wealth,  who  was  about  to  deposit  in  bank  $25,000  in  the  name  of 
tliis  son.  When  Mr.  Hamilton  hesitated  about  paying  the  mone}',  the 
accused  said:  "Our  name  can  command  any  amount  of  money  in 
England."  He  not  only  used  an  assumed  name,  but,  in  connection 
with  the  signing  of  the  writing  in  question,  gave  a  fictitious  character 
to  the  name,  and  impersonated  that  character  in  order  to  obtain  money 
upon  the  writing,  which  he  might  not  have  gotten  if  he  had  simply  rep- 
resented himself  to  be  Walter  S.  Beresford,  or  had  stopped  with  the 
representations  he  had  made  as  to  his  own  wealth,  without  making 
these  additional  representations  as  to  his  relationship  and  standing. 
The  parties  with  whom  he  was  dealing  paid  over  their  money  to  the 
supposed  son  of  Lord  Beresford,  upon  the  faith  of  a  writing  executed 
by  the  accused  in  that  character,  when,  as  it  afterwards  turned  out,  the 
name  used  was  not  his  own  name,  and  Lord  Beresford  had  no  son  of 
the  name  used.  There  being  no  such  son,  it  was  not  a  case  of  person- 
ating another,  as  contemplated  by  section  4596  of  the  code.  It  was 
the  personating  of  a  fictitious  person,  and  this  is  of  the  essence  of  the 
offence  described  in  the  section  upon  which  the  fii'st  count  of  this 
indictment  was  based.     Code,   §  4453. 


1064 


THE   poulterer's   CASE.  [CIIAP.  XVIU. 


CHAPTER  XYIII. 
CKIiMINAL   CONSPIRACY. 


SECTION   I. 

Under  Ancient   Statutes. 

33  Edw.  I.  Stat.  2  ;  [Ordinance  of  Conspirators.]  Conspirators  be 
thev  that  do  confeder  or  bind  themselves  by  oath,  covenant,  or  other 
alliance,  that  every  of  them  shall  aid  and  bear  the  other  falsely  and 
nialicionsly  to  indict,  or  cause  to  indict,  or  falsely  to  move  or  maintain 
pleas  ;  and  also  such  as  cause  children  within  age  to  appeal  men  of 
felony,  whereby  they  are  imprisoned  and  sore  grieved  ;  and  such  as 
retain  men  in  the  country  with  liveries  or  fees  for  to  maintain  their 
malicious  enterprises  and  to  drown  the  truth  ;  and  this  extendeth  as 
well  to  the  takers,  as  to  the  givers.  And  stewards  and  bailills  of  great 
lords,  which  by  their  seigniory,  office,  or  power,  undertake  to  bear  or 
maintain  quarrels,  pleas,  or  debates  that  concern  other  parties  than 
such  as  touch  the  estate  of  their  lords  or  themselves.  This  ordinance 
and  Hnal  definition  of  conspirators  was  made  and  accorded  by  the  King 
and  his  Council  m  his  Parliament  the  thirty-third  year  of  his  reign. 


THE  POULTERER'S  CASE. 
Star  Chamber.     1611. 

[Reported  9  Coke  S.-J  b] 

Mich.  8  Jac.  Regis,  the  case  between  Stone,  plaintiff,  and  Ralph 
Waters,  Henry  Bate,  J.  Woodbridge,  and  many  other  poulterers  of 
London,  defendants,  for  a  combination,  confederacy,  and  agreement 
betwixt  them  falsly  and  maliciously  to  charge  the  plaintiff  (who  had 
married  the  widow  of  a  poulterer  in  Gracechurch  Street)  with  the 
robbery  of  the  said  Ralph  Waters,  supposed  to  be  committed  in  the 
county  of  Essex,  and  to  procure  him  to  be  indicted,  arraigned, 
adjudged,  and  hanged,  and  in  execution  of  this  false  conspiracy,  they 
procured  divers  warrants  of  justices  of  peace,  by  force   whereof  Stone 


Sl^CT.  I.j  THE    poulterer's    CASE.  1065 

was  apprehended,  examined,  and  bound  to  appear  at  the  assizes  in 
Essex  ;  at  which  assizes  the  defendants  did  appear  and  preferred  a 
bill  of  indictment  of  robbery  against  the  said  plaintiff;  and  the  justices 
of  assize  hearing  the  evidence  to  the  grand  jur\-  openly  in  court,  they 
perceived  great  malice  in  the  defendants  in  the  prosecution  of  the 
cause  ;  and  upon  the  whole  matter  it  appeared,  that  the  plaintiff  the 
whole  day  that  Waters  was  robbed,  was  in  London,  so  that  it  was 
impossible  that  he  committed  the  robbery,  and  thereupon  the  grand 
inquest  found  ig)ioramus.  And  it  was  moved  and  strongly  urged  by 
the  defendants'  counsel,  that  admitting  this  combination,  confederacy, 
and  agreement  between  them  to  indict  the  plaintiff  to  be  false,  and 
malicious,  that  yet  no  action  lies  for  it  in  this  court  or  elsewhere,  for 
divers  reasons.  1.  Because  no  writ  of  conspiracy  for  the  part}'  grieved, 
or  indictment  or  other  suit  for  the  King  lies,  but  where  the  part}' 
grieved  is  indicted,  and  legitimo  modo  acquletatus,  as  the  books  are 
F.  N.  B.  114  b ;  6  E.  3,  41  a ;  24  E.  3,  34  b ;  43  E.  3,  Conspiracy  11; 
27  Ass.  p.  59  ;  19  H.  6,  28  ;  21  H.  6,  26  ;  9  E.  4,  12,  &c.  2.  Every  one 
who  knows  himself  guilty  raa>',  to  cover  their  offences,  and  to  terrify 
or  discourage  those  who  would  prosecute  the  cause  against  them,  sur- 
mise a  confederacy,  combination,  or  agreement  betwixt  them,  and  by 
such  means  notorious  offenders  will  escape  unpunished,  or  at  the  least, 
justice  will  be  in  danger  of  being  perverted,  and  great  offences  smoth- 
ered, and  therefore,  they  said,  that  there  was  no  precedent  or  warrant 
in  law  to  maintain  such  a  bill  as  this  is.  But  upon  good  consideration, 
it  was  resolved  that  the  bill  was  maintainable ;  and  in  this  case  divers 
points  were  resolved.^ 

3.  It  is  to  be  observed  that  there  was  means  by  the  common  law 
before  indictment  to  protect  the  innocent  against  false  accusations,  and 
to  deliver  him  out  of  prison.  .  .  .  And  it  is  true  that  a  writ  of  con- 
spiracy lies  not,  unless  the  party  is  indicted,  and  legitimo  i7iodo  acqide- 
tatus,  for  so  are  the  words  of  the  writ ;  but  that  a  false  conspiracy 
betwixt  divers  persons  shall  be  punished,  although  nothing  be  put  in 
execution,  is  full  and  manifest  in  our  books;  and  therefore  in  27  Ass. 
p.  44,  in  the  articles  of  the  charge  of  inquiry  by  the  inquest  in  the 
King's  Bench,  there  is  a  nota,  that  two  were  indicted  of  confederacy, 
each  of  them  to  maintain  the  other,  whether  their  matter  be  true,  or 
false,  and  notwithstanding  that  nothing  was  supposed  to  be  put  in  exe- 
cution, the  parties  were  forced  to  answer  to  it,  because  the  thing  is 
forbidden  by  the  law,  which  are  the  very  words  of  the  book  ;  which 
proves  that  such  false  confederacy-  is  forbidden  by  the  law,  although  it 
was  not  put  in  use  or  executed.  So  there  in  the  next  article  in  the 
same  book,  inquirj'  shall  be  of  conspirators  and  confederates,  who 
agree  amongst  themselves,  &c.  falsly  to  indict,  or  acquit,  &c.  the  man- 
ner of  agreement  betwixt  whom,  which  proves  also,  that  confederacy 
to  indict  or  acquit,  although  nothing  is  executed,  is  punishable  b}-  law  : 
and  there  is  another  article  concerning  conspiracy  betwixt  merchants, 

1  The  first  two  poiuts,  uot  relating  to  the  Law  of  Conspiracy,  are  omitted 


IQQQ  THE   poulterer's   CASE.  [CIIAP.  XVIII. 

and  in  these  cases  the  conspiracy  or  confederacy  is  punishable, 
although  the  conspiracy  or  confederacy  be  not  executed  ;  and  it  is  held 
in  19  R.  2,  Brief  S26,  a  man  shall  have  a  writ  of  conspiracy,  although 
they  do  nothing  but  conspire  together,  and  he  shall  recover  damages, 
and  they  may  be  also  indicted  thereof.  Also  the  usual  commission  of 
oj-er  and  terminer  gives  power  to  the  commissioners  to  inquire,  &c.  (h 
omnibus  coadunationihus,  confcvderationibus,  etfahis  alligantiis  ;  and 
coadunatio  is  a  uniting  of  themselves  togethei-,  confiederatio  is  a  com- 
bination amongst  them,  and  falsa  idligaiUia  is  a  false  binding  each  to 
the  other,  by  bond  or  promise,  to  execute  some  unlawful  act :  in  these 
cases  before  the  unlawful  act  executed  the  law  punislics  the  coaduna- 
tion,  confederacy,  or  false  alliance,  to  the  end  to  prevent  the  unlawful 
act,  qtcia  quando  aliquid  proliihetur,  prohibelur  et  id  per  quod perven- 
itur  ad  illud :  et  affectus  jyunitur  licet  non  seqnatur  cffcctiis  ;  and  in 
these  cases  the  connnou  law  is  a  law  of  mercy,  for  it  prevents  the 
malignant  from  doing  mischief,  and  the  innocent  from  suffering  it. 
Hil.  37  II.  8,  in  the  Star  Chamber  a  priest  was  stigmatized  with  F.  and 
A.  in  his  forehead,  and  set  u^xju  the  pillory  in  Cheapsidc,  with  a 
written  paper, /or /riZse  accusation.  M.  3  &  4  Ph.  &  Ma.,  one  also  for 
the  like  cause /ia7  stif/maticus  with  F.  &  A.  in  the  check,  with  such 
superscription  as  is  aforesaid.  "  Vide  Proverb'  1,  ^Si  te  lactarerint 
peccatores  et  dixerint,  veni  nobiscum  id  insidicmur  sani/uini,  abscon- 
damus  tendiculas  contra  insontem  frustra,  &c.  omnem  pretiosam  sub- 
stantiam  reijerienms  et  implebimxis  donuis  7iostras  spoliis,  &c.  Fill 
mi,  ne  ambules  cum  eis,  c£-c.  j^edes  enim  eorum  ad  malum  cto'rujit,  et 
festinant  ut  effundant  sanguinem."  And  afterward  upon  the  hearing  of 
the  case,  and  upon  pregnant  proofs,  the  defendants  were  sentenced 
for  the  said  false  confederacy  by  fine  and  imprisonment.  Nota,  reader, 
these  confederacies,  punishable  by  law,  before  they  are  executed,  ought 
to  have  four  incidents:  1.  It  ought  to  be  declared  by  some  manner  of 
prosecution,  as  in  this  case  it  was,  either  b}-  making  of  bonds,  or 
promises  one  to  the  other ;  2.  It  ought  to  be  malicious,  as  for  unjust 
revenge,  &c.  3.  It  ought  to  be  false  against  an  innocent:  4.  It  ought 
to  be  out  of  court  voluntarily. 


SECT.  IL]  KEX   V.    EDWARDS.  1067 

SECTION  II. 
Conspiracy  in  General, 

REX  V.  EDWARDS. 
King's  Bench.     1724. 

[Reported  8  Modern,  320.] 

The  defendants  were  indicted,  for  that  they,  pe?-  conspirationem 
inter  eos  hahitam,  gave  tiic  husband  money  to  marry  a  poor  helpless 
-woman,  who  was  an  inhabitant  in  the  parish  of  B.  and  incapable  of 
marriage,  on  purpose  to  gain  a  settlement  for  her  in  the  parish  of  A. 
where  the  man  was  settled. 

It  was  moved  to  quash  this  indictment,  because  it  is  no  crime  to 
marry  a  woman  and  give  her  a  portion  ;  and  the  justices  are  not  proper 
judges  what  woman  is  capable  of  a  husband,  neither  have  they  any 
jurisdiction  in  conspiracies. 

It  was  insisted  on  the  other  side,  that  there  is  a  crime  set  forth  in 
this  indictment,  which  is  a  conspiracy  to  charge  a  parish,  &lc.  and  a 
conspiracy  to  do  a  lawful  act,  if  it  be  for  a  bad  end,  is  a  good  founda- 
tion for  an  indictment.  An  indictment  for  a  conspiracy  to  charge  a 
man  to  be  the  father  of  a  bastard-child,  was  held  good,  Temberley  v. 
Child,  1.  Sid.  68.  s.  c.  1  Lev.  62;  Rex  v.  Armstrong,  1  Vent.  304, 
though  fornication  is  a  spiritual  offence ;  because  the  Court  of  King's 
Bench  has  cognizance  of  every  unlawful  act  by  which  damages  may 
ensue.  So  an  information  for  a  conspiracy  to  impoverish  the  farmers 
of  the  excise,  was  held  good. 

To  which  it  was  answered,  that  those  were  conspiracies  to  do  unlaw- 
ful acts  ;  but  it  was  a  good  act  to  provide  a  husband  for  this  woman. 

The  Court.  The  quashing  indictments  is  a  discretionary  power  of 
the  court,  but  in  this  case  the  defendant  has  not  showed  anything  to 
induce  the  court  to  quash  the  indictment ;  and  if  the  matter  be  doubt- 
ful, the  defendant  must  plead  or  demur  ;  but  indictments  for  conspira- 
cies are  never  quashed. —  A  bare  conspiracy'  to  do  a  lawful  act  to  an 
unlawful  end,  is  a  crime,  though  no  act  be  done  in  consequence 
thereof,  Reg.  v.  Best,  2  Ld.  Ray.  1167;  s.  c.  6  Mod.  185;  but  if  the 
fault  in  the  indictment  be  plain  and  apparent,  it  is  quashed  for  that 
reason,  and  the  party  shall  not  be  put  to  the  trouble  to  plead  or  demur. 
Suppose  there  is  a  conspiracy  to  let  lands  of  ten  pounds  a  year  value 
to  a  poor  man,  in  order  to  get  him  a  settlement,  or  to  make  a  certificate 
man  a  parish-officer,  or  a  conspiracy  to  send  a  woman  big  of  a  bastard- 
child  into  another  parish  to  be  delivered  there,  and  so  to  charge  that 
parish  with  the  child ;  certainly  these  are  crimes  indictable.  But  in 
this  indictment  it  is  not  set  forth,  that  the  woman  was  likely  to  be 


jQgg  EEX  V.  TURNER.  [CHAP.  XYIII. 

charo-eable  to  the  parish.  As  to  the  objection,  that  the  sessions  liave 
„o  iurisdiction  in  conspiracy,  the  contrary  is  true  ;  they  have  no  juris- 
diction in  perjury  at  common  law,  but  by  the  statute  they  have  ;  and 
they  have  no  jurisdiction  to  indict  for  forgery,  but  certainly  they  have 
jurisdiction  de  conspirationibus.  Rex  v.  Rispal,  3  Burr.  132U  ;  and  such  a 
person  as  this  defendant  is  was  punished  by  indictment  at  common  law.^ 
But  in  the  Trinity  Term  following  judgment  was  given  for  the 
defendant,  because  it  was  not  averred  in  the  indictment,  that  the 
woman  was  last  legally  settled  in  the  parish  of  B.,  but  only  that  she 
was  au  inhabitant  there. 


REX  V.  TURNER. 
King's  Bench.     1811. 

{Reported  13  East,  228.] 

Tins   was   an  indictment  for  a  conspiracy,   which  stated  that  the 
defendants  unlawfully  and  wickedly  devising  and  intending  to  injure, 
oppress,  and  aggrieve  T.  Goodlake,  of  Letcombe  Regis  in  the  county 
of  Berks,  Esquire,  on  the  24th  of  November,  oUth  Geo.  3,  with   force 
and  arms,  at  East  Challow  in  the   county  aforesaid,  unlawfully  and 
wickedly  did  conspire,  combine,  confederate,  and   agree  U^gether,  and 
witli  divers  other  persons  unknown,  to  go  into  a  certain  preserve  for 
hares  at  Letcombe  Regis  aforesaid,  in  the  county  aforesaid,  belonging 
to  the  said  T.  G.,  without  the  leave  and  against  the  will  and  consent 
of  the  said  T.  G.,  to  snare,  take,  kill,  destroy,  and   carry  away  the 
hares  in  the  said  preserve  then  being,  and  to  procure  divers  bludgeons 
and  other  offensive   weapons,  and  to  go    to  the   said  preserve  armed 
therewith    for    the    purpose    of   oi)posing    any   per^^ons    who    should 
endeavor  to  apprehend  or  obstruct  or  prevent  them  in  and  from  curry- 
ing into  execution  their  unlawful  and  wicked  purposes  aforesaid  ;  and 
that  the  said  defendants,  in  pursuance  of  and  according  to  the  conspir- 
acy, combination,  confederacy,  and  agreement  aforesaid,  so  as  afore- 
said before  had,  afterwards,  to  wit,  on  the  said  day,  &c.,  about  the 
hour  of  12  in  the  night  of  the  same  day,  with  force  and  arms,  at  East 
Challow  aforesaid,  in   the  county  aforesaid,   unlawfully  and  wickedly 
did  procure  divers  large  bludgeons,  and  other  offensive  weapons,  and 
did  go  to  the  said  preserve  of  the  said  T.  G.  armed  therewith,  for  the 
purpose  of  opposing  any  persons  who  should  endeavor  to  apprehend, 
obstruct,  or  prevent  them  in  and  from  carrying   into  cxecuUon   their 
unlawful  and   wicked  purposes  aforesaid.     And  the  said  defendants, 

1  It  is  said,  s.  c.  1  Sess.  Cases,  336,  that  the  court  left  the  defendants  to  demur  or 
plead  to  it,  as  they  should  think  fit;  and  s.  c.  I  Stra.  707,  that  on  a  demurrer  to  this 
mdictmeut.  judgment  was  given  for  the  defendant,  because  it  is  not  au  offence 
indictable. 


SECT.  II.]  KEX    V.    TURNER.  1069 

being  so  armed  as  aforesaid,  in  further  execution  of  tlieir  unlawful  and 
wicked  i)urposes  aforesaid,  then  and  there  did  set  divers,  to  wit,  100 
snares,  for  the  i)urpose  and  with  the  intent  to  take,  kill,  destroy,  and 
carry  away  the  hares  in  the  sa=d  preserve  then  being ;  in  contempt  of 
the  king  and  his  laws,  to  the  evil  example  of  others,  to  the  great 
damage  of  the  said  T.  G.,  and  against  the  peace,  etc. 

After  a  verdict  of  guilty,  it  was  moved  in  the  last  term,  by  Jervis,  to 
arrest  the  judgment  for  the  insufficiency  of  the  charge,  which  was  only 
tliat  of  an  agreement  to  commit  a  mere  trespass  upon  property,  and  to 
set  snares  for  hares,  and  was  not  an  indictable  offence,  but  at  most 
only  an  injury  of  a  private  nature,  proiiibited  sub  modo,  under  a  pen- 
alty. And  2  Hawk.  P.  C.  c.  25,  s.  4,  was  referred  to.  Another 
objection  was  taken,  that  the  place  where  the  offence  was  committed 
was  not  alleged  with  sufficient  certainty  and  precision. 

Gleed  now  opposed  the  rule,  and  endeavored  to  sustain  the  indict- 
ment upon  the  authority  of  2  Hawk.  P.  C.  c.  72,  s.  2,  where  it  is  said 
that  all  confederacies  whatsoever  wrongfully  to  prejudice  a  third  per- 
son are  highly  criminal  at  common  law  ;  as  where  several  confederate 
to  maintain  one  another  in  any  matter  whether  it  be  true  or  false.  The 
cases  also  show  that  it  is  equally  an  offence  to  combine  to  do  a  lawful 
act  by  unlawful  means,  or  to  an  unlawful  end,  as  to  do  an  act  in  itself 
unlawful ;  as  in  the  instance  of  workmen  conspiring  together  to  raise 
their  wages,  The  King  v.  The  Journeymen  Tailors  of  Cambridge,  8 
Mod.  11,  or  parish  officers  conspiring  to  marry  a  helpless  pauper  into 
another  parish,  to  settle  her  there  and  rid  themselves  of  her  mainte- 
nance. The  King  r.  Edwards  and  Others,  8  Mod.  320.  And  in  all 
cases  of  unlawful  conspiracy,  the  mere  unlawful  agreement  to  do  the 
act,  though  it  be  not  afterwards  executed,  constitutes  the  offence ; 
according  to  Rex  v.  Armstrong  and  Others,  1  Ventr.  304,  and  Rex  v. 
Rispal,  3  Burr.  1320,  and  1  W.  Black.  368.  In  this  latter  case  the 
indictment  for  conspiring  to  charge  a  man  with  a  false  fact,  and 
exacting  money  from  him  under  pretence  of  stifling  the  charge,  was 
sustained  ;  though  the  fact  imputed,  which  was  merely  that  of  taking 
hair  out  of  a  bag  belonging  to  the  defendant  Rispal,  did  not  import  in 
itself  to  be  any  offence.  [Lord  Ellenborough,  C.  J.  All  the  cases  in 
conspiracy  proceed  upon  the  ground  that  the  object  of  the  combination 
is  to  be  effected  by  some  falsity  ;  insomuch  that  in  Tailor  and  Tow- 
lin's  case  in  Godb.  444,  it  was  held  necessary  in  conspiracy  to  allege 
the  matter  to  he  false  et  malitiose.  By  the  old  law  indeed  the  offence 
was  considered  to  consist  in  imposing  b}'  combination  a  false  crime 
upon  a  person.  But  are  you  prepared  to  show  that  two  unqualified 
persons  going  out  together  by  agreement  to  sport  is  a  public  offence?] 
Modern  cases  have  carried  the  offence  further  than  some  of  the  old 
authorities,  such  as  The  King  v.  Eccles  and  Others,  where  the  defend- 
ants were  convicted  upon  a  charge  of  conspiring  together  by  indirect 
means  (not  stating  what  those  means  were)  to  prevent  a  person  from 
carrying  on  his  trade.     And  in  The  King  v.  Spragge  and  Others,  2 


1070  KEX   V.   PYWELL.  [chap.  XVIII. 

Burr.  993,  which  charged  the  defendants  with  a  conspiracy  to  indict 
and  prosecute  W.  G.  for  a  crime  liable  by  law  to  be  capitally  pun- 
ished, and  that  in  pursuance  of  such  conspiracy  they  did  afterwards 
indict  him  ;  one  of  the  objections  was,  that  the  charge  was  only  of  a 
conspiracy  to  indict,  not  of  a  conspiracy  to  indict  falsely  ;  but  it  was 
overruled. 

Lord  Ellenborough,  C.  J.  That  was  a  conspirac}'  to  indict  another 
of  a  capital  crime  ;  which  no  doubt  is  an  offence.  And  the  case  of 
The  King  v.  Eccles  and  Others  was  considered  as  a  conspiracy  in 
restraint  of  trade,  and  so  far  a  conspiracy  to  do  an  unlawful  act  affect- 
ing the  public.  But  I  should  be  sorry  that  the  cases  in  conspiracy 
against  individuals,  which  have  gone  far  enough,  should  be  pushed  still 
farther :  I  should  be  sorr^'  to  have  it  doubted  whether  persons  agree- 
ino-  to  go  and  sport  upon  another's  ground,  in  other  words,  to  commit 
a  civil  trespass,  should  be  thereby  in  peril  of  an  indictment  for  an 
offence  which  would  subject  them  to  infamous  punishment. 

Per  Curiam.  Rule  absolute} 


REX   V.   PYWELL. 
Westminster  Sittings.     1816. 

[Reported  1  Starkie,  402  ] 

This  was  an  indictment  against  the  defendants  for  a  conspirac}'  to 
cheat  and  defraud  General  Maclean,  by  selling  him  an  unsound  horse. 

It  appeared  that  the  defendant  Pywell  had  advertised  the  sale  of 
horses,  undertaking  to  warrant  their  soundness.  Upon  an  application 
by  General  Maclean  at  Pywell's  stables,  Budgory,  another  of  the  de- 
fendants, stated  to  him  that  he  had  lived  with  the  owner  of  a  horse 
which  was  shown  to  him,  and  that  he  knew  the  horse  to  l)e  perfectly 
sound,  and  as  the  agent  of  Pywell,  he  warranted  him  to  be  sound. 
General  Maclean  purchased  the  horse,  and  took  the  following  receipt : 

"  Received  of Maclean,  Esq.,  the  sum  of  fifty  guineas,  for  a  geld- 
ing warranted  sound,  to  be  returned  if  not  approved  of  within  a  week." 

1 "  After  the  most  careful  and  elaborate  consideration  of  the  cases,  I  am  satisfied 
that  Rex  v.  Turner  is  not  hxw."  LoRn  Campbell,  C.  J.,  in  Reg.  v.  Rowlands,  5  Co.\ 
436,  490.  "The  King  r.  Turner,  13  East,  231,  to  say  the  least  of  it,  is  an  odd  case. 
Confederates  armed  with  clubs  to  beat  down  opposition,  entered  a  man's  preserve  in 
the  night  to  take  and  carrj'  away  his  hares;  and  Lord  EUenborongli  called  this  'an 
agreement  to  go  and  sport  on  another's  ground,'  in  other  words,  '  to  commit  a  civil 
ti-cspass'!  It  would  be  a  curious  thing  to  know  what  he  would  have  called  an  agree- 
ment to  steal  a  man's  pigs  or  to  rob  his  henroost.  In  its  mildest  aspect,  the  entry  into 
the  preserve  with  bludgeons  was  a  riot,  which,  it  appears  by  a  note  in  tlie  second  vol- 
ume of  Mr.  Chitty's  Criminal  Law,  page  50(1,  may  be  a  subject  of  conspiracy." 
Gibson.  C.  J.,  in  Mifflin  v.  Com.,  5  W.  &  S.  4G1.  463. —  Ed. 


SECT.  II.]  RE-GINA   V.   WARBUUTON.  '  1071 

It  was  discovered,  very  soon  after  the  sale,  that  the  animal  was 
nearly  worthless.  The  prosecutors  were  proceeduig  to  give  evidence 
of  the  steps  taken  to  return  the  gelding,  when  — 

Lord  Ellenbouough  intimated  that  the  case  did  not  assume  the 
shape  of  a  conspiracy  ;  the  evidence  would  not  warrant  any  proceeding 
be\  ond  that  of  an  action  on  the  warranty,  for  the  breach  of  a  civil  con^ 
tract.  If  this  (he  said)  were  to  be  considered  to  be  an  indictable 
offence,  then  instead  of  all  the  actions  which  had  been  brought  on  war- 
ranties, the  defendants  ought  to  have  been  indicted  as  cheats.  And 
that  no  indictment  in  a  case  like  this  could  be  maintained,  without 
evidence  of  concert  between  the  parties  to  effectuate  a  fraud. 

The  defendants  were  accordingly  acquitted. 

The  Attorneij-  General  and  Andrews  for  the  prosecution. 

Nolan  and  Spankie  for  the  defendants. 


REGINA   V.   WARBURTON. 

Crown  Case  Reserved.     1870. 

[Reported  L.  R.  1  C.  C.  R.  274.] 

Case  stated  by  Brett,  J. :  — 

Indictment,  amongst  other  counts,  that  the  prisoner  had  unlawfully 
conspired  with  one  Joseph  Warburton  and  one  W.  H,  Pepys,  by  divers 
subtle  means  and  devices,  to  cheat  and  defraud  the  prosecutor,  S.  C. 
Lister. 

At  the  trial  at  the  summer  assizes,  in  1870,  for  the  West  Riding  of 
Yorkshire,  at  Leeds,  it  was  found  that  the  prisoner  and  Lister  were 
in  1864  in  partnership,  and  carried  on  a  part  of  the  partnership  busi- 
ness at  Urbigau,  in  Saxony,  by  there  selling  patent  machines  ;  that  the 
prisoner  had  given  notice  according  to  the  terms  of  the  partnership 
agreement  for  a  dissolution  of  the  partnership  between  himself  and  Lis- 
ter;  and  that  upon  such  dissolution  an  account  was  to  be  taken  accord- 
ing to  the  partnership  agreement  of  the  partnership  property,  and  that 
according  to  it  such  property  would  be  divided  on  such  dissolution  in 
certain  proportions  between  the  prisoner  and  Lister  after  payment  of 
partnership  liabilities  ;  and  that  the  prisoner,  in  order  to  cheat  Lister, 
had  agreed  with  his  brother,  Joseph  Warburton,  who  managed  the 
partnership  business  at  Urbigau,  and  with  Pepys,  who  resided  at  Co- 
logne, to  make  it  appear  by  documents,  purporting  to  have  passed 
between  Pepys  and  Joseph  Warburton,  and  by  entries  in  the  partner- 
ship books  or  accounts,  made 'under  the  superintendence  of  Joseph 
Warburton,  that  Pepys  was  a  creditor  of  the  firm  for  moneys  advanced  ; 
and  that,  by  reason  of  such  documents  and  entries,  certain  partnership 
property  was  to  be  withdrawn  and  to  be  handed  to  Pepys  or  otherwise 


1072  REGINA   V.   WARBURTON.  [CHAP.  XVIII. 

abstracted  or  kept  back  so  as  to  be  divided  between  the  prisoner  and 
Joseph  Warburton  and  Pepys,  to  the  exclusion  of  Lister  from  any  inter- 
est or  advantage  in  or  from  or  in  respect  of  it. 

The  jury,  upon  tliis  evidence,  found  the  prisoner  guilty  of  the  con- 
spiracy charged,  and  rightly  so  found  if  in  point  of  law  such  an  agree- 
ment made  by  a  partner  with  such  an  intent  to  defraud  bis  partner  of 
partnersliip  property  and  to  exclude  him  entirely  from  any  interest  in 
or  advantage  from  it  on  such  an  occasion,  that  is  to  say,  on  the  taking 
of  an  account  for  the  puri)Ose  of  dividing  the  partnersliip  property  on  a 
dissolution  of  the  partnership,  by  means  of  false  entries  in  the  partner- 
ship books,  and  false  documents  purporting  to  have  passed  with  a  sup- 
posed creditor  of  the  firm,  is  a  conspiracy  for  which  a  prisoner  can  be 
criminally  convicted. 

The  offence,  if  it  were  one,  was  fully  completed  before  the  passing 
of  31  &  32  Vict.  c.  116,  by  which  a  partner  can  be  criminally  convicted 
for  feloniously  stealing  partnership  property. 

The  question  for  the  opinion  of  the  court  was  whether  the  verdict 
could  be  sustained  so  as  to  support  a  conviction  for  conspiracy  in  point 
of  law. 

Waddy  (  Whitaker  with  him)  for  the  prisoner.  To  constitute  a  con- 
spiracy there  must  be  an  agreement  to  do  an  illegal  act  or  to  do  a  legal 
act  by  illegal  means.  See  Russell  on  Crimes,  4th  cd.  vol.  iii.  p.  116. 
Here  the  acts  agreed  upon,  although  doubtless  immoral,  are  not  illegal. 
If  the  agreement  had  been  carried  out,  the  prisoner  could  not  have 
been  sued  at  law  by  Lister,  nor  could  he  have  been  indicted  for  doing 
the  agreed  acts.  Lindlcy  on  Partnership,  2d  cd.  vol.  ii.  p.  856.  It  is 
not  an  indictable  offence  for  one  partner  to  obtain  some  of  the  partner- 
ship money  from  the  other  partners  by  means  of  a  fraudulent  misstate- 
ment of  existing  facts.  Reg.  r.  P^vans,  Leigh  «fe  Cave,  252  ;  32  L.  J. 
(M.  C.)  88.  The  acts  contemplated  by  tlie  agreement  were,  therefore, 
neither  actionable  nor  criminal. 

[CocKBURN,  C  J.  Even  assuming  that  no  action  or  indictment  would 
lie  for  such  acts,  the  acts  are  wrongful  nevertheless,  and  there  is  a 
remedy,  viz.,  b}'  proceedings  in  equity.] 

An  act  which  merely  gives  a  right  to  proceed  in  equity  is  not  an 
illegal  act  within  the  meaning  of  the  definitions  of  conspirac}'. 

3IaHle,  Q.  C.  (Nathan  with  him),  for  the  prosecution  was  not  called 
upon. 

CocKBURN,  C.  J.  It  has  been  doubted  sometimes  whether  the  law  of 
England  does  not  go  too  far  in  treating  as  conspiracies  agreements  to 
do  acts  which,  if  done,  would  not  be  criminal  offences.  This  ques- 
tion does  not,  however,  arise  here,  as  no  one  would  wish  to  restrict  the 
law  so  that  it  should  not  include  a  case  like  the  present.  It  is  sufficient 
to  constitute  a  conspiracy  if  two  or  more  pei'sons  combine  by  fraud  and 
false  pretences  to  injure  another.  See  Russell  on  Crimes,  4th  ed. 
vol.  iii.  p.  116.  It  is  not  necessary  in  order  to  constitute  a  conspiracy 
that  the  acts  agreed  to  be  done  should  be  acts  which  if  done  would  be 


SECT.  II.]  COMMONWEALTH   V.   PRIUS.  1073 

criminal.  It  is  enough  if  the  acts  agreed  to  be  done,  although  not 
criminal,  are  wrongful,  i.  e.,  amount  to  a  civil  wrong.  Here  there  was 
undoubtedly  an  agreement  with  reference  to  the  division  of  the  partner- 
ship property  or  of  the  partnership  profits.  It  is  equally  clear  that  the 
agreement  was  to  commit  a  civil  wrong,  because  the  agreement  was  to 
deprive  the  prisoner's  partner  by  fraud  and  false  pretences  of  his  just 
share  of  the  propert}-  or  profits  of  the  partnership.  A  civil  wrong  was 
therefore  intended  to  Lister.  The  facts  of  this  case  thus  fall  within 
the  rule  that  when  two  fraudulentl3-  combine,  the  agreement  may  be 
criminal,  although  if  the  agreement  were  carried  out  no  crime  would  be 
committed,  but  a  civil  wrong  only  would  be  inflicted  on  a  third  party. 
In  this  case  the  object  of  the  agreement  was,  perhaps,  not  criminal. 
It  is  not  necessary  to  decide  whether  or  not  it  was  criminal ;  it  was, 
however,  a  conspiracy,  as  the  object  was  to  commit  a  civil  wrong  by 
fraud  and  false  pretences,  and  I  think  that  the  conviction  should  be 
affirmed. 

Chaknell  and  Cleasby,  BB.,  Keating  and  Brett,  JJ.,  concurred. 

Conviction  affirmed. 


COMMONWEALTH   u.    PRIUS. 
Supreme  Judicial  Court  of  Massachusetts.     1857. 

[Reported  9  Graij,  127.] 

The  second  count  of  this  indictment  alleged  that  the  defendants,  on 
the  1st  of  March,  1856,  owning  a  stock  of  goods  in  Lowell  as  partners, 
and  having  insurance  thereon  against  fire  by  certain  insurance  com- 
panies named  in  the  indictment,  amounting  in  all  to  the  sum  of  $10,000, 
"  did  then  and  there  corrupth',  wickedly,  and  unlawfully  confederate, 
agree,  combine,  and  conspire  together,  to  insure  and  cause  to  be  in- 
sured on  said  stock"  certain  other  sums,  amounting  to  $10,000  more, 
in  other  companies  named,  "  by  then  and  there  falsely  pretending  that 
said  stock  so  by  said  firm  kept  and  used  in  their  said  business  was  then 
and  there  of  a  much  greater  value  than  twenty  thousand  dollars  ;  and 
as  a  part  of  said  unlawful  agreement"  the  defendants  "  did  then  and 
there  corruptly,  wickedly,  and  unlawfulh'  confederate,  agree,  combine, 
and  conspire  together  to  obtain  from  all  said  insurance  companies  as 
and  for  a  loss  to  a  large  amount,  to  wit,  twenty  thousand  dollars,  by 
means  of  false  pretences  of  a  loss  thereafterward  to  happen,  with  de- 
sign, under  pretence  of  a  loss,  to  cheat  and  defraud  all  said  insurance 
companies  and  each  one  of  them  of  their  monevs  by  means  of  said 
false  pretences  ;  against  the  peace  of  said  Commonwealth,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided." 

The  defendants,  being  convicted  in  the  Court  of  Common  Pleas  on 
this  count,  moved  in   arrest  of  judgment,  that  no  offence  was  alleged 

68 


1074 


SMITH   V.   PEOPLE.  [CHAP.  XVIII. 


therein.  Sanger,  J.,  overruled  the  motion,  and  the  defendants  alleged 
exceptions. 

T.  Wentworth  &  P.  Haggerty,  for  the  defendants. 

J.  H.  Clifford  (Attorney-General),  for  the  Commonwealth. 

BiGELOW,  J.  The  second  count  in  tiie  indictment,  on  which  alone 
the  defendants  were  found  guilty,  is  fatally  defective.  It  was  not  a 
crime  in  tiie  defendants  to  procure  an  over-insurance  on  their  stock  in 
trade.  It  was  at  most  only  a  civil  wrong.  The  charge  of  a  conspiracy 
to  do  so  does  not  therefore  amount  to  a  criminal  offence.  It  was  not  a 
combination  to  effect  an  unlawful  purpose,  and  no  unlawful  means  by 
which  the  purpose  was  to  be  effected  are  set  out  in  the  indictment. 

The  residue  of  the  count  is  too  uncertain  and  indefinite  to  support  a 
conviction.  It  amounts  to  nothing  more  than  an  allegation  of  a  con- 
spiracy to  cheat  and  defraud  the  insurance  comi)anies,  which  is  clearly 
insufficient.  Commonwealth  v.  Shedd,  7  Cush.  514.  The  means  by 
which  this  purpose  was  to  be  effected  are  not  stated  with  such  precision 
and  certainty  as  to  show  that  they  were  unlawful.  The  false  pretences 
by  which  money  was  to  be  obtained  from  the  insurance  companies  are 
not  set  out;  and  the  charge  of  a  conspiracy  ''to  obtain  money  by 
means  of  false  pretences  of  a  loss  thereafterward  to  happen,"  is  alto- 
gether too  general  and  vague  a  statement  to  come  within  the  rules  of 
criminal  pleading.^  Judgment  arrested. 


SMITH   V.   PEOPLE. 
Supreme  Court  of  Illinois.     1860. 

[Reported  25  Illinois,  17.] 

Tins,  indictment,. filed  at  the  April  Term,  a.  d.  1860,  of  the  Re- 
corder's Court,  of  the  city  of  Chicago,  contains  two  counts  for 
conspiracy. 

The  first  count  charges,  that  Charles  H.  Schwab,  John  B.  Smith,  and 
Mary  C.  Allen,  on  the  first  day  of  March,  a.  d.  1860,  at  Chicago,  did, 
between  themselves,  unlawfully  conspire,  combine,  confederate,  and 
agree  together,  wickedly,  knowingly,  and  designedly,  to  procure,  by  false 
pretences,  false  representations,  and  other  fraudulent  means,  one  Lizzie 
M.  Engles  to  have  ilhcit  carnal  connection  with  a  man,  to  wit,  with 
the  said  Charles  II.  Schwab,  one  of  the  defendants  aforesaid. 

The  second  count  charges,  that  the  defendants  did,  then  and  there, 
(on  the  same  day)  unlawfully  between  themselves,  combine,  confederate, 
and  agree  together  wickedly,  knowingly,  and  designedly,  to  cause  and 
procure,  by  false  pretences,  false  representations,  and  other  fraudulent 
means,  one  Lizzie  M.  Engles,  then  and  there  a  minor  female  child,  of 

1  But  see  Com.  v.  Fuller,  132  Mass.  5G3.  —  Ed. 


SECT.  II.]  SMITH    V.   PEOPLE.  1075 

the  age  of  sixteen,  to  have  illicit  carnal  connection  with  a  man,  to  wit, 
with  the  aforesaid  Charles  H,  Schwab. 

To  this  indictment  the  plaintiffs  in  error  pleaded  not  guilty,  in  proper 
person.^ 

The  jury  returned  with  a  verdict  of  guilty  as  to  all  of  the  defendants. 
And  the  defendants  Smith  and  Schwab  moved  in  arrest  of  judgment, 
which  motion  was  overruled.  The  Recorder  then  proceeded  to  sentence 
defendants  Smith  and  Schwab  each  to  the  City  Bridewell,  for  the  term 
of  six  months,  or  to  pay  a  fine  of  $100,  and  one-third  costs  of  prosecu- 
tion, and  the  defendant  Allen  to  be  imprisoned  in  the  City  Bridewell 
three  months. 

The  errors  assigned  were  that :  There  is  no  indictable  offence  set 
forth  in  the  indictment.  The  court  erred  in  refusing  to  arrest  the 
judgment." 

Caton,  C.  J.  To  attempt  to  define  the  limit  or  extent  of  the  law  of 
conspiracy,  as  deducible  from  the  English  decisions,  would  be  a  difficult 
if  not  an  impracticable  task,  and  we  shall  not  attempt  it  at  the  present 
time.  We  may  safely  assume  that  it  is  indictable  to  conspire  to  do  an 
unlawful  act  by  any  means,  and  also  that  it  is  indictable  to  conspire  to 
do  any  act  b}'  unlawful  means.  In  the  former  case  it  is  not  necessary 
to  set  .out  the  means  used,  while  in  the  latter  it  is,  as  they  must  be 
shown  to  be  unlawful.  But  the  great  uncertainty,  if  we  may  be  allowed 
the  expression,  is  as  to  what  constitutes  an  unlawful  end,  to  conspire 
to  accomplish  which  is  indictable  without  regard  to  the  means  to  be 
used  in  its  accomplishment.  And  again,  what  means  are  unlawful  to 
accomplish  a  purpose  not  in  itself  unlawful.  As  this  indictment  falls 
under  the  first  class,  we  shall  confine  ourselves  to  that.  If  the  term 
unlawful  means  criminal,  or  an  offence  against  the  criminal  law,  and  as 
such  punishable,  then  the  objection  taken  to  this  indictment  is  good, 
for  seduction  b}  our  law  is  not  indictable  and  punishable  as  a  crime. 
But  by  the  common  law  governing  conspiracies  the  term  is  not  so 
limited,  and  numerous  cases  are  to  be  found  wliere  convictions  have 
been  sustained  for  conspiracy  to  do  unlawful  acts,  although  those  acts 
are  not  punishable  as  crimes.  Nor  yet  would  it  be  quite  safe  to  say 
that  the  term  unlawful  as  here  used  includes  every  act  which  violates 
the  legal  rights  of  another,  giving  that  other  a  right  of  action  for  a  civil 
remed}'.  And  we  are  not  now  prepared  to  say  where  the  line  can  be 
safely  drawn.  It  is  sufficient  for  the  present  case,  to  say  that  conspira- 
cies to  accomplish  purposes  which  are  not  by  law  punishable  as  crimes, 
but  which  are  unlawful  as  violative  of  the  rights  of  individuals,  and  for 
wliich  the  civil  law  will  afford  a  remedy  to  the  injured  party,  and  will 
at  the  same  time  and  by  the  same  process  punish  the  offender  for  the 
wrong  and  outrage  done  to  society,  by  giving  exemplary  damages, 
be3-ond  the  damages  actually  proved,  have  in  numerous  instances  been 
sustained  as  common  law  offences.    The  law  does  not  punish  criminally 

1  The  evidence  and  requests  to  charge  are  omitted. 
^  The  other  assignments  of  error  are  omitted. 


1076  SMITH  V.   PEOPLE.  [CHAP.  XVIIl. 

everv  unlawful  act,  although  it  may  be  a  grievous  offence  to  society. 
Ancf  in  determining  what  sort  of  conspiracies  may  or  may  not  be 
entered  into  without  committing  an  offence  punishable  by  the  common 
law,  regard  must  be  had  to  the  influence  wliieh  the  act,  if  done,  would 
actually  have  upon  society-,  without  confining  the  inquiry  to  the  question 
whether  the  act  might  itself  subject  the  offender  to  criminal  punishment. 
And  most  prominent  among  the  acts  branded  as  unlawful,  although  not 
punishable  as  crimes,  is  the  very  act,  to  accomplish  which  this  con- 
spiracy is  charged  to  have  been  entered  into.  It  is  more  destructive 
of  the  happiness  of  individuals  and  of  the  well-being  of  society,  ^lan 
very  many  others  which  are  punishable  as  crimes,  and  the  law  has  e^■er 
favored  its  punishment  by  exemplary  damages  to  the  parent,  guardian 
or  master  of  the  victim  of  seduction,  although  he  is  often  regarded  as 
the  injured  party  by  the  merest  technicality.  To  sa^-  that  it  is  innocent, 
or  not  a  crime,  for  parties  to  band  and  conspire  together  to  accomplish 
the  destruction,  by  seduction,  of  any  young  girl  in  the  community,  un- 
less it  can  be  shown  that  tlie  means  to  be  used  are  unlawful,  and  then 
bold  that  such  unlawful  means  must  of  themselves  be  criminal  and  pun- 
ishable as  such,  would  be  giving  a  legal  sanction  and  encouragement  to 
such  conspiracies.  Under  such  decisions  the  courts,  instead  of  being 
the  guardians  of  the  peace  and  hapi)iness  and  well-being  of  society, 
would  lend  their  sanction  to  its  worst  enemies.  If  there  be  any  act 
which  should  be  regarded  as  unlawful  in  the  sense  of  tlie  law  of  con- 
spiracy, but  which  is  not  punishable  as  a  crime,  it  is  this  very  act,  and 
so  it  has  been  and  ever  should  be  regarded  by  the  courts.  We  do  not 
hesitate  to  hold  that  a  consi)iracy  to  accomi)lish  such  an  object  as  this, 
whether  the  means  to  be  used  be  unlawful  of  criminal  or  not,  is  a  crime 
at  the  common  law,  and  that  it  is  the  duty  of  the  courts  to  protect 
society  against  such  conspiracies  by  their  punishment.  If  the  laws  of 
the  land  will  not  afford  such  protection,  then  individuals  will  protect 
themselves  by  violence,  for  it  is  not  in  human  nature  to  let  such 
offences  go  unpunislied  in  some  way.  Counsel  say,  in  argument,  that 
if  we  sustain  this  conviction  no  man  in  community  can  repose  in  secu- 
rity. We  answer,  no  man  who  will  enter  into  a  conspiracy  to  accom- 
plish so  nefarious  a  purpose  as  this,  should  be  allowed  to  repose  in 
security  ;  and  if  parties  who  thus  offend  are  allowed  to  do  so,  then 
innocent  and  useful  members  of  society  cannot.  We  hold  that  it  was 
not  necessary  to  show  that  the  means  to  be  used  by  the  conspirators 
were  unlawful  or  criminal. 

Tlie  objection  that  this  being  but  a  common  law  offence,  is  not  pun- 
ishable in  this  State,  where  we  have  a  criminal  code  defining  most 
criminal  offences  and  prescribing  their  punishment,  is  answered  by  the 
case  of  Johnson  v.  The  People,  22  III.  314.  It  is  there  shown,  that 
our  criminal  code  prescribes  punishment  for  offences  not  enumerated, 
which  can  mean  nothing  but  common  law  offences,  showing  conclusively 
that  it  was  not  the  intention  of  the  legislature  to  repeal  that  portion  of 
the  common  law  by  implication. 


SECT.  III.]     CONSPIRACY  AND  OTHER  OFFENCES  AGAINST  TRADE.     1077 

We  do  not  deem  it  necessary  to  review  the  instructions  in  detail. 
We  have  examined  them  and  the  questions  made  upon  them,  and  find 
no  error  committed  by  the  court  in  the  instructions ;  nor  do  we  think 
that  the  verdict  was  uusustained  by  the  proof.  The  judgment  is 
affirmed.  Judgment  affirmed. 


SECTION   III. 

Conspiracy  and  other  Offences  against  Trade. 

Ordinance  for  bakers,  &c.,  c.  10.'  Be  it  commanded  on  the  behalf  of 
our  Lord  the  King,  that  no  forestaller  be  suffered  to  dwell  in  any  town, 
which  is  an  open  oppressor  of  poor  people,  and  of  all  the  commonaltv, 
and  an  enemy  of  the  whole  shire  and  country,  which  for  greediness  of 
his  private  gain  doth  prevent  others  in  bu3ing  grain,  fish,  herring  or 
any  other  thing  to  be  sold  coming  by  land  or  water,  oppressing  the 
poor  and  deceiving  the  rich,  which  carrieth  awa}'  such  things,  intend- 
ing to  sell  them  more  dear ;  the  which  come  to  merchants  stranger  that 
bring  merchandise  offering  them  to  bu}-,  and  informing  them  that  their 
goods  might  be  dearer  sold  than  the}'  intended  to  sell,  and  an  whole 
town  or  a  country  is  deceived  by  such  craft  and  subtlet}'.  He  that  is 
convict  thereof  the  first  time  sliall  be  amerced,  and  shall  lose  the  thing 
so  bought,  and  that  according  to  the  custom  and  ordinance  of  the  town  ; 
he  that  is  convict  the  second  time  shall  have  judgment  of  the  pillor}' ; 
at  the  third  time  he  shall  be  imprisoned  and  make  fine  ;  the  fourth  time 
he  shall  abjure  the  town.  And  this  judgment  shall  be  given  upon  all 
manner  of  forestallers,  and  likewise  upon  them  that  have  given  them 
counsel,  help,  or  favor. 

1  Published  during  the  thirteenth  century  ;  the  exact  date  is  uncertain.  —  Ed. 


1078  ARTICLES   OF  INQUEST.  [CHAP.  XYIII. 

ARTICLES   OF   INQUEST. 
All  the  Justices.     1352. 

[Reported  Lib.  Assis.  138,  pi.  44.] 

These  are  the  articles  which  are  to  be  inquired  of  b}'  the  Inquest  of 
Office  in  the  King's  Bench,  summoned  to  inquire  of  homicides,  thieves, 
burners  of  houses,  ravishers  of  women,  and  of  all  manner  of  felons  and 
of  felonies,  and  their  receivers,  procurers,  and  maintainers,  as  well  in 
the  time  of  the  King's  father,  as  in  the  time  of  the  King  who  now  is,  of 
escapes  of  thieves,  &c.  .  .  . 

Likewise  of  those  who  bind  others  b}-  their  robes  or  fees  to  conceal 
the  truth,  and  to  maintain  their  evil  emprises,  «fec.  And  note,  that 
two  were  indicted  for  confederac}',  each  of  them  to  maintain  the  otiicr, 
whether  their  cause  were  true  or  false  ;  and  notwithstanding  nothing 
was  alleged  to  be  put  in  motion,  the  parties  were  held  to  answer, 
because  this  thing  is  forbidden  b}'  the  law,  &c. 

Likewise  of  conspirators,  and  confederates,  who  bind  themselves 
together  b}-  oath,  covenant,  or  some  otlier  alliance,  that  each  of  them 
will  aid  and  sustain  the  other's  emprise,  be  it  false' or  true;  and  who 
falsel}-  have  persons  indicted  or  acquitted,  or  falsely  bring  or  maintaiu 
pleas,  by  means  of  alliance,  &c.  .  .  . 

Likewise  of  forestallers  of  victual,  and  of  purveyors  of  victual  with- 
out being  duly  appraised  by  the  vill,  or  those  who  take  them  without 
making  a  bargain  with  the  persons  from  whom  they  take  them,  accord- 
ing to  the  statute  in  such  case  provided.  .  .  .  Likewise  of  merchants 
who  by  covin  and  alliance  among  themselves  from  year  to  year  put  a 
certain  price  on  wool  which  is  for  sale  in  the  country,  so  that  none  of 
them  will  bu}-  or  overbid  another  in  buying  wool  beyond  the  certain  price 
which  they  themselves  have  ordained  :  to  the  great  impoverishment  of 
the  people,  &c.  .  .   . 

Likewise  of  all  manner  of  oppressions  and  grievances  done  to  the 
people  of  our  Lord  the  King. 


SECT.  III.]  THE   LOMBARD'S   CASE.  1079 


THE  LOMBARD'S   CASE. 
London  Assizes.     1368. 

[Reported  Lib.  Assis.  276,  pi.  38.] 

A  Lombard  was  indicted  in  London  for  concealing  the  customs  of 
our  Lord  the  King,  and  for  divers  other  things  ;  and  presentment  was 
also  made  against  him,  that  he  had  procured  and  promoted  the  enhanc- 
ing of  the  price  of  merchandize.  And  judgment  for  him  was  pra3-ed 
because  this  was  not  forestalling,  nor  could  it  sound  in  forestalling  ; 
and  since  it  did  not  appear  from  the  presentment  that  an}'  wrong  was 
actually  done,  he  should  not  be  held  to  answer.  And  ?ion  allocatur ; 
for  Knivet  said,  that  certain  persons  (whom  he  named)  came  into  the 
neighborhood  of  Coteswold,  and  in  deceit  of  the  people  said  that  no 
wool  could  cross  the  sea  in  the  next  year,  there  were  so  many  wars  in 
those  parts ;  by  which  they  depressed  the  price  of  wool.  And  they 
were  brought  before  the  King's  Council,  and  could  not  deny  it ;  where- 
fore they  were  put  to  fine  and  ransom  before  the  King. 

And  so  in  this  case.     Wherefore  he  pleaded  not  guilty,  &c. 

Coke,  3rd  Institute,  196.  It  was  upon  conference  and  mature  delibera- 
tion resolved  by  all  the  justices,  that  any  merchant,  subject  or  stranger, 
bringing  victuals  or  merchandize  into  this  realme,  may  sell  them  in 
grosse ;  but  that  vendee  cannot  sell  them  againe  in  grosse,  for  then  he 
is  an  ingrosser  according  to  the  nature  of  the  word,  for  that  he  buy 
ingrosse  and  sell  ingrosse,  and  may  be  indicted  thereof  at  the  common 
law,  as  for  an  offence  that  is  7nahim  in  se.  2.  That  no  merchant  or 
other  may  buy  within  the  realme  any  victuall  or  other  merchandize  in. 
grosse,  and  sell  the  same  in  grosse  againe,  for  then  he  is  an  ingrosser,. 
and  punishable  ut  supra ;  for  by  this  means  the  prices  of  victuals  and 
other  merchandize  shall  be  inhaunced,  to  the  grievance  of  the  subject ; 
for  the  more  hands  they  passe  through,  the  dearer  they  grow,  for  every 
one  thirsteth  after  gaine,  viHosum  sitiunt  lucrum.  And  if  these  things 
were  lawfull,  a  riche  man  might  ingrosse  into  his  hands  all  a  commodity 
and  sell  the  same  at  what  price  he  will.  And  every  practice  or  device 
by  act,  conspiracy,  words  or  newes,  to  inhaunce  the  price  of  victuals  oi 
other  merchandize,  was  punishable  by  law  ;  and  they  relied  much  upon 
the  statute  aforesaid,  nullus  forstallarms,  &c.,  which  see  before  in 
this  chapter:  and  that  the  name  of  an  ingrosser  in  the  reigne  of 
H.  3  and  E.  1  was  not  known,  but  comprehended  within  this  word 
[forstallarius']  lucrum  sitiens  vitlosnm  ;  and  ingrossing  is  a  branch  of 
forestalling.  And  for  that  forstallarius  was  pauperum  depressor,  et 
totius  communitatis  et  patriae  2yubUctcs  inimicits,  he  was  punishable 
by  the  common  law. 

7  &  8  Vict.  c.  24,  sects.  1,  4.  Be  it  enacted,  &c.  .  .  .  that  after  the 
passing  of  this  Act  the  several  offences  of  badgering,  engrossing,  fore- 


2080  THE   LOMBARD'S   CASE.  [CHAP.  XVm. 

stallincr,  aud  regrating  be  utterly  taken  away  and  abolished,  and  that 
no  information,  indictment,  suit,  or  prosecution  shall  lie  either  at  com- 
mon law  or  by  virtue  of  any  statute,  or  be  commenced  or  prosecuted 
against  any  person  for  or  by  reason  of  any  of  the  said  offences  or 

supposed  offences.^  ,...,.»    ^ 

Provided  always,  and  be  it  enacted,  that  nothuig  in  this  Act  con- 
tained shall  be  construed  to  apply  to  the  offence  of  knowingly  and 
fraudulently  spreading  or  conspiring  to  spread  any  false  rumor,  with 
iitent  to  enhance  or  decry  the  price  of  an}-  goods  or  merchandize,  or  to 
the  offence  of  preventing  or  endeavoring  to  prevent  by  force  or  threats 
any  goods,  wares,  or  merchandize  being  brought  to  any  fair  or  market, 
but  that  every  such  offence  may  be  inquired  of,  tried,  and  punished  as 
if  this  Act  had  not  been  made. 

23  Ed.  3,  c.  1,  2.  [Statute  of  Laborers.]  Every  man  and  woman 
of  our  realm  of  England,  of  what  condition  he  be,  free  or  bond,  able  in 
body,  and  witliiii  tl^e  age  of  threescore  years,  not  living  in  merchandize, 
nor  exercising  any  craft,  nor  having  of  his  own  whereof  he  may  live, 
nor  proper  land,  about  whose  tillage  he  may  himself  occupy,  and  not 
serving  any  other,  if  he  in  convenient  service  (his  estate  considered)  be 
required  to  serve,  he  shall  be  bounden  to  serve  him  which  so  shall  him 
require.  And  take  only  tlie  wages,  livery,  meed,  or  salary,  which  were 
accustomed  to  be  given  in  the  places  where  he  owcth  to  serve,  the  xx 
year  of  our  reigne  of  England,  or  five  or  six  other  common  years  next 

before.  ...  • 

Item,  if  any  reaper,  mower,  or  other  workman  or  servant,  of  what 
estate  or  condition  that  he  be,  retained  in  any  man's  service,  do  dei)art 
from  the  said  service  without  reasonable  cause  or  licence,  before  the 
term  agreed,  he  shall  have  pain  of  imprisonment.  And  that  none  under 
the  same  pain  presume  to  receive  or  retain  any  such  in  his  service.* 

5  Eliz.  c.  4,  sects.  5,  6.  And  be  it  further  enacted,  that  no  person 
which  shall  retain  any  servant  shall  put  away  his  or  her  said  servant, 
and  that  no  person  retained  according  to  this  statute  shall  depart  from 
his  master,  mistress  or  dame,  before  the  end  of  his  or  her  term,  upon 
the  pain  hereafter  mentioned,  unless  it  be  for  some  reasonable  and 
sunicient  cause  or  matter  to  be  allowed  before  two  justices  of  peace,  or 
one  at  the  least,  within  the  said  county. 

And  that  no  such  master,  mistress  or  dame  shall  put  away  any  suc-h 
servant  at  the  end  of  his  term,  or  that  any  such  servant  shall  depart 
from  his  said  master,  mistress  or  dame  at  the  end  of  his  term,  without 
one  quarter's  warning  given  before  the  end  of  his  said  term,  either  by 
tlie  said  master,  mistress  or  dame,  or  servant,  the  one  to  the  other, 
upon  the  pain  hereafter  ensuing.^ 

1  See  Sect.  2  of  this  Act  for  a  list  of  the  statutes  dealing  witli  these  subjects.  —  En. 

2  This  statute  and  later  statutes  to  the  same  effect  were  modified  by  5  Elis 
e.  4.  — Ed. 

3  Repealed  38  &  39  Vict.  c.  86,  sect.  17,  —Ed. 


SECT.  III.]     REX   V.   JOURXEYMAN-TAILORS   OF   CAMBRIDGE.  1081 


REX  V.  JOURNEYMAN-TAILORS   OF   CAMBRIDGE. 
King's  Bench.     1721. 

[Reported  8  Modern,  10] 

One  Wise,  and  several  other  journeyman-tailors,  of  or  in  the  town  of 
Cambridge,  were  indicted  for  a  conspirac}-  amongst  themselves  to  raise 
their  wages,  and  were  found  guilty. 

It  was  moved  in  arrest  of  judgment  upon  several  errors  in  the  record. 

Tliirdly.^  No  crime  appears  upon  the  face  of  this  indictment,  for  it 
only  charges  them  with  a  conspiracy  and  refusal  to  work  at  so  much 
per  diem^  whereas  they  are  not  obliged  to  work  at  all  by  the  day  but  by 
the  year,  by  5  Eliz.  c.  4. 

It  was  answered,  that  the  refusal  to  work  was  not  the  crime,  but  the 
conspiracy  to  raise  the  wages. 

The  Court.  The  indictment,  it  is  true,  sets  forth  that  the  defend- 
ants refused  to  work  under  the  wages  which  they  demanded  ;  but  al- 
though these  might  be  more  than  is  directed  by  the  statute,  yet  it  is  not 
for  the  refusing  to  work  but  for  conspiring  that  they  are  indicted,  and 
a  conspiracy  of  any  kind  is  illegal  although  the  matter  about  which 
they  conspired  might  have  been  lawful  for  them,  or  any  of  them,  to  do, 
if  they  had  not  conspired  to  do  it,  as  appears  in  the  case  of  The  Tub- 
women  V.  The  Brewers  of  London. 

Fifthly.  This  indictment  ought  to  conclude  contra  fonnam  statuti  ; 
for  by  the  late  statute  7  Geo.  I.  c.  13,  journeymen-tailors  are  prohib- 
ited to  enter  into  any  contract  or  agreement  for  advancing  their  wages, 
&c.  And  the  statute  of  2  &  3  Edw.  VI.  c.  15,  makes  such  persons 
criminal. 

It  was  answered  that  the  omission  in  not  concluding  this  indictment 
contra  fonnam  statuti  is  not  material,  because  it  is  for  a  conspiracj-, 
which  is  an  offence  at  common  law.  It  is  true,  the  indictment  sets 
forth  that  the  defendants  refused  to  work  under  such  rates,  which  were 
more  than  enjoined  by  the  statute,  for  that  is  only  two  shillings  a 
day;  but  yet  these  words  will  not  bring  the  offence,  for  which  the 
defendants  are -indicted,  to  be  within  that  statute,  because  it  is  not  the 
denial  to  work  except  for  more  wages  than  is  allowed  by  the  statute, 
but  it  is  for  a  conspiracy  to  raise  their  wages,  for  which  these  defend- 
ants are  indicted.  It  is  true  it  does  not  appear  by  the  record  that  the 
wages  demanded  were  excessive,  but  that  is  not  material,  because  it 
ma}'  be  given  \n  evidence. 

The  Court.  This  indictment  need  not  conclude  contra  formam 
statuti,  because  it  is  for  a  conspiracy,  which  is  an  offence  at  common 
law. 

So  the  Judgment  was  confirmed  b}'  the  whole  court  quod  capiantur. 

1  The  first,  second,  and  fourth  objectious  are  omitted. 


1082 


COMMONWEALTH   V.   HUNT. 


[chap.  XVIII. 


COTkfMONWEALTH  v.  HUNT. 

Supreme  Judicial  Court  of  Massachusetts.     1842. 

[Reported  4  Metcalf,  111.] 

Shaw,  C.  J.  The  counsel  for  tlie  defendants  contended,  and  re- 
quested the  court  to  instruct  the  jmy,  that  the  indictment  did  not  set 
forth  any  agreement  to  do  a  criminal  act,  or  to  do  any  lawful  act  by 
any  specified  oriminal  means,  and  that  the  agreements  tlierein  set  forth 
did  not  constitute  a  conspirac}'  indictable  b^-  any  law  of  tiiis  Common- 
wealth. But  the  judge  refused  so  to  do,  and  instructed  the  jury,  that 
the  indictment  did,  in  his  opinion,  describe  a  confederacy  among  the 
defendants  to  do  an  unlawful  act,  and  to  effect  the  same  by  unlawful 
means ;  that  the  societj-,  organized  and  associated  for  the  purposes 
described  in  the  indictment,  was  an  unlawful  conspiracy,  against  the 
laws  of  this  Commonwealth;  and  that  if  the  jury  believed,  from  the 
evidence  in  the  case,  that  the  defendants,  or  any  of  them,  had  engaged 
in  such  a  confederacy,  they  were  bound  to  find  such  of  them  guilty. 

We  are  here  carefully  to  distinguish  between  the  confederacy  set 
forth  in  the  indictment,  and  the  confederacy  or  association  contained  in 
the  constitution  of  the  Boston  Journeymen  Bootmakers'  Societv,  as 
stated  in  the  little  printed  book,  which  was  admitted  as  evidence  on  the 
trial.  Because,  though  it  was  thus  admitted  as  evidence,  it  would  not 
warrant  a  conviction  for  anything  not  stated  in  the  indictment.  It 
was  proof,  as  far  as  it  went,  to  support  the  averments  in  tiie  indictment. 
If  it  contained  any  criminal  matter  not  set  forth  in  the  indictment,  it  is 
of  no  avail.  The  question  then  presents  itself  in  the  same  form  as  on 
a  motion  in  arrest  of  judgment. 

The  first  count  set  forth,  that  the  defendants,  with  divers  others 
unknown,  on  the  day  and  at  the  place  named,  being  workmen  and  jour- 
neymen, in  the  art  and  occupation  of  bootmnkers,  unlawfully,  perni- 
ciously and  deceitfully  designing  and  intending  to  continue,  keep  up, 
form,  and  unite  themselves,  into  an  unlawful  club,  society,  and  combina- 
tion, and  make  unlawful  by-laws,  rules,  and  orders,  among  themselves, 
and  thereby  govern  themselves  and  other  workmen,  in  the  said  art,  and 
unlawfully-  and  unjustl\-  to  extort  gi'eat  sums  of  money  bv  means 
thereof,  did  unlawfully  assemble  and  meet  together,  and  being  so 
assembled,  did  unjustly  and  corruptly  conspire,  combine,  confederate, 
and  agree  together,  that  none  of  them  should  thereafter,  and  that  none 
of  them  would,  work  for  any  master  or  person  whatsoever,  in  the  said 
art,  mystery,  and  occupation,  who  should  employ  any  workman  or  jour- 
neyman, or  other  person,  in  the  said  art,  who  was  not  a  member  of 
said  club,  society,  or  combination,  after  notice  given  him  to  discharge 
such  workmen,  from  the  employ  of  such  master ;  to  the  great  damage 
and  oppression,  etc. 

1  Part  only  of  the  opinion  is  given. 


SECT.  III.]  COMMONWEALTH   V.    HUNT.  1083 

Now  it  is  to  be  considered,  that  the  preamble  and  introdiictor}-  mat- 
ter in  the  indictment  —  such  as  unlawfully  and  deceitfully  designing  and 
inteniling  unjustly  to  extort  great  suras,  etc.  — is  mere  recital,  and  not 
traversable,  and  therefore  cannot  aid  an  imperfect  averment  of  the 
facts  constituting  the  description  of  the  offence.  The  same  may  be 
said  of  the  concluding  matter,  which  follows  the  averment,  as  to  the 
great  damage  and  oppression  not  onl}'  of  their  said  masters,  employing 
them  in  said  art  and  occupation,  but  also  of  divers  other  workmen  in 
tiie  same  art,  m\-stery,  and  occupation,  to  the  evil  example,  &c.  If  the 
facts  averred  constitute  the  crime,  these  are  properly  stated  as  the  legal 
inferences  to  be  drawn  from  them.  If  they  do  not  constitute  tlie  charge 
of  such  an  offence,  they  cannot  be  aided  by  these  alleged  consequences. 

Stripped  then  of  these  introductory  recitals  and  alleged  injurious 
consequences,  and  of  the  qualifying  epithets  attached  to  the  facts,  tiie 
averment  is  this  ;  that  the  defendants  and  others  formed  themselves 
into  a  society,  and  agreed  not  to  woric  for  any  person,  who  should 
employ-  any  journeyman  or  other  person,  not  a  member  of  such  society, 
after  notice  given  him  to  discharge  such  workman. 

The  manifest  intent  of  the  association  is,  to  induce  all  those  engaged 
in  the  same  occupation  to  become  members  of  it.  Such  a  purpose  is 
not  unlawful.  It  would  give  them  a  power  which  might  be  exerted  for 
useful  and  honorable  purposes,  or  for  dangerous  and  pernicious  ones. 
If  the  latter  were  the  real  and  actual  object,  and  susceptible  of  proof, 
it  should  have  been  specially  charged.  Such  an  association  might  be 
used  to  afford  each  other  assistance  in  times  of  povert}',  sickness,  and 
distress  ;  or  to  raise  their  intellectual,  moral,  and  social  condition  ;  or  to 
make  improvement  in  their  art ;  or  for  other  proper  purposes.  Or  the 
association  might  be  designed  for  purposes  of  oppression  and  injustice. 
But  in  order  to  charge  all  those,  who  become  members  of  an  association, 
with  the  guilt  of  a  criminal  conspiracy,  it  must  be  aA^erred  and  proved 
that  the  actual,  if  not  the  avowed  ol)ject  of  the  association,  was  crim- 
inal. An  association  may  be  formed,  the  declared  objects  of  which  are 
innocent  and  laudable,  and  yet  they  may  have  secret  articles,  or  an 
agreement  communicated  only  to  the  members,  by  which  they  are 
banded  together  for  purposes  injurious  to  the  peace  of  society  or  the 
rights  of  its  members.  Such  would  undoubtedly  be  a  criminal  conspir- 
acy, on  proof  of  the  fact,  however  meritorious  and  praiseworthy  the 
declared  oI)jects  might  be.  The  law  is  not  to  be  hoodwinked  by  color- 
able pretences.  It  looks  at  truth  and  realit}',  through  whatever  disguise 
it  ma}-  assume.  But  to  make  such  an  association,  ostensibly  innocent, 
the  subject  of  prosecution  as  a  criminal  conspirac}',  the  secret  agree- 
ment which  makes  it  so  is  to  be  averred  and  proved  as  the  gist  of  the 
offence.  But  when  an  association  is  formed  for  purposes  actuall}'  inno- 
cent, and  afterwards  its  powers  are  abused,  by  those  who  have  the  con- 
trol and  management  of  it,  to  purposes  of  oppression  and  injustice,  it 
will  be  criminal  in  those  who  thus  misuse  it,  or  give  consent  thereto, 
but  not  in  the  other  members  of  the  association.     In  this  case,  no  such 


1084 


COMMONWEALTH   V.   HUNT.  [CHAP.  XYIII. 


secret  agreement,  varying  the  objects  of  the  association  from  those 
avowed,  is  set  forth  in  this  count  of  the  indictment. 

Nor  can  we  perceive  that  the  objects  of  this  association,  whatever 
the3'  may  have  been,  were  to  be  attained  by  criminal  means.  The 
means  which  they  proposed  to  employ,  as  averred  in  this  count,  and 
which,  as  we  are  now  to  presume,  were  established  by  the  proof,  were, 
that  they  would  not  work  for  a  person,  who,  after  due  notice,  should 
employ  a  journeyman  not  a  member  of  their  society.  Supposing  the 
object  of  the  association  to  be  laudable  and  lawful,  or  at  least  not 
unlawful,  are  these  means  criminal?  The  case  supposes  that  these 
persons  are  not  bound  by  contract,  but  free  to  work  for  whom  they 
please,  or  not  to  work,  if  they  so  prefer.  In  this  state  of  things,  we 
cannot  perceive,  that  it  is  criminal  for  men  to  agree  together  to  exer- 
cise their  own  acknowledged  rights,  in  such  a  manner  as  best  to  sub- 
serve their  own  interests.  One  way  to  test  this  is,  to  consider  the 
effect  of  such  an  agreement,  where  the  object  of  the  association  is 
acknowledged  on  all  hands  to  be  a  laudable  one.  Suppose  a  class  of 
workmen,  impressed  with  the  manifold  cvilb  of  intemperance,  should 
agree  with  each  other  not  to  work  in  a  shop  in  which  ardent  spirit-was 
furnished,  or  not  to  work  in  a  shop  with  any  one  who  used  it,  or  not  to 
work  for  an  employer,  who  should,  after  notice,  employ  a  journeyman 
who  habitually  used  it.  The  consequences  might  be  the  same.  A 
workman,  who  should  still  persist  in  the  use  of  ardent  spirit,  would  find 
it  more  dhficult  to  get  employment ;  a  master  employing  such  an  one 
might,  at  times,  experience  inconvenience  in  his  work,  in  losing  the 
services  of  a  skilful  but  intemperate  workman.  Still,  it  seems  to  us, 
that  as  the  object  would  be  lawful,  and  the  means  not  unlawful,  such 
an  agreement  could  not  be  pronounced  a  crimiual  conspiracy. 

From  this  count  in  the  indictment,  we  do  not  understand  that  the 
agreement  was,  that  the  defendants  would  refuse  to  work  for  an  em- 
ployer, to  whom  they  were  bound  by  contract  for  a  certain  time,  in 
violation  of  that  contract ;  nor  tliat  they  would  insist  that  an  employer 
should  discharge  a  workman  engaged  by  contract  for  a  certain  time,  in 
violation  of  such  contract.  It  is  perfectly  consistent  with  everything 
stated  in  this  count,  that  the  effect  of  the  agreement  was,  that  when 
they  were  free  to  act,  they  would  not  engage  with  an  emplo}er  or  con- 
tinue in  his  employment,  if  such  employer  when  free  to  act  should 
engage  with  a  workman,  or  continue  a  workman  in  his  employment  not 
a  member  of  the  association.  If  a  large  number  of  men  engaged  for  a 
certain  time  should  combine  together  to  violate  their  contract  and  quit 
their  employment  together  it  would  present  a  very  different  question. 
Suppose  a  farmer  employing  a  large  number  of  men,  engaged  for  the 
year  at  fa'r  monthly  wages,  and  suppose  that  just  at  the  moment  that  his 
crops  were  ready  to  harvest,  they  should  all  combine  to  quit  his  service 
unless  he  would  advance  their  wages  at  a  time  when  other  laborers 
could  not  be  obtained.  It  would  surely  be  a  conspiracy  to  do  an 
unlawful  act,  though  of  such  a  character  that  if  done  by  an  individual 


SECT.  Ill]  COMMONWEALTH   V.   HUNT.  1085 

it  would  liiy  the  foundation  of  a  civil  action  only  and  not  of  a  criminal 
prosecution.  It  would  be  a  case  very  different  from  that  stated  in  this 
count. 

The  second  count,  omitting  the  recital  of  unlawful  intent  and  evil 
disposition,  and  omitting  the  direct  averment  of  an  unlawful  club  or  , 
society,  alleges  that  the  defendants  with  others  unknown  did  assemble, 
conspire,  confederate,  and  agree  together,  not  to  work  for  any  master 
or  person  who  should  employ  any  workman  not  being  a  member  of  a 
certain  club,  society,  or  combination,  called  the  Boston  Journeymen 
Bootmakers'  Society,  or  who  should  break  any  of  their  by-laws,  unless 
such  workmen  should  pay  to  said  club,  such  sum  as  should  be  agreed 
upon  as  a  penalty  for  the  breach  of  such  unlawful  rules,  etc. ;  and  that 
by  means  of  said  conspiracy  they  did  compel  one  Isaac  B.  Wait,  a  mas- 
ter cordwainer,  to  turn  out  of  his  employ  one  Jeremiah  Home,  a  jour- 
neyman boot-maker,  etc.  in  evil  example,  &c.  So  far  as  llie  averment 
of  a  conspiracy  is  concerned  all  the  remarks  made  in  reference  to  the 
first  count  are"^  equally  applicable  to  this.  It  is  simply  an  averment 
of  an  agreement  amongst  themselves  not  to  work  for  a  person  who 
should  employ  any  person  not  a  member  of  a  certain  association.  It 
sets  forth  no  illegal  or  criminal  purpose  to  be  accomplished,  nor  any 
illegal  or  criminal  means  to  be  adopted  for  the  accomplishment  of  any 
purpose.  It  was  an  agreement  as  to  the  manner  in  which  they  would 
exercise  an  acknowledged  right  to  contract  with  others  for  their  labor. 
It  does  not  aver  a  conspiracy  or  even  an  intention  to  raise  their  wages  ; 
and  it  appears  by  the  bill  of  exceptions  that  the  case  was  not  put  upon 
the  footing  of  a  conspiracy  to  raise  their  wages.  Such  an  agreement 
as  set  forth  in  this  count  would  be  perfectly  justifiable  under  the  recent 
English  statute  by  which  this  subject  is  regulated.  St.  6  Geo.  IV. 
c.  129.     See  Roscoe  Crim.  Ev.  (2d  Amer.  ed.)  368,  369. 

As  to  the  latter  part  of  this  count  which  avers  that  by  means  of  said 
conspiracy  the  defendants  did  compel  one  Wait  to  turn  out  of  his 
employ  one  Jeremiah  Home,  we  remark,  in  the  first  place,  that  as  the 
acts  done  in  pursuance  of  a  conspiracy,  as  we  have  before  seen,  are 
stated  by  way  of  aggravation,  and  not  as  a  substantive  charge  ;  if  no 
criminal  or  unlawful  conspiracy  is  stated,  it  cannot  be  aided  and  made 
good  by  mere  matter  of  aggravation.  If  the  principal  charge  falls  the 
aggravation  falls  with  it.     State  v.  Rickey,  4  Halst.  293. 

But  further,  if  this  is  to  be  considered  as  a  substantive  charge  it 
would  depend  altogether  upon  the  force  of  the  word  "compel,"  which 
may  be  used  in  the  sense  of  coercion,  or  duress,  by  force  or  fraud.  It 
would  therefore  depend  upon  the  context  and  the  connection  with  other 
words,  to  determine  the  sense  in  which  it  was  used  in  the  indictment. 
If,  for  instance,  the  indictment  had  averred  a  conspiracy  by  the  defend- 
ants to  compel  Wait  to  turn  Home  out  of  his  employment,  and  to 
accomplish  that  object  by  the  use  of  force  or  fraud,  it  would  have  been 
a  very  different  case  ;  especially  if  it  might  be  fairly  construed,  as  per- 
haps in  that  case  it  might  have  been,  that  Wait  was  under  obligation 


2QS6  COMMONWEALTH   V.   HUNT.  [CHAP.  XVIII. 

by  contract  for  an  unexpired  term  of  time  to  employ  and  pay  Home. 
As  before  remarked,  it  would  have  been  a  conspiracy  to  do  an  unlaw- 
ful, tliough  not  a  criminal  act,  to  induce  Wait  to  violate  his  engage- 
ment to  the  actual  injury  of  Home.  To  mark  the  difference  between 
the  case  of  a  journeyman  or  a  servant  and  master  mutually  bound  by 
contract,  and  the  same  parties  when  free  to  engage  anew,  I  should  have 
before  cited  the  case  of  the  Boston  Glass  Co.  v.  Binne^-,  4  Pick.  425. 
In  that  case  it  was  held  actionable  to  entice  another  person's  hired  ser- 
vant to  quit  his  employment  during  the  time  for  which  he  was  engaged  ; 
but  not  actionable  to  treat  with  such  hired  servant,  whilst  actually  hired 
and  employed  by  another,  to  leave  his  service  and  engage  in  the  emi)loy- 
rnent  of  the  person  making  the  proposal,  when  the  term  for  which  he  is 
engaged  shall  expire.  It  acknowledges  the  established  principle  that 
every  free  man,  whether  skilled  laborer,  mechanic,  farmer,  or  domestic 
servant,  maj-  work  or  not  work,  or  work  or  refuse  to  work  with  any 
company  or  individual,  at  his  own  option,  except  so  far  as  he  is  bound 
by  contract.  But  whatever  miglit  be  tlie  force  of  the  word  "  compel," 
unexplained  by  its  connection,  it  is  disarmed  and  rendered  liarmless  by 
the  precise  statement  of  the  means  by  wliich  such  compulsion  was  to 
be  effected.  It  was  the  agreement  not  to  work  for  him  by  which  they 
compelled  Wait  to  decline  employing  Home  longer.  On  both  of  these 
grounds  we  are  of  opinion  that  the  statement  made  in  this  second  count 
that  the  unlawful  agreement  was  carried  into  execution  makes  no 
essential  ditference  between  this  and  the  first  count. 

The  third  count,  reciting  a  wicked  and  unlawful  intent  to  impoverish 
one  Jeremiah  Home  and  liiuder  him  from  following  his  trade  as  a  boot- 
maker, charges  the  defendants,  with  others  Unknown,  with  an  unlawful 
conspiracy,  by  wrongful  and  indirect  means,  to  impoverish  said  Home, 
and  to  deprive  and  hinder  him  from  his  said  art  and  trade  and  getting 
his  support  thereby,  and  that  in  pursuance  of  said  unlawful  combina- 
tion, they  did  unlawfully  and  indirectly  hinder  and  prevent,  &c.  and 
greatl}'  impoverish  him. 

If  the  fact  of  depriving  Jeremiah  Hornc  of  the  profits  of  his  business 
by  whatever  means  it  might  be  done  would  be  unlawful  and  criminal,  a 
combination  to  compass  that  object  would  be  an  unlawful  conspiracy, 
and  it  would  be  unnecessary  to  state  the  means.  Such  seems  to  have 
been  the  view  of  the  court  in  The  King  /•.  Eccles,  3  Doug.  337,  though 
the  case  is  so  briefly  reported  tliat  the  reasons  on  which  it  rests  are  not 
ver}'  obvious.  The  case  seems  to  have  gone  on  the  ground  that  the 
means  were  matter  of  evidence  and  not  of  averment,  and  that  after 
verdict  it  was  to  be  presumed  that  the  means  contemplated  and  used 
were  such  as  to  render  the  combination  unlawful  and  constitute  a 
conspiracy. 

Suppose  a  baker  in  a  small  village  had  the  exclusive  custom  of  his 
neighborhood,  and  was  making  large  profits  b}'  the  sale  of  his  bread. 
Supposing  a  number  of  those  neiglibors,  believing  the  price  of  his  bread 
too  high,  should  propose  to  him  to  reduce  his  prices,  or  if  he  did  not 


SECT.  III.]  COMMONWEALTH   V.    HUNT.  1087 

that  the}-  would  hitvoduce  another  baker,  and  on  his  refusal  such  other 
baker  should  under  their  encouragement  set  up  a  rival  establishment, 
and  sell  his  bread  at  lower  prices,  the  effect  would  be  to  diminish  the 
profit  of  the  former  baker  and  to  the  same  extent  to  impoverish  him. 
And  it  might  be  said  and  proved  that  the  purpose  of  the  associates  was 
to  diminish  his  profits  and  thus  impoverish  him,  though  the  ultimate 
and  laudable  object  of  the  combination  was  to  reduce  the  cost  of  bread 
to  themselves  and  their  neighbors.  The  same  thing  ma}-  be  said  of  all 
competition  in  every  branch  of  trade  and  industry,  and  3-etit  is  through 
that  competition  that  the  best  interests  of  trade  and  industry  are  pro- 
moted. It  is  scarcely  necessary  to  allude  to  the  familiar  instances  of 
opposition  lines  of  conveyance,  rival  hotels,  and  the  thousand  other 
instances  where  each  strives  to  gain  custom  to  himself  by  ingenious 
improvements,  by  increased  industry,  and  by  all  the  means  by  which 
he  may  lessen  the  price  of  commodities,  and  thereby  diminish  the 
profits  of  others. 

"VVe  think,  therefore,  that  associations  may  be  entered  into,  the 
object  of  which  is  to  adopt  measures  that  may  have  a  tendency  to 
impoverish  another,  that  is,  to  diminish  his  gains  and  profits,  and  yet 
so  far  from  being  criminal  or  unlawful,  the  object  may  be  highly  meri- 
torious and  public  spirited.  The  legality  of  such  an  association  will 
therefore  depend  upon  the  means  to  be  used  for  its  accomplishment. 
If  it  is  to  be  carried  into  effect  by  fair  or  honorable  and  lawful  means, 
it  is,  to  say  the  least,  innocent ;  if  by  falsehood  or  force,  it  may  be 
stamped  with  the  character  of  conspiracy.  It  follows  as  a  necessary 
consequence  that  if  criminal  and  indictable  it  is  so  by  reason  of  the 
criminal  means  intended  to  be  employed  for  its  accomplishment ;  and 
as  a  further  legal  consequence,  that  as  the  criminality  will  depend  on 
the  means  those  means  must  be  stated  in  the  indictment.  If  the  same 
rule  were  to  prevail  in  criminal  which  holds  in  civil  proceedings,  that 
a  case  defectively  stated  may  be  aided  by  a  verdict,  then  a  court  might 
presume  after  verdict  that  the  indictment  was  supported  by  proof  of 
criminal  or  unlawful  means  to  eflfect  the  object.  But  it  is  an  estab- 
lished rule  in  criminal  cases  that  the  indictment  must  state  a  complete 
indictable  ofTence,  and  cannot  be  aided  by  the  proof  offered  at  the  trial. 
The  fourth  count  avers  a  conspiracy  to  impoverish  Jeremiah  Home 
without  stating  any  means  ;  and  the  fifth  alleges  a  conspiracy  to  impov- 
erish employers  by  preventing  and  hindering  them  from  employing 
persons  not  members  of  the  Bootmakers'  Society,  and  these  require  no 
remarks  which  have  not  been  already  made  in  reference  to  the  other 
counts. 

One  case  was  cited  which  was  supposed  to  be  much  in  point,  and 
which  is  certainly  deserving  of  great  respect.  The  People  v.  Fisher, 
14  Wend.  1.  But  it  is  obvious  that  this  decision  was  founded  on  the 
construction  of  the  revised  statutes  of  New  York  by  which  this  matter 
of  conspiracy  is  now  regulated.  It  was  a  conspiracy  by  journeymen  to 
raise  their  wao-es,  and  it  was  decided  to  be  a  violation  of  the  statutes 


1088 


COMMONWEALTH   V.   HUNT.  [CHAP.  XVIII. 


making  it  criminal  to  commit  any  act  injurious  to  trade  or  commerce. 
It  hasrthereforc,  an  indirect  application  only  to  the  present  case. 

A  caution  on  this  subject  suggested  by  the  commissioners  for  revis- 
ing the  statutes  of  New  York  is  entitled  to  great  consideration.  They 
are  alluding  to  the  question  whether  the  law  of  conspiracy  should  be 
so  extended  as  to  embrace  every  case  where  two  or  more  unite  in  some 
fraudulent  measure  to  injure  an  individual  by  means  not  in  themselves 
criminal.  ''The  great  difficulty,"  say  they,  'Mn  enlarging  the  defini- 
tion of  this  offence  consists  in  the  inevitable  result  of  depriving  the 
courts  of  equity  of  the  most  effectual  means  of  detecting  fraud  by  com- 
pelling a  discovery  on  oath.  It  is  a  sound  principle  of  our  institutions 
that  no  man  shall  be  compelled  to  accuse  himself  of  any  crime,  which 
ought  not  to  be  violated  in  any  case.  Yet  such  must  be  the  result  or 
the  ordinary  jurisdiction  of  courts  of  equity  must  be  destroyed  by 
declaring  any  private  fraud  when  committed  by  two,  or  any  concert  to 
commit  it  criminal."  9  Cow.  625.  In  New  Jersey  in  a  case  which  was 
much  considered,  it  was  held  that  an  indictment  will  not  lie  for  a  con- 
spiracy to  commit  a  civil  injury.  State  v.  Rickey,  1  llalst.  293.  And 
such  seemed  to  be  the  opinion  of  Lord  EUcnborough  in  The  King  v. 
Turner,  13  East,  231,  in  which  he  considered  that  the  case  of  The 
King  V.  Eccles,  3  Doug.  337,  though  in  form  an  indictment  for  a  conspir- 
acy to  prevent  an  individual  from  carrying  on  his  trade,  yet  in  sub- 
stance was  an  indictment  for  a  conspiracy  in  restraint  of  trade  affecting 
the  public. 

It  appears  by  the  bill  of  exceptions  that  it  was  contended  on  the  part 
of  the  defendants  that  this  indictment  did  not  set  forth  any  agreement 
to  do  a  criminal  act,  or  to  do  any  lawful  act  by  criminal  means,  and  that 
the  agreement  therein  set  forth  did  not  constitute  a  consjjiracy  indict- 
able by  the  law  of  this  state,  anil  that  the  court  was  requested  so  to 
instruct  the  jury.  This  the  court  declined  doing,  but  instructed  the 
jury  that  the  indictment  did  describe  a  confederacy  among  the  defend- 
ants to  do  an  unlawful  act,  and  to  effect  the  same  by  unlawful  means  ; 
that  the  society,  organized  and  associated  for  tlie  purposes  described 
in  the  indictment,  was  an  unlawful  conspiracy  against  the  laws  of  this 
state,  and  that  if  the  jury  believed  from  the  evidence  that  the  defi'ud- 
ants  or  any  of  them  had  engaged  in  such  confederacy  they  were  bound 
to  find  such  of  them  guilty. 

In  this  opinion  of  the  learned  judge  this  court  for  the  reasons  stated 
cannot  concur.  Whatever  illegal  purpose  can  be  found  in  the  constitu- 
tion of  the  Bootmakers'  Society,  it  not  being  clearly  set  forth  in  the 
indictment,  cannot  be  relied  upon  to  support  this  conviction.  So  if  any 
facts  were  disclosed  at  the  trial,  which  if  properly  averred  would  have 
given  a  different  character  to  the  indictment,  they  do  not  appear  iu  tlie 
bill  of  exceptions,  nor  could  they  after  verdict  aid  the  indictment.  But 
looking  solely  at  the  indictmen*,  disregarding  the  qualifying  epithets, 
recitals,  and  immaterial  allegations,  and  confining  ourselves  to  facts  so 
averred  as  to  be  capable  of  being  traversed  and  put  in  issue,  we  cannot 


SECT.  III.]  STATE   V.   DONALDSON.  1089 

perceive  that  it  charges  a  criminal  conspiracy  punishable  b}-  law.     The 
exceptions  must,  therefore,  be  sustained,  and  the  judgment  arrested. 

Several  other  exceptions  were  taken  and  have  been  argued  ;  but  this 
decision  on  the  main  question  has  rendered  it  unnecessary  to  consider 
them. 


STATE   V.   DONALDSON. 
Supreme  Court  of  New  Jersey.     1867. 

[Reported  32  N.  J.  Law,  151.] 

This  was  a  motion  to  quash  an  indictment  charging  a  conspiracy, 
which  had  been  brought  into  this  court  by  certiorari. 

The  substantial  facts  constituting  the  alleged  crime  were  these,  viz., 
that  the  defendants,  and  divers  other  evil  disposed  persons,  etc.,  being 
journeymen  workmen  employed  by  Richmond  Ward,  John  C.  Little, 
and  others,  who  then  and  there  were  engaged  together  in  the  manu- 
facture of  patent  leather,  and  as  curriers,  maliciously,  to  control,  in- 
jure, terrify,  and  impoverish  their  said  employers,  and  force  and  compel 
them  to  dismiss  from  their  said  employment  certain  persons,  to  wit, 
Charles  Beggan  and  William  Pendergrast,  then  and  there  retained  by 
their  said  employers  as  journeymen  and  workmen  for  them,  and  to 
injure  said  Charles  and  William,  and  without  having  any  lawful  cause 
of  objection  to  said  Charles  and  William,  unlawfully  did  conspire,  com- 
bine, confederate,  and  agree  together  to  quit,  leave,  and  turn  out  from 
their  said  employment,  until  and  unless  the  said  last-mentioned  jour- 
neymen and  workmen  should  be  dismissed  by  their  said  employers. 
The  indictment  then  further  charged,  that  in  pursuance  of  such  con- 
spiracy, they  gave  notice  of  their  agreement  to  their  said  employers, 
and  required  them  to  discharge  the  said  Charles  and  William,  which 
being  refused,  they  quitted  their  said  employment,  and  remained  away 
until  their  demand  was  complied  with. 

The  motion  was  argued  before  the  Chief  Justice,  and  Justices 
Bedle  and  Dalrimple. 

For  the  motion ;  T.  JV.  3fc  Carter. 

For  the  state,  C.  Parker. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J.  There  is,  perhaps,  no  crime,  an  exact  definition  of 
which  it  is  more  difficult  to  give  than  the  offence  of  conspiracy.  Tlio.t 
a  combination  of  persons  to  effect  an  end,  itself  of  an  indictable  nature, 
will  constitute  this  crime,  is  clear ;  nor  is  there  any  more  doubt  that, 
though  the  purpose  the  confederacy  is  designed  to  accomplish  be  not 
criminal,  yet  if  the  means  adopted  be  of  an  indictable  character,  this 
offence  is  likewise  committed.  Thus  far  the  limits  are  cleai-ly  defined, 
and  embrace,  without  exception,  all  cases  which  fall  within  them.    But 

69 


1090  STATE   V.   DONALDSON.  [CHAP.  XVIIL 

when  we  proceed  one  step  beyond  the  lines  thus  marked  out,  the  cases 
which  have  been  adjudged  to  be  conspiracies  appear  to  stand  apart  by 
themselves,  and  are  devoid  of  that  analogy  to  each  other  which  would 
render  them  susceptible  of  classification.  It  is  certain,  however,  that 
there  are  a  number  of  cases,  in  which  neither  the  purpose  intended  to 
be  accomplished  nor  the  means  designed  to  be  used  were  criminal, 
which  have  been  regarded  to  be  indictable  conspiracies.  And  yet  it  is 
obvious  that,  in  "the  nature  of  things,  it  cannot  be  every  collusion 
between  two  or  more  persons  to  do  an  unlawful  act,  or  an  indifferent 
act  by  unlawful  means,  which  will  constitute  an  offence  of  a  public 
nature ;  for  if  this  were  so,  a  large  portion  of  the  transactions  which, 
in  the  ordinary*  course  of  litigation  between  part^-  and  part}',  conies 
before  the  courts,  would  assume  a  criminal  aspect,  in  which  the  state 
would  have  an  interest.  Indeed,  I  think  it  ma^'  be  said  that  there  are, 
comparative!}',  but  few  cases  of  combinations  in  which  indictability 
does  not  attach,  either  to  the  end  in  view,  or  to  the  instrumentalities 
devised,  which  are  punishable  by  a  public  prosecution.  It  is  true,  that 
running  to  an  extreme,  in  the  case  of  The  State  v.  Rickey,  4  Ilalst. 
29.3,  Mr.  Justice  Ford  insisted  that,  up  to  his  day,  there  was  but  a 
single  case  extant  —  that  of  Rex  v.  Cope  et  cU.,  1  Strange,  144,  which 
held  that  an  indictment  for  a  conspiracy  would  lie  for  a  combination  of 
two  or  more  to  commit  a  private  injury  which  was  not  a  public  wrong ; 
and  he  further  insisted  that  the  case  referred  to  was  erroneously 
decided :  but  Mr.  Justice  Ryerson  did  not,  as  is  evident  from  the 
grounds  upon  which  he  rests  his  judgment,  concur  in  that  view ;  and 
the  course  of  reasoning  ado}>tcd  by  Mr.  Justice  Ford  is  now  very  gene- 
rallv  admitted  to  be  fallacious.  In  the  case  of  The  State  v.  Norton, 
3  Zab.  44,  the  view  of  llie  law  expressed  by  Mr.  Justice  Ford  is  disap- 
proved of,  and  Chief  Justice  Green,  in  stating  his  conclusion,  after  an 
examination  of  the  subject,  remarks,  "The  great  weight  of  auihorit}', 
the  adjudged  cases,  no  less  than  the  most  approved  elementary  writers, 
sustain  the  position,  that  a  conspiracy  to  defraud  individuals  or  a  cor- 
poration of  their  property,  ma}',  in  itself,  constitute  an  indictable 
offence,  though  the  act  done,  or  proposed  to  be  done  in  pursuance  of 
the  conspiracy,  be  not,  in  itself,  indictable." 

The  rule  of  law  thus  enunciated  appears  to  me  to  be  the  correct  one. 
There  are  a  number  of  cases  which  cannot  be  sustained  upon  any  other 
doctrine.  To  tliis  class  belongs  the  decision  that  it  was  a  conspiracy 
to  induce  a  young  female,  by  false  representations,  to  leave  the  protec- 
tion of  the  house  of  her  parent,  in  order  to  facilitate  her  prostitution. 
Rex  V.  Lord  Grey,  .3  Ilargrave's  State  Trials,  519;  Rex  v.  Sir 
Francis  Deleval  and  others,  3  Burr.  1434.  So  a  conspiracy  to  im- 
poverish a  tailor,  and  prevent  him,  by  indirect  means,  from  carrying  on 
his  trade,  The  King  v.  Eccles,  3  Dougl.  337.  So  a  conspiracy  to 
marry  paupers,  with  a  view  to  charge  one  parish  and  exonerate  another, 
Rex  V.  Tarrent,  4  Burr.  210G  ;  or  to  charge  a  man  with  being  the 
father  of  a  bastard,  Rex  v.  Armstrong,  1  Vent.  304  ;  Rex  v.  Kimbertv, 


SECT.  III.]  STATE  V.   DONALDSON.  1091 

1  Lev.  62 ;  Rex  v.  Timberly,  Sid.  68  ;  or  a  combination  to  impoverish 
a  class  of  persons,  Rex.  v.  Sterling,  I  Lev.  125;  s.  c.  Sid.  174. 
These  are  all  cases,  it  will  l)e  noticed,  in  which  the  act  wliich  formed 
the  foundation  of  the  indictment  would  not,  in  law,  have  constituted  a 
crime,  if  such  act  had  been  done  by  an  individual,  the  combination 
being  alone  the  quality'  of  the  transactions  which  made  them  respec- 
tively indictable. 

I  conclude,  then,  that  there  is  no  uncertainty  in  this  legal  topic  to 
this  extent,  in  addition  to  tlie  principles  before  adverted  to,  that  cases 
may  occur  in  which  the  purpose  designed  to  be  accomplished  becomes 
punitive,  as  a  public  oflfence,  solely  from  the  fact  of  the  existence  of  a 
confederac}'  to  effect  such  purpose.  It  is  certainl}-  not  to  be  denied, 
however,  that  great  practical  difficulty  is  experienced  whenever  any 
attempt  is  made  to  lay  down  any  general  rules  by  which  to  discriminate 
that  class  of  combinations  which  becomes  thus  punishable,  from  those 
which  are  to  be  regarded  in  their  results  as  mere  civil  injuries,  remedi- 
able by  private  suit.  It  may  be  safel}'  said,  nevertheless,  that  a  com- 
bination will  be  an  indictable  conspiracy,  whenever  the  end  proposed, 
or  the  means  to  be  emploj'ed  are  of  an  highly  criminal  character ;  or 
where  the}'  are  such  as  indicate  great  malice  in  the  confederates ;  or 
where  deceit  is  to  be  used,  the  object  in  view  being  unlawful ;  or  where 
the  confederacj',  having  no  lawful  aim,  tends  simply  to  the  oppression 
of  individuals.  A  careful  analysis  of  the  cases  which  have  been  hereto- 
fore adjudged,  will  reveal  the  presence  of  one  or  more  of  the  qualities 
here  enumerated ;  to  this  extent,  therefore,  they  may  be  relied  on  as 
safe  criteria  whereby  to  test  new  emergencies  as  they  may  be  presented 
for  adjudication. 

In  view,  then,  of  these  general  deductions,  and  guided  by  the  deci- 
sions above  cited,  let  us  turn  our  attention  to  the  particular  indictment 
now  before  us. 

The  substantial  offence  charged  is,  that  the  defend/ints  combined  to 
compel  their  employer  to  discharge  certain  of  their  fellow-workmen,  the 
means  adopted  to  enforce  this  concession  being  an  announced  determi- 
nation to  quit  their  employment  in  a  body  and  by  a  simultaneous  act. 
On  the  argument  before  this  court,  counsel  in  behalf  of  the  state 
endeavored  to  sustain  the  indictability  of  this  charge,  on  the  plea  that 
the  thing  thus  agreed  to  be  done  was  an  injury  to  trade,  and  conse- 
quentl}'  came  within  the  express  language  of  the  statute  on  the  subject 
of  conspirac3\  Nix.  Dig.  187,  §  61.  But  I  cannot  concur  in  this 
view.  An  act,  to  fall  within  this  provision,  must  be  one  which,  with 
directness,  inflicts  an  injury  on  trade,  as,  for  example,  a  combination 
to  depress  any  branch  of  trade  b}'  false  rumors.  But,  in  the  case 
before  us,  the  act  charged,  if  it  could  be  said  to  injure  trade  at  all,  did 
80  not  proximately,  but  remotely.  It  is  true  that,  at  a  far  remove,  an 
injury  to  an  individual  manufacturer  may  affect  trade  injuriously ;  but, 
in  the  same  sense,  so  it  is  true,  will  an  injury  inflicted  on  a  consumer 
of  manufactured  articles.     But  it  is  not  this  undesigned  and  incidental 


1092  STATE  V.   DONALDSON.  [cHAP.  XVIII. 

damage  which  is  embraced  within  the  statutoiy  denunciation.  On  this 
account,  I  think  the  indictment  does  not  present  an  affair  which  can  be 
comprehended  by  the  clause  of  the  act  which,  in  this  respect,  was  relied 
on.  But  as  it  has  already  been  decided  b}'  this  court  that  the  statute 
in  question  has  not  superseded  the  common  law,  with  regard  to  the 
crime  of  conspiracy,  The  State  v.  Norton,  3  Zab.  40,  the  question  still 
remains  to  be  resolved,  whether  the  facts  charged  on  this  record  do  not 
constitute  such  crime  upon  general  principles. 

It  appears  to  me  that  it  is  not  to  be  denied,  that  the  alleged  aim  of 
this  cornbination  was  unlawful ;  the  effort  was  to  dictate  to  this  em- 
plo3'er  whom  he  should  discharge  from  his  employ.  This  was  an 
unwarrantable  interference  with  the  conduct  of  his  business,  and  it 
seems  impossible  that  such  acts  should  not  be,  in  their  usual  effects, 
highl}'  injurious.  How  far  is  this  mode  of  dictation  to  be  held  lawful? 
If  the  manufacturer  can  be  compelled  in  this  way  to  discharge  two  or 
more  hands,  he  can,  by  similar  means,  be  coerced  to  retain  such  work- 
men as  the  conspirators  may  choose  to  designate.  So  his  customers 
may  be  proscribed,  and  his  business  in  other  respects  controlled.  I 
cannot  regard  such  a  course  of  conduct  as  lawful.  It  is  no  answer  to 
the  above  considerations  to  say,  that  the  employer  is  not  compelled  to 
submit  to  the  demand  of  his  employees  ;  that  the  penalt}'  of  refusal  is 
simply  that  the}-  will  leave  his  service.  There  is  this  coercion :  the 
men  agree  to  leave  simultaneously,  in  large  numbers  and  b}'  precon- 
certed action.  We  cannot  close  our  eyes  to  the  fact,  that  the  threat  of 
workmen  to  quit  the  manufacturer,  under  these  circumstances,  is  equi- 
valent to  a  threat,  that  unless  he  yield  to  their  unjustifiable  demand, 
thej-  will  derange  his  business,  and  thus  cast  a  heav}'  loss  upon  him. 
The  workmen  who  make  this  threat  understand  it  in  this  sense,  and  so 
does  their  employer.  In  such  a  condition  of  affairs,  it  is  idle  to  suggest 
that  the  manufacturer  is  free  to  reject  the  terms  which  the  confederates 
offer.  In  the  natural  position  of  things,  each  man  acting  as  an  indi- 
vidual, there  would  be  no  coercion  ;  if  a  single  employee  should  demand 
the  discharge  of  a  co-employee,  the  employer  would  retain  his  freedom, 
for  he  could  entertain  or  repel  the  requisition  without  embairassment 
to  his  concerns ;  but  in  the  presence  of  a  coalition  of  his  employees,  it 
would  be  but  a  waste  of  time  to  pause  to  prove  that,  in  most  cases,  he 
must  submit,  under  pain  of  often  the  most  ruinous  losses,  to  the  condi- 
tions imposed  on  his  necessities.  It  is  difficult  to  believe  that  a  right 
exists  in  law,  which  we  can  scarcely  conceive  can  produce,  in  any  pos- 
ture of  affairs,  other  than  injurious  results.  It  is  simply  the  right  of 
workmen,  by  concert  of  action,  and  b}'  taking  advantage  of  their  posi- 
tion, to  control  the  business  of  another.  I  am  unwilling  to  hold  that  a 
right  which  cannot  in  an}-  event  be  advantageous  to  the  employee,  and 
which  must  be  always  hurtful  to  the  employer,  exists  in  law.  In  my 
opinion,  this  indictment  sufficiently  shows  that  the  force  of  the  con- 
federates was  brought  to  bear  upon  their  employer  for  the  purpose  of 
oppression  and  mischief,  and  that  this  amounts  to  a  conspiracy. 


SECT.  III.]  STATE   V.   DONALDSON.  1093 

I  also  think  this  result  is  sustained  by  all  the  judicial  opinion  which 
has  heretofore  been  expressed  on  this  point.  In  substance,  the  indict- 
ment in  this  case  is  similar  to  that  in  Rex  v.  Ferguson  and  Edge,  2 
Stark.  489.  Nor  were  the  circumstances  unlike  ;  for  in  the  reported 
case,  the  defendants  were  charged  at  common  law  with  combining  to 
quit  and  turn  out  from  their  employment,  in  order  to  prevent  their 
employer  from  taking  apprentices  ;  and  although  the  case,  after  trial 
and  conviction,  was  mooted  in  the  King's  Bench  on  points  of  evidence, 
no  doubt  was  suggested  as  to  the  indictable  nature  of  the  offence,  and 
the  defendants  were  accordingly  fined  and  imprisoned.  So  in  Rex  v. 
Rickerdyke,  1  M.  &  Rob.  179,  the  same  doctrine  was  maintained.  The 
indictment  charged,  that  the  defendant,  with  others,  conspired  to  pre- 
vent certain  hands  from  working  in  the  colliery;  and  the  evidence 
showed  that  the  body  of  the  men  met  and  agreed  upon  a  letter  addressed 
to  their  employer,  to  the  effect  that  all  the  workmen  would  strike  in 
fourteen  days  unless  the  obnoxious  men  were  discharged  from  the  col- 
liery ;  and  Patterson,  Justice,  held  that  these  workmen  had  no  right  to 
meet  and  combine  for  the  purpose  of  dictating  to  the  master  whom  he 
should  employ,  and  that  this  compulsion  was  clearly  illegal.  These  two 
oases,  it  will  be  observed,  sustain  with  entire  aptness  the  opinion  above 
expressed,  and  I  have  not  found  any  of  an  opposite  tendency.  As  to 
the  case  of  The  Commonwealth  v.  Hunt,  4  Met.  Ill,  it  is  clearly  dis- 
tinguishable, and  I  concur  entirely,  as  well  with  the  principles  embodied 
in  the  opinion  which  was  read  in  the  case,  as  in  the  result  which  was 
attained.  The  foundation  of  the  indictment  in  that  case  was  the  forma- 
tion of  a  club  by  journeymen  boot-makers,  one  of  the  regulations  of 
which  was,  that  no  person  belonging  to  it  should  work  for  any  master 
workmen  who  should  employ  any  journeyman  or  other  workman  who 
should  not  be  a  member  of  such  club.  Such  a  combination  does  not 
appear  to  possess  any  feature  of  illegalit}',  for  the  law  will  not  intend, 
without  proof,  that  it  was  formed  for  the  accomplishment  of  any  illegal 
end.  "  Such  an  association,"  says  Chief  Justice  Shaw,  in  his  opinion, 
"  might  be  used  to  afford  each  other  assistance  in  times  of  poverty, 
sickness,  and  distress  ;  or  to  raise  their  intellectual,  moral,  or  social 
condition  ;  or  to  make  improvements  in  their  art ;  or  for  other  pur- 
poses." The  force  of  this  association  was  not  concentrated  with  a  view 
to  be  exerted  to  oppress  any  individual,  and  it  was  consequently 
entirely  unlike  the  case  of  men  who  take  advantage  of  their  position, 
to  use  the  power,  by  a  concert  of  action,  which  such  position  gives 
them,  to  compel  their  emplo3'er  to  a  certain  line  of  conduct.  The 
object  of  the  club  was  to  establish  a  general  rule  for  the  regulation  of 
its  members  ;  but  the  object  of  the  combination,  in  the  case  now  before 
this  court,  was  to  occasion  a  particular  result  which  was  mischievous, 
and  by  means  which  were  oppressive.  The  two  cases  are  not  parallel, 
and  must  be  governed  by  entirely  different  considerations. 

Tfie  motion  to  quash  should  not  prevail.^ 

1  See  State  v.  Glidden,  53  Conn.  46.  -Ed. 


1094  CRUMP   V.    COMMONWEALTH.  [CHAP.  XVIIL 


CRUMP  V.   COMMONWEALTH. 
Supreme  Court  of  Appeals  of  Virginia.     1888. 

[Reported  84  Va.  927.] 

Fauntleroy,  J.^  The  next  error  assigned  is  the  action  of  the  court 
in  giving  the  instruction  asked  for  by  tlie  Commonwealth,  as  follows : 
"  If  the  jurj-  believe,  from  the  evidence,  that  the  defendant  Crump 
entered  into  an  agreement  with  one  or  more  of  the  defendants,  whereby 
they  undertook  to  coerce  the  firm  of  Baughman  Brothers  to  discharge 
from  their  employment,  against  the  will  of  the  said  firm,  certain  per- 
sons then  in  their  employment,  and  to  take  into  their  employment  cer- 
tain other  persons  that  the  said  Baughman  Brothers  did  not  wish  to 
take  into  their  employment,  then  they  are  instructed  that  said  agi-ee- 
ment  was  unlawful ;  and  if  they  believe  further,  from  the  evidence, 
that  in  pursuance  and  to  carry  out  said  agreement,  he,  the  defendant, 
threatened  any  of  the  customers  of  the  said  Baughman  Brothers,  they 
(the  said  persons  making  said  agreement)  would  injure  the  business  of 
such  customers,  by  intimidating  their  customers  and  making  them  afraid 
to  continue  their  patronage  of  the  customers  of  the  said  Baughman 
Brothers,  then  they  must  find  the  defendant  guilty."  The  instruction 
plainlv  and  correctly  expounds  the  law  against  unlawful  combination 
and  guilty  conspiracy  to  interfere  with,  molest,  break  up,  and  ruin  the 
legitimate,  licensed  business  of  peaceable,  useful,  industrious,  and 
honest  citizens,  and  to  accomplish  this  end  by  the  threat  and  intimida- 
tion of  doing  "all  in  the  power"  of  the  conspirators  to  "  break  up 
and  destroy  the  business "  of  all  the  existing  or  future  customers  of 
Baughman  Brothers,  who  should  thereafter  buy  "anything  from  the 
said  firm  of  Baughman  Brothers,  or  employ  them,  the  said  Baughman 
Brothers,  in  their  said  business  as  printers."  And  the  instruction,  so 
far  from  being  a  mere  declaration  of  abstract  law,  is  a  direct  and 
proper  application  of  the  law  to  the  case  put  in  the  indictment  and 
made  by  the  evidence.  It  is  next  to  impracticable  to  extend  this  opinion 
by  reciting  the  evidence  in  detail,  further  than  we  shall  do  when  we 
come  to  consider  the  error  assigned  upon  the  admissibility  and  sutD- 
ciency  of  the  evidence  in  the  record  to  justify  the  verdict. 

The  instructions  which  were  asked  for  by  the  defendant  and  refused 
by  the  court  were  properly  refused,  as  they  did  not  correctly  expound 
the  law,  and  were  unwarranted  by  the  evidence.  And,  more  than  the 
defect  of  having  no  predication  in  the  evidence,  they  utterly  and  adroitly 
ignore  the  facts  proved  of  the  evil  intent  of  the  defendant  and  his  con- 
federates to  do  a  wanton,  causeless  injur}-  and  ruin,  to  compel  and 
coerce  Baughman  Brothers  to  give  up  the  control  and  conduct  of  their 


^  Part  ouly  of  the  opinion  is  given. 


SECT.  III.]  CKUMP   V.   COMMONWEALTH.  1095 

own  long-established,  useful,  and  independent  business  to  the  absolute 
dictation  and  control  of  a  combination  of  the  defendant  and  others 
styling  themselves  "  Richmond  Typographical  Union,  No.  90  ;  "  and  to 
do  this  by  the  obtrusion,  terrorism,  excommunication,  and  obloquy  of 
the  "boycott"  against  Baughman  Brothers  and  all  their  customers  in 
Richmond,  Lynchburg,  and  throughout  Virginia  and  North  Carolina, 
ad  infinitum,  till  they  force  the  conquest  and  submission  of  all  resist- 
ance to  their  demands  and  self-constituted  management,  —  a  reign  of 
terror,  which,  if  not  checked  and  punished  in  the  beginning  by  the  law, 
will  speedily  and  inevitably  run  into  violence,  anarchy,  and  mob  tyranny. 
We  come  now  to  the  main  question  involved  in  this  appeal,  -whether 
the  evidence  set  forth  in  this  record  presents  a  conspiracy  at  common 
law.  The  determination  of  this  question  is,  indeed,  the  object  sought, 
as  we  not  only  infer  from  the  paltry  fine  of  five  dollars  imposed  by 
the  verdict,  but  b}'  the  intimation  in  argument  by  the  able  and  accom- 
plished counsel  for  the  defendant. 

Is  "  boycotting,"  as  resorted  to  and  practised  by  the  conspirators  in 
this  case,  allowable  under  the  laws  of  Virginia? 

For  a  legal  definition  or  explanation  of  the  meaning  and  practical 
effect  of  the  cabalistic  word,  as  well  as  for  a  pertinent  exposition  of 
the  law  applicable  to  the  facts  of  this  case,  we  refer  to  the  admirable 
opinion  of  Judge  "Wellford  of  the  Circuit  Court  of  the  city  of  Rich- 
mond, in  the  case  of  Baughman  Brothers  v.  Askew,  Va.  L.  J.,  April, 
No.  196,  and  also  to  the  decision  of  the  Supreme  Court  of  Connecticut 
in  the  case  of  State  v.  Glidden,  55  Conn.  76.  In  that  case  the  court 
says:  "We  may  gather  some  idea  of  its  [boycotting]  real  mean- 
ing, however,  by  a  reference  to  the  circumstances  in  which  the 
word  originated.  Those  circumstances  are  thus  narrated  by  Mr. 
Justin  McCarthy,  an  Irish  gentleman  of  learning  and  ability,  who 
will  be  recognized  as  good  authority  :  '  Captain  Boycott  was  an  Enghsh- 
man,  an  agent  of  Lord  Erne,  and  a  farmer  of  Lough  Mask,  in  the 
wild  and  beautiful  district  of  Connemara.  In  his  capacit}'  as  agent  he 
had  served  notice  upon  Lord  Erne's  tenants,  and  the  tenantry-  sud- 
denly retaliated,  etc.  His  life  appeared  to  be  in  danger ;  he  had  to 
claim  police  protection.  ...  To  prevent  civil  war,  the  authorities  had 
to  send  a  force  of  soldiers  and  police  to  Lough  Mask,  and  Captain 
Boycott's  harvest  was  brought  in  and  his  potatoes  dug  by  the  armed 
Ulster  laborers,  guarded  always  by  the  little  army.'  "  The  court  pro- 
ceeded to  say  :  "  If  this  is  a  correct  picture,  the  thing  we  call  a  boycott 
originally  signified  violence,  if  not  murder.  .  .  .  But  even  here,  if  it 
means,  as  some  high  in  the  confidence  of  the  trades  union  assert,  abso- 
lute ruin  to  the  business  of  the  person  boycotted,  unless  he  yields, 
then  it  is  criminal."  The  essential  idea  of  boycotting,  whether  in  Ire- 
land or  the  United  States,  is  a  confederation,  generally  secret,  of  many 
persons  whose  intent  is  to  injure  another  by  preventing  any  and  all  per- 
sons from  doing  business  with  him,  through  fear  of  incurring  the  dis- 
pleasure, persecution,  and  vengeance  of  the  conspirators. 


1096  CRUMP   V.   COMMONWEALTH.  [CHAP.  XVIII. 

In  the  case  of  State  v.  Donaldson,  32  N.  J.  L.  151,  Chief  Justice 
Beasley,  in  delivering  the  opinion  of  the  court,  said :  "It  appears 
to  me  that  it  is  not  to  be  denied  that  the  alleged  aim  of  this  com- 
bination was  unlawful ;  the  effort  was  to  dictate  to  this  employer 
whom  he  should  discharge  from  his  employ.  This  was  an  unwar- 
rantable interference  with  the  conduct  of  his  business,  etc.  If  the 
manufacturer  can  be  compelled  in  this  way  to  discharge  two  or  more 
bauds,  he  can,  by  similar  means,  be  coerced  to  retain  such  workmen  as 
the  conspirators  may  choose  to  designate.  So  his  customers  may  be 
proscribed,  and  his  business,  in  other  respects,  controlled.  I  cannot 
regard  such  a  course  of  conduct  as  lawful." 

Chief  Justice  Shaw,  in  the  case  of  Commonwealth  v.  Hunt,  4  Met. 
Ill,  said:  "The  law  is  not  to  be  hoodwinked  by  colorable  pre- 
tences ;  it  looks  at  truth  and  reality  through  whatever  disguises  it 
may  assume.  li  is  said  that  neither  threats  nor  intimidations  were 
used  ;  but  no  man  can  fail  to  see  that  there  may  be  threats,  and  there 
may  be  intimidations,  and  there  may  be  molesting,  and  there  may 
be  obstructing  (which  the  jury  are  quite  satisfied  have  taken  place, 
from  all  the  evidence  in  the  case),  without  there  being  any  express 
words  used  by  which  a  man  should  show  any  violent  threats  towards 
another,  or  any  express  intimidation.  .  .  .  An  intention  to  create  alarm 
in  the  mind  of  a  manufacturer,  and  so  to  force  his  assent  to  an  altera- 
tion in  the  mode  of  carrying  on  his  business,  is  a  violation  of  law  :  " 
Regina  v.  Rowlands,  5  Cox,  C.  C.  436,  462,  463  ;  Doolittle  v.  Schan- 
bacher,  20  Cent.  L.  J.  229. 

Upon  the  trial  of  boycotters  in  New  York,  Judge  Barrett  said  : 
"  The  men  who  walk  up  and  down  in  front  of  a  man's  shop  may  be 
guilty  of  intimidation,  though  they  never  raise  a  finger  or  utter  a  word. 
Their  attitude  may,  nevertheless,  be  that  of  menace.  They  may  intim- 
idate by  their  numbers,  their  pleadings,  their  methods,  their  circulars, 
and  their  devices." 

It  matters  little  what  are  the  means  adopted  by  combinations  formed 
to  intimidate  employers,  or  to  coerce  other  journeymen,  if  the  design 
or  the  effect  of  them  is  to  interfere  with  the  rights  or  to  control  the 
free  action  of  others.  No  one  has  a  right  to  be  hedged  in  and  pro- 
tected from  competition  in  business ;  but  he  has  a  right  to  be  free  from 
wanton,  malicious,  and  insolent  interference,  disturbance,  or  annoy- 
ance. Every  man  has  the  right  to  work  for  whom  he  pleases,  and  for 
any  price  he  can  obtain  ;  and  he  has  the  right  to  deal  with  and  asso- 
ciate with  whom  he  chooses ;  or  to  let  severely  alone,  arbitrarily  and 
contemptuously,  if  he  will,  anybody  and  everybody  upon  earth.  But 
this  freedom  of  uncontrolled  and  unchallenged  self-will  does  not  give 
or  imply  a  right,  either  by  himself  or  in  combination  with  others,  to 
disturb,  injure,  or  obstruct  another,  either  directly  or  indirectly,  in  his 
lawful  business  or  occupation,  or  in  his  peace  and  security  of  life. 
Every  attempt  by  force,  threat,  or  intimidation  to  deter  or  control  an 
employer  in  the  determination  of  whom  he  will  employ,  or  what  wages 


SECT.  III.]  CRUMP  V.    COMMONWEALTH.  1097 

he  will  pay,  is  an  act  of  wrong  and  oppression  ;  and  any  and  every 
combination  for  such  a  purpose  is  an  unlawful  conspiracy.  The  law 
will  protect  the  victim,  and  punish  the  movers  of  any  such  combina- 
tion. In  law,  the  offence  is  the  combination  for  the  purpose,  and  no 
overt  act  is  necessary  to  constitute  it :  State  v.  Wilson,  30  Conn.  507  ; 
State  V.  Donaldson,  supra  ;  Walker  v.  Cronin,  107  Mass.  564 ;  Carew 
V.  Rutherford,  106  Mass.  10,  15  ;  Master  Stevedores'  Association  v. 
Walsh,  2  Daly,  12;  Walsby  v.  Auley,  3  L.  T.,  n.  s.,666  ;  Regina  v. 
Duffleld,  5  Cox,  C.  C.  432  ;  Parker  o.  Griswold,  17  Conn.  302;  Spring- 
head Spinning  Co.  v.  Riley,  L.  R.  6  Eq.  551  ,  Gilbert  v.  Mickle,  4 
Sand.  Ch.  357. 

A  wanton,  unprovoked  interference  by  a  combination  of  many  with 
the  business  of  another,  for  the  purpose  of  constraining  that  other  to 
discharge  faithful  and  long-tried  servants,  or  to  employ  whom  he  docs 
not  wish  or  will  to  employ  (an  interference  intended  to  produce,  and 
likely  to  produce,  annoyance  and  loss  to  that  business)  will  be  restrained 
and  punished  by  the  criminal  law  as  oppressive  to  the  individual,  inju- 
rious to  the  prosperity  of  the  community,  and  subversive  of  the  peace 
and  good  order  of  society. 

The  recent  case  of  State  v.  Glidden,  already  referred  to,  decided  by 
the  Supreme  Court  of  Connecticut,  is  both  in  principle  and  features 
identical  with  the  case  under  review.  The  Carrington  Publishing  Com- 
pany had  in  their  employ  a  number  of  printers  known  as  "  non-union 
men,"  or  "rats."  The  Typographical  Union,  the  Knights  of  Labor, 
the  Trades'  Council,  the  Cigar-makers'  Union,  and  other  affiUated  secret 
organizations,  waited  upon  the  company  and  demanded  that  their  office 
be  made  a  "  union  office"  within  twenty-four  hours.  Upon  the  refusal 
of  the  company  to  make  their  office  a  "union  office,"  a  boycott  was 
instituted  against  them,  which,  though  not  openl}'  published  as  in  this 
case,  was  fully  proved.  The  court  in  its  opinion  said  :  "  If  the  defend- 
ants have  the  right  which  they  claim,  then  all  business  enterprises  are 
alike  subject  to  their  dictation.  No  one  is  safe  in  engaging  in  busi- 
ness, for  no  one  knows  whether  his  business  affairs  are  to  be  directed 
by  intelligence  or  ignorance,  —  whether  law  and  justice  will  protect  the 
business,  or  brute  force,  regardless  of  law,  will  control  it ;  for  it  must 
be  remembered  that  the  exercise  of  the  power,  if  conceded,  will  by  no 
means  be  confined  to  the  matter  of  employing  help.  Upon  the  same 
principle,  and  for  the  same  reasons,  the  right  to  determine  what  busi- 
ness others  shall  engage  in,  when  and  where  it  shall  be  carried  on,  etc., 
will  be  demanded,  and  must  be  conceded.  The  principle,  if  it  once 
obtains  a  foothold,  is  aggressive,  and  is  not  easily  checked.  It  thrives 
on  what  it  feeds  on,  and  is  insatiate  in  its  demands.  More  requires 
more.  If  a  large  bodj-  of  irresponsible  men  demand  and  receive  power 
outside  of  law,  over  and  above  law,  it  is  not  to  be  expected  that  they 
will  be  satisfied  with  a  moderate  and  reasonable  use  of  it.  All  history 
proves  that  abuses  and  excesses  are  inevitable.  The  exercise  of  irre- 
aponsible  power  by  men,  like  the  taste  of  human  blood  by  tig(?rs,  creates 


1098  CRUMP   V.   COMMONWEALTH.  [CHAP.  XVIU. 

an  unappeasable  appetite  for  more.  .  .  .  Confidence  is  the  corner-stone 
of  all  business,  —  confidence  that  the  government,  through  its  courts, 
will  be  able  to  protect  their  rights ;  but  if  their  rights  [of  business 
men]  are  such  only  as  a  secret,  irresponsible  organization  is  willing  to 
give,  where  is  that  confidence  which  is  essential  to  the  prosperit}-  of  the 
country?  .  .  .  The  end  would  be  anarch}-,  pure  and  simple,  and  the 
subversion,  not  only  of  all  business,  but  also  of  law  and  the  govern- 
ment itself.  They  [defendants]  had  a  right  to  request  the  Carrington 
Publishing  Company  to  discharge  its  workmen  and  employ  themselves, 
and  to  use  all  proper  argument  in  support  of  their  request,  but  they 
had  no  right  to  say,  '  You  shall  do  this,  or  we  will  ruin  your  business.' 
Much  less  had  they  a  right  to  ruin  its  business.  The  fact  that  it  is 
designed  as  a  means  to  an  end,  and  that  end  in  itself  considered  is  a 
lawful  one,  does  not  divest  the  transaction  of  its  criminality." 

The  defendant  lays  great  stress  upon  the  case  of  Commonwealth 
V.  Hunt,  4  Met.  Ill,  as  authority  to  sustain  the  legality  of  boycot- 
ting ;  but  there  is  an  obvious  distinction  between  that  case  and  that 
of  this  defendant.  That  was  a  club  or  combination  of  journeymen 
boot-makers  simply  to  better  their  own  condition,  and  it  had  no  aim 
or  means  of  aggression  upon  the  business  or  rights  of  others ;  they 
simply  had  regulations  for  themselves,  and  did  not  combine  or  operate 
for  a  result  mischievous,  meddlesome,  and  oppressive  towards  others. 
But,  even  in  that  case,  the  court,  after  supposing  the  case  of  a  com- 
bination for  the  ultimate  and  laudable  object  of  reducing,  by  mere 
competition,  the  price  of  bread  to  themselves  and  their  neighbors,  said  : 
*'  The  legality  of  such  an  association  will,  therefore,  depend  upon  the 
means  to  be  used  for  its  accomplishment.  If  it  is  to  be  carried  into 
effect  by  fair  and  honorable  means,  it  is,  to  say  the  least,  innocent ;  if 
by  falsehood  or  force,  it  may  be  stamped  with  the  character  of  con- 
spiracy." Force  may  be  operated  either  physically  or  mechanically ;  or 
it  may  be  coercion  by  fear,  threat,  or  intimation  of  loss,  injury,  obloquy, 
or  suffering. 

The  evidence  in  this  case  shows  that  while  Baughman  Brothers  wer^ 
engaged  in  their  lawful  business  as  stationers  and  printers,  the  plaintiff 
in  error  and  the  other  members  of  the  Richmond  Typographical  Union, 
No.  90,  conspired  to  compel  Baughman  Brothers  to  make  their  office  a 
"  union  office,"  and  to  compel  them  not  to  employ  any  printer  who  did 
not  belong  to  the  said  union  ;  that  upon  the  refusal  of  Baughman 
Brothers  to  make  their  office  (or  business)  a  "  union  office,"  the  plain- 
tiff in  error  and  others  composing  the  said  Richmond  Typographical 
Union,  No.  90,  conspired  and  determined  to  boycott  the  said  firm  of 
Baughman  Brothers,  as  the}-  had  threatened  to  do,  and  sent  circulars  to  a 
great  man}'  of  the  customers  of  the  said  firm  informing  them  that  they 
had,  '*  with  the  aid  of  the  Knights  of  Labor  and  all  the  trades  organiza- 
tions in  this  city  [Richmond],  boycotted  the  establishment  of  Messrs. 
Baughman  Brothers,"  and  formalh'  notifying  the  said  customers  that  the 
names  of  all  persons  who  should  persist  in  trading,  patronizing,  or  dealing 


SECT.  III.]  CRUMP  V.    COMMONWEALTH.  1099 

with  Baughman  Brothers,  after  being  notified  of  the  boycott,  would  be 
published  weekly  in  the  Labor  Herald  as  a  "  black-list,"  who,  in 
their  turn,  would  be  boycotted  until  they  agreed  to  withdraw  their 
patronage  from  Baughman  Brothers ;  and,  accordingly,  the  employees 
of  Baughman  Brothers  were  mercilessly  hounded  b}'  publication 
after  publication,  for  months,  in  the  Labor  Herald  (which  was  the 
boasted  engine  of  the  boycotting  conspirators),  whereb}-  it  was  at- 
tempted to  excite  public  feeling  against  them,  and  prevent  them  from 
obtaining  even  board  and  shelter  ;  and  the  names  of  the  customers  and 
patrons  of  the  said  firm  were  published  in  the  said  sheet  under  the  stand- 
ing head  of  "  black-list." 

The  length  of  this  opinion  will  preclude  the  mention  of  even  a  tithe 
of  these  incendiary  publications  week  after  week  for  months  ;  but  not 
only  Baughman  Brothers  and  their  employees  and  their  customers,  but 
the  hotels,  boarding-houses,  public  schools,  railroads,  and  steamboats 
conducting  the  business  travel  and  transportation  of  the  city  were  listed 
and  published  under  the  obloquj-and  denunciation  of  the  "  black-list" 
One  or  two  specimens  will  suffice :  "  Boycott  Baughman  Brothers  and 
all  who  patronize  them."  "  Watch  out  for  Baughman  Brothers'  '  rats,' 
and  find  out  where  the}-  board.  It  is  dangerous  for  honest  men  to 
board  in  the  same  house  with  these  creatures.  They  are  so  mean  that 
the  air  becomes  contaminated  in  which  they  breathe."  "  Boycott 
Baughman  Brothers  every  day  in  the  week."  "  Bo3'cott  Baughman 
Brothers,  because  they  are  enemies  of  honest  labor."  "Boycott 
Baughman  Brothers'  customers  wherever  you  find  them."  "  The  Lynch- 
burg boys  will  begin  to  play  their  hand  on  Messrs.  Baughman 's 
boycotted  goods  in  a  short  time.  The  battle  will  not  be  fought  in 
Richmond  only,  but  in  all  Virginia  and  North  Carolina  will  be  raised 
the  cry,  'Away  with  the  goods  of  this  tyrannical  firm.'"  "Let  our 
friends  remember  it  is  the  patronage  of  the  Chesapeake  and  Ohio, 
Richmond,  Fredericksburg,  and  Potomac,  Richmond  and  Danville,  and 
Richmond  and  Alleghany  railroads  that  is  keeping  Baughman  Brothers 
up."  "  We  are  sorry  to  see  the  Exchange  Hotel  on  the  black-list. 
There  will  be  two  thousand  strangers  in  this  city  in  October,  none  of 
whom  will  patronize  a  hotel  or  boarding-house  whose  name  appears  on 
that  list."  "  The  bo^'cott  on  Baughman  Brothers  is  working  so  good 
that  a  man  cannot  buy  a  single  bristol-board  from  the  '  rat'  firm  with- 
out having  his  name  put  upon  the  black-list."  "  The  old  '  rat'  estab- 
lishment is  about  to  cave  in.  Let  it  fall  with  a  crash  that  will  be  a 
warning  to  all  enemies  of  labor  in  the  future." 

It  was  proved  that  the  conspirators  declared  their  set  purpose  and 
persistent  eflfort  to  "crush"  Baughman  Brothers;  that  the  minions  of 
the  boycott  committee  dogged  the  firm  in  all  their  transactions,  fol- 
lowed their  delivery  wagon,  secured  the  names  of  their  patrons,  and 
used  every  means  short  of  actual  physical  force  to  compel  them  to 
cease  dealing  with  Baughman  Brothers,  thereby  causing  them  to  lose 
from  one  hundred  and  fifty  to  two  hundred  customers,  and  ten  thousand 


1100         MOERIS   RUN  COAL   CO.  V.   BARCLAY   COAL   CO.      [CHAP.  XVIIL 

dollars  of  net  profit.  The  acts  alleged  and  proved  in  this  case  are 
unlawful,  and  incompatible  with  the  prosperity,  peace,  and  civilization 
of  the  country ;  and  if  they  can  be  perpetrated  with  impunity  by  com- 
binations of  irresponsible  cabals  or  cUques,  there  will  be  the  end  of 
government,  and  of  society  itself.  Freedom,  individual  and  associated, 
is  the  boon  and  the  boasted  policy  and  peculium  of  our  country ;  but  it 
is  liberty  regulated  by  law ;  and  the  motto  of  the  law  is  Sic  utere  tuo 
ut  alienum  non  Icedas. 

The  plaintiff  in  error  was  properly  convicted ;  and  the  judgment  of 
the  hustings  court  complained  of  is  affirmed. 


MORRIS   RUN   COAL   COMPANY  v.   BARCLAY   COAL 
COMPANY. 

Supreme  Court  of  Penxsylvania.     187L 

[Reported  &9,  Pa.  173.] 

Agnew,  J.^  The  effects  produced  on  the  public  interests  lead  to  the 
consideration  of  another  feature  of  great  weight  in  determining  the 
illegality  of  the  contract,  to  wit :  the  combination  resorted  to  by  these 
five  companies.  Singl}'  each  might  have  suspended  deliveries  and  sales 
of  coal  to  suit  its  own  interests,  and  might  have  raised  the  price,  even 
though  this  might  have  been  detrimental  to  the  public  interest.  There 
is  a  cei'tain  freedom  which  must  be  allowed  to  cver3-one  in  the  manage- 
ment of  his  own  affairs.  When  competition  is  left  free,  individual 
error  or  foil}'  will  generall}-  And  a  correction  in  the  conduct  of  others. 
But  here  is  a  combination  of  all  the  companies  operating  in  the  Bloss- 
burg  and  Barcla}'  mining  regions,  and  controlling  their  entire  produc- 
tions. They  have  combined  together  to  govern  the  supply  and  the 
price  of  coal  in  all  the  markets  from  the  Hudson  to  the  Mississippi 
rivers,  and  from  Pennsylvania  to  the  lakes.  This  combination  has  a 
power  in  its  confederated  form  which  no  individual  action  can  confer. 
The  public  interest  must  succumb  to  it,  for  it  has  left  no  competition 
free  to  correct  its  baleful  influence.  "When  the  supply  of  coal  is  sus- 
pended, the  demand  for  it  becomes  importunate,  and  prices  must  rise. 
Or  if  the  suppl}"  goes  forwards  the  price  fixed  by  the  confederates  must 
accompany  it.  The  domestic  hearth,  the  furnaces  of  the  iron-master, 
and  the  fires  of  the  manufacturer,  all  feel  the  restraint,  while  many  de- 
pendent hands  are  paralyzed,  and  hungry  mouths  are  stinted.  The 
influence  of  a  lack  of  suppl}-  or  a  rise  in  the  price  of  an  article  of  such 
prime  necessity,  cannot  be  measured.  It  permeates  the  entire  mass  of 
community,  and  leaves  few  of  its  members  untouched  by  its  withering 

1  Only  an  extract  from  the  opinion  \s  given. 


SECT.  III.]         MORRIS   RUN   COAL   CO.    V.    BARCLAY   COAL   CO.  1101 

blight.  Such  a  combination  is  more  than  a  contract,  it  is  an  offence. 
''I  take  it,"  said  Gibson,  J.,  "a  combination  is  criminal  whenever  the 
act  to  be  done  has  a  necessary  tendency  to  prejudice  the  public  or  to 
oppress  individuals,  by  unjustly  subjecting  them  to  the  power  of  the 
confederates,  and  giving  effect  to  the  purpose  of  the  latter,  whether  of 
extortion  or  of  mischief."  Commonwealth  v.  Carlisle,  Brightly's  Rep. 
40.  In  all  such  combinations  where  the  purpose  is  injurious  or  unlaw- 
ful, the  gist  of  the  offence  is  the  conspiracy.  Men  can  often  do  by  the 
combination  of  many,  what  severally  no  one  could  accomplish,  and 
even  what  when  done  by  one  would  be  innocent.  It  was  held,  in  The 
Commonwealth  v.  Eberle,  3  S.  &  R.  9,  that  it  was  an  indictable  con- 
spiracy for  a  portion  of  a  German  liUtheran  congregation  to  combine 
and  agree  together  to  prevent  another  portion  of  the  congregation,  by 
force  of  arms,  from  using  the  English  language  in  the  worship  of  God 
among  the  congregation.  So  a  confederacy  to  assist  a  female  infant  to 
escape  from  her  father's  control  with  a  view  to  marry  her  against  his  will, 
is  indictable  as  a  conspiracy  at  common  law,  while  it  would  have  ])een  no 
criminal  offence  if  one  alone  had  induced  her  to  elope  with  and  marry 
him.  Mifflin  v.  Commonwealth,  5  W.  &  S.  461.  One  man  or  many  may 
hiss  an  actor ;  but  if  they  conspire  to  do  it  they  may  be  punished. 
Per  Gibson,  C.  J.,  Hood  v.  Palm,  8  Barr,  238  ;  2  Russel  on  Crimes,  556. 
And  an  action  for  a  conspiracy  to  defame  will  be  supported  though  the 
words  be  not  actionable,  if  spoken  by  one.  Hood  v.  Palm,  supra. 
"Defamation  by  the  outcry  of  numbers,"  says  Gibson,  C.  J.,  "is  as 
resistless  as  defamation  by  the  written  act  of  an  individual."  And 
says  Coulter,  J.,  "  The  concentrated  energy  of  several  combined  wills, 
operating  simultaneously  and  by  concert  upon  one  individual,  is  dan- 
gerous even  to  the  cautious  and  circumspect,  but  when  brought  to  bear 
upon  the  unwary  and  unsuspecting,  it  is  fatal."  Twitchell  v.  Common- 
wealth, 9  Barr,  211.  There  is  a  potency  in  numbers  when  combined, 
which  the  law  cannot  overlook,  where  injury  is  the  consequence.  If 
the  conspiracy  be  to  commit  a  crime  or  an  unlawful  act,  it  is  easy  to 
determine  its  indictable  character.  It  is  more  difficult  when  the  act  to 
be  done  or  purpose  to  be  accomplished  is  innocent  in  itself.  Then  the 
offence  takes  its  hue  from  the  motives,  the  means,  or  the  consequences. 
If  the  motives  of  the  confederates  be  to  oppress,  the  means  they  use 
unlawful,  or  the  consequences  to  others  injurious,  their  confederation 
will  become  a  conspiracy.  Instances  are  given  in  The  Commonwealth 
V.  Carlisle,  Bright.  R.  40.  Among  those  mentioned  as  criminal  is  a 
combination  of  employers  to  depress  the  wages  of  journeymen  below 
what  they  would  be,  if  there  were  no  resort  to  artificial  means ;  and  a 
combination  of  the  bakers  of  a  town  to  hold  up  the  article  of  bread,  and 
bv  means  of  the  scarcity  thus  produced  to  extort  an  exorbitant  price 
for  it.  The  latter  instance  is  precisely  parallel  with  the  present  case. 
It  is  the  effect  of  the  act  upon  the  public  which  gives  that  case  and  this 
its  evil  aspect  as  the  result  of  confederation ;  for  any  baker  might 
choose  to  hold  up  his  own  bread,  or  coal  operator  his  coal,  rather  than 


1102       MORRIS   RUN   COii   CO.    V.   BARCLAY   COAL    CO.      [CHAP.  XVIH. 

to  sell  at  ruling  prices  ;  but  when  he  destroys  competition  by  a  combi- 
nation with  others,  the  public  can  buy  of  no  one. 

In  Rex  V.  De  Berenger,  3  M.  &  S.  67,  it  was  held  to  be  a  con- 
spiracy to  combine  to  raise  the  public  funds  on  a  particular  day  by  false 
rumors.     The  purpose  itself,  said  Lord  Ellenlx)rough,  is  mischievous 

it  strikes  at  the  price  of  a  valuable  commodity  in  the  market,  and 

if  it  gives  it  a  fictitious  price  by  means  of  false  rumors,  it  is  a  fraud 
levelFed  against  the  public,  for  it  is  against  all  such  as  may  possibly 
have  anything  to  do  with  the  funds  on  that  particular  day.     Every 
"corner/'  in  the  language  of  the  day,  whether  it  be   to  affect  the 
price  of  articles  of  commerce,  such  as  breadstuffs.  or  the  price  of  vend- 
ible stocks,  when  accomplished  by  confederation  to  raise  or  depress 
the  price  and  operate  on  the  markets,  is  a  conspiracy.     The  ruin  often 
spread  abroad  by  these   heartless    conspiracies  is   indescribable,   fre- 
quently filling  the  land  with  starvation,  iwverty,  and   woe.      Every 
association  is  criminal  whose  object  is  to  raise  or  depress  the  price 
of  labor   beyond  what  it  would   bring  if  it  were  left  without  artifi- 
cial aid  or  stimulus.     Res  v.  Byerdikc,  1  M.  &  S.  179.     In  the  case  of 
such  associations  the  illegality  consists  most  frequently  in  the  means 
employed  to  carry  out  the  object.     To  fix  a  standard  of  prices  among 
men  in  the  same  employment,  as  a  fee  bill,  is  not  in  itself  criminal,  but 
may  become  so  when  the  parties  resort  to  coercion,  restraint,  or  penal- 
ties upon  the  employed  or  employers,  or  what  is  worse  to   force  of 
arms.     If  the  means  be  unlawful  the  combination  is  indictable.     Com- 
monwealth V.  Hunt,  4  Met.  HI.     A  conspiracy  of  journeymen  of  any 
trade  or  handicraft  to  raise  the  wages  by  entering  into  combination  to 
coerce  journeymen  and  master-workmen  employed  in  the  same  branch 
of  industry  to  conform  to  rules  adopted  by  such  combination  for  the 
purpose  of  regulating  the  price  of  labor,  and  carrying  such  rules  into 
effect  by  overt  acts,  is  indictable  as  a  misdemeanor.     3  "NVhart.  C.  L., 
citing  The  People  v.  Fisher,    14  Wend.  9.      Without  multiplying  ex- 
amples, these  are  sufficient  to  illustrate  the  true  aspect  of  the  case 
before  us,  and  to  show  that  a  combination  such  as  these  companies 
entered  into  to  control  the  supply  and  price  of  the  Blossburg  and  Bar- 
clay regions  is  illegal,  and  the  contract  therefore  void.^ 

1  "  Owners  of  goo<i.s  have  a  right  to  expect  at  an  auction  that  there  will  be  an  open 
competition  from  the  public  ;  and  if  a  knot  of  men  go  to  an  auction  upon  an  agree- 
ment among  themselves  of  the  kind  that  has  been  described,  they  are  guilty  of  an 
indictable  offence,  and  may  be  tried  for  a  conspiracy."  Gurney,  B.,  in  Levi  r.  Levi, 
9C.  &P.  239.  — Ed. 


APPENDIX 


The  following  definitions  of  the  principal  crimes  are  taken  chiefly  from  Black- 
stone's  Commentaries,  and  from  the  codes  and  statutes  of  California,  ^jjjjjana,  New 
York,  and  Ohio.  It  is  believed  that,  so  far  as  the  common-law  definitions  "of  these 
crimes  have  been  changed  in  anv  jurisdiction  by  statute,  the  changes  will  not 
materially  vary  from  those  here  given. 

Treason. 

Const.  U.  S.,  art.  3,  sec.  3.  Treason  against  the  United  States  shall  consist  only  in 
levving  war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and  com- 
fort. No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two  wit- 
nesses to  the  same  overt  act,  or  on  confession  in  open  court. 

For  treason  in  England,  see  4  Bl.  Com.  74. 

N.  Y.  Penal  Code,  sees.  37-40.  Treason  against  the  people  of  the  state  con- 
sists in 

1.  Levving  war  against  the  people  of  the  state,  within  this  state  ;  or 

2.  A  combination  of  two  or  more  persons  by  force  to  usurp  the  government  of  the 
state,  or  to  overturn  the  same,  shown  by  a  forcible  attempt,  made  within  the  state, 
to  accomplish  that  purpose ;   or 

3.  Adhering  to  the  enemies  of  the  state,  while  separately  engaged  in  war  with  a 
foreign  enemv,  in  a  case  prescribed  in  the  constitution  of  the  United  States,  or  giving 
to  such  enemies  aid  and  comfort  within  the  state  or  elsewhere. 

Treason  is  punishable  by  death. 

To  constitute  le\"ying  war  against  the  people  of  this  state,  an  actual  act  of  war 
must  be  committed.     To  conspire  to  leyj'  war  is  not  enough. 

■  Where  persons  rise  in  insurrection  with  intent  to  prevent  in  general,  by  force  and 
intimidation,  the  execution  of  a  statute  of  this  state,  or  to  force  its  repeal,  they  are 
guilty  of  levving  war.  But  an  endeavor,  although  by  numbers  and  force  of  anns,  to 
resist  the  execution  of  a  law  in  a  single  instance,  and  for  a  private  purpose,  is  not 
levying  war. 

Cal.  Pen.  Code,  sees.  37-38.  Treason  against  this  state  consists  only  in  levying  war 
against  it,  adhering  to  its  enemies,  or  giving  them  aid  and  comfort,  and  can  be  com- 
mitted onlv  bv  persons  o^nng  allegiance  to  this  state.  The  punishment  of  treason 
shall  be  death. 

]SIisprision  of  treason  is  the  knowledge  and  concealment  of  treason,  without  other- 
wise assenting  to  or  partaking  in  the  crime.  It  is  punishable  by  imprisonment  in 
the  state  prison  for  a  term  not  exceeding  five  years. 

(This  is  the  common  form  of  definition.     Ohio  inserts  the  word  "  knowingly.") 

Escape,  Rescue,  etc. 

4  Bl.  Com.  129-131.  An  escape  of  a  person  arrested  upon  criminal  process 
bv  eluding  the  vigilance  of  his  keepers  before  he  is  put  in  hold  is  also  an  offence 
ao^ainst  public  justice,  and  the  party  himself  is  punishable  by  fine  or  imprisonment ; 
but  the  ofiicer  permitting  such  escape,  either  by  negligence  or  connivance,  is  much 
more  culpable  than  the  prisoner. 

Breach  of  prison  by  the  offender  himself,  when  committed  for  any  cause,  was  felony 
at  the  common  law ;  or  even  conspiring  to  break  it :  but  this  severity  is  mitigated  by 


1104  APPENDIX. 

the  statute  1  Edw.  II.,  which  enacts  that  no  person  shall  have  judgment  of  life  or 
member  for  breaking  prison,  unless  committed  for  some  capital  offence. 

Kescue  is  the  forcibly  and  knowingly  freeing  anotlier  from  an  arrest  or  imprisonment. 

Barretry. 

4  Bl.  Com.  134.  Common  barretry  is  the  offence  of  frequently  exciting  and  stirring 
up  suits  and  quarrels  between  his  majesty's  subjects,  either  at  law  or  otherways. 

N.  Y.  Pen.  Code,  sec.  132.  Common  barratry  is  the  practice  of  exciting  groundless 
judicial  proceedings. 

Maintenance. 

4  Bl.  Com.  134.  Maintenance  is  ...  an  officious  intermeddling  in  a  suit  that  no 
way  belongs  to  one  by  maintaining  or  assisting  either  party  with  money  or  otherwise 
to  prosecute  or  defend  it.  .  .  .  A  man  may,  however,  maintain  the  suit  of  his  near 
kinsman,  servant,  or  poor  neighbour,  out  of  charity  and  compassion,  witli  impunity. 

Cal.  Pen.  Code,  sec.  161.  Every  attorney  Avho,  eitlier  directly  or  indirectly,  buys 
or  is  interested  in  buying  any  evidence  of  debt  or  thing  in  action,  with  intent  to  bring 
suit  thereon,  is  guilty  of  a  misdemeanor. 

Champerty. 

4  Bl.  Com.  IS.*}.  Champerty,  campi-patiitio,  is  ...  a  bargain  with  a  plaintiff  or 
defendant  campum  partire,  to  divide  the  land  or  other  matter  sued  for  between  them 
if  they  prevail  at  law ;  whereupon  the  charaperter  is  to  carry  on  the  party's  suit  at 
his  own  expense. 

(These  crimes  are  obsolete  in  most  states.) 

E77ibracery. 

4  Bl.  Com.  140.  Embracery  is  an  attempt  to  influence  a  jury  corruptly  to  one  side 
by  promises,  persuasions,  entreaties,  money,  entertainments,  and  the  like. 

Extortion. 

4  Bl.  Com.  141.  Extortion  is  an  abuse  of  public  justic^e,  which  consists  in  any  officer's 
unlawfully  taking,  by  colour  of  his  office,  from  any  man,  any  money  or  thing  of  value, 
that  is  not  due  to  him,  or  more  than  is  due,  or  before  it  is  due. 

Perjury. 

4  Bl.  Com.  137.  Perjury  is  .  .  .  committed  when  a  lawful  oath  is  administered  in 
some  judicial  ])roceeding  to  a  person  who  swears  wilfully,  absolutely  and  falsely  in  a 
matter  material  to  the  issue  or  point  in  question. 

Subornation  of  perjury  is  the  offence  of  procuring  another  to  take  such  a  false  oath 
as  constitutes  perjury  in  tlie  principal. 

Cal.  Pen.  Code,  118.  Every  person  who,  having  taken  an  oath  that  he  will  testify, 
declare,  depose,  or  certify  truly  before  any  competent  tribunal,  officer  or  person,  in 
any  of  the  cases  in  which  such  an  oath  may  by  law  be  administered,  willfully  and  con- 
trary to  such  oath,  states  as  true  any  material  matter  which  he  knows  to  be  false,  is 
guilty  of  perjury. 

Ind.  Rev.  Stat.,  sec.  2006.  Whoever,  having  taken  a  lawful  oath  or  affirmation  in 
any  matter  in  which,  by  law,  an  oath  or  affirmation  may  be  required,  shall,  upon  such 
oath  or  ailirmation,  swear  or  affirm  willfully,  corruptly,  and  falsely  touching  a  matter 
material  to  the  point  in  question,  shall  be  deemed  guilty  of  perjury.  .  .  • 

Oh.  Rev.  Stat.,  sec.  6897.    Whoever,  either  verbally  or  in  writing,  on  oath  lawfully 


APPENDIX,  1105 

administered,  willfully  and  corrnptly  states  a  falsehood,  as  to  any  material  matter,  in  a 
proceeding  before  any  court,  tribunal  or  officer  created  by  law,  or  in  any  matter  in  relar 
tion  to  which  an  oath  is  authorized  by  law,  is  guilty  of  perjury,  and  shall  be  imprisoned 
in  the  penitentiary  not  more  than  ten  nor  less  than  three  years. 

N.  Y.  Pen.  Code,  sees.  96-99,  101.  A  person  who  swears  or  affirms  that  he  will 
truly  testify,  declare,  depose,  or  certify,  or  that  any  testimony,  declaration,  deposition, 
certificate,  affidavit,  or  other  writing  by  him  subscribed,  is  true,  in  an  action,  or  a 
special  proceeding,  or  upon  any  hearing,  or  inquiry,  or  on  any  occasion  in  which  an 
oath  is  required  by  law,  or  is  necessary  for  the  prosecution  or  defense  of  a  private  right, 
or  for  the  ends  of  public  justice,  or  may  lawfully  be  administered,  and  who  in  such 
action  or  proceeding,  or  on  such  hearing,  inquiry  or  other  occasion,  willfully  and  know- 
ingly testifies,  declares,  deposes  or  certifies  falsely,  in  any  material  matter,  or  states 
in  his  testimony,  declaration,  deposition,  affidavit,  or  certificate,  any  material  matter 
to  be  true  which  he  knows  to  be  false,  is  guilty  of  perjury. 

It  is  no  defense  in  a  prosecution  for  perjury  that  an  oath  was  administered  or  taken 
in  an  irregular  manner.  .  .  . 

It  is  no  defense  to  a  prosecution  for  perjury  that  the  defendant  was  not  competent 
to  give  the  testimony,  deposition,  or  certificate  of  which  falsehood  is  alleged.  It  is 
sufficient  that  he  actually  was  permitted  to  give  such  testimony  or  make  such  deposi- 
tion or  certificate. 

It  is  no  defense  to  a  prosecution  for  perjury  that  the  defendant  did  not  know  the 
materiality  of  the  false  statement  made  by  him  ;  or  that  it  did  not  in  fact  affect  the 
proceeding  in  and  for  which  it  was  made.  It  is  sufficient  that  it  was  material,  and 
might  have  affected  such  proceeding. 

An  unqualified  statement  of  that  which  one  does  not  know  to  be  true  is  equivalent 
to  a  statement  of  that  which  he  knows  to  be  false. 

Affray. 

4  Bl.  Com.  145.  Affrays  (from  affraier,  to  terrify)  are  the  fighting  of  two  or  more 
persons  in  some  public  place,  to  the  terror  of  his  majesty's  subjects  :  for,  if  the  fight- 
ing be  in  private,  it  is  no  affray  but  an  assault.  Affrays  may  be  suppressed  by  any 
private  person  present,  who  is  justifiable  in  endeavouring  to  part  the  combatants, 
whatever  consequence  may  ensue.  But  more  especially  the  constable,  or  other  similar 
officer,  however  denominated,  is  bound  to  keep  the  peace ;  and  to  that  purpose  may 
break  open  doors  to  suppress  an  affray,  or  apprehend  the  affrayers ;  and  may  either 
carry  them  before  a  justice,  or  imprison  them  by  his  own  authority  for  a  convenient 
space  till  the  heat  is  over ;  and  may  then  perhaps  also  make  them  find  sureties  for 
the  peace. 

Hiot,  etc. 

4  Bl.  Com.  146.  Riots,  routs,  and  unlawful  assemblies,  must  have  three  persons  at 
least  to  constitute  them.  An  unlawful  assembly  is  when  three  or  more  do  assemble 
themselves  together  to  do  an  unlawful  act,  as  to  pull  down  enclosures,  to  destroy  a 
warren  or  the  game  therein ;  and  part  without  doing  it,  or  making  any  motion 
towards  it.  A  rout  is  where  three  or  more  meet  to  do  an  unlawful  act  upon  a  common 
quarrel,  as  forcibly  breaking  down  fences  xipon  a  right  claimed  of  common  or  of  way  ; 
and  make  some  advances  towards  it.  A  riot  is  where  three  or  more  actually  do  an 
unlawful  act  of  violence,  either  with  or  without  a  common  cause  or  quarrel :  as  if 
they  beat  a  man  ;  or  hunt  and  kill  game  in  another's  park,  chase,  warren,  or  liberty ; 
or  do  any  other  unlawful  act  with  force  and  violence ;  or  even  do  a  lawful  act,  as 
removing  a  nuisance,  in  a  violent  and  tumiiltuous  manner. 

Forcible  Entry. 

4  Bl.  Com.  148.  Forcible  entry  or  detainer  is  committed  by  violently  taking  or 
keeping  possession  of  lands  and  tenements  with  menaces,  force  and  arms,  and  without 
the  authoritv  of  law.     (So  Ind.) 

70 


1106  APPENDIX. 

Cal.  Pen.  Code,  sec.  418.  Every  person  using,  or  procuring,  encouraging,  or  assist- 
ing another  to  use,  any  force  or  violence  in  entering  upon  or  detaining  any  lands  or 
other  possessions  of  another,  except  in  the  cases  and  in  the  manner  allowed  by  law,  ia 
guilty  of  a  misdemeanor.     (So  New  York.) 

Murder. 

See  ante,  pp.  461,  471. 

Manslaughter. 

See  ante,  p.  473. 

See  a  division  of  this  crime  into  degrees  in  New  York,  Pen.  Code,  sees.  189  to  201. 

Mayhem. 

See  ante,  p.  419. 

Bape. 
See  ante,  pp.  419,  455. 

Rohhery. 
See  ante,  pp.  419,  699. 

Assault  and  Battery. 
See  ante,  pp.  420-434. 

Arson. 

See  ante,  p.  797. 

For  degrees  of  ar.son,  see  N.  Y.  Pen.  Code,  sees.  486-488. 

Burglary. 

See  ante,  p.  780. 

For  degrees  of  burglary,  see  N.  Y.  Pen.  Code,  sees.  496-498. 

Larceny  and  Kindred  Crimes. 

See  ante,  pp.  488  ff.,  706,  718,  758. 

Cal.  Pen.  Coile,  sees.  484,  503,  532.  Larceny  is  the  felonious  stealing,  taking, 
carrying,  leading,  or  driving  away  the  personal  property  of  another. 

Embezzlement  is  the  fraudulent  appropriation  of  property  by  a  person  to  whom  it 
has  been  intrusted. 

Everv  person  who  knowingly  and  designedly,  by  false  or  fraudulent  representation 
or  pretenses,  defrauds  any  other  person  of  money  or  property,  or  who  caases  or  pro- 
cures others  to  report  falsely  of  his  wealth  or  mercantile  character,  and  by  thus 
imposing  upon  any  person  obtains  credit,  and  thereby  fraudulently  gets  into  possession 
of  money  or  property,  is  punishable,  .  .  . 

N.  Y.'Pen.  Code,  Sec.  528.  A  person  who,  with  the  intent  to  deprive  or  defraud 
the  true  owner  of  his  property,  or  of  the  use  and  benefit  thereof,  or  to  appropriate  the 
same  to  the  use  of  the  taker,  or  of  any  other  person,  either, 

1.  Takes  from  the  possession  of  the  true  owner,  or  of  any  other  person  ;  or  obtains 
from  such  possession  by  color  or  aid  of  fraudulent  or  false  representation  or  pretense, 
or  of  any  false  token  or  writing  ;  or  secretes,  withholds,  or  appropriates  to  his  own 
use,  or  that  of  any  person  other  tlian  the  true  owner,  any  money,  personal  property, 
thing  in  action,  e\Hdence  of  debt  or  contract,  or  article  of  value  of  any  kind ;  or 

2.  Having  in  his  possession,  custody,  or  control,  as  a  bailee,  servant,  attorney, 
agent,  clerk,  trustee,  or  officer  of  any  person,  association,  or  corporation,  or  as  a  public 
officer,  or  as  a  person  authorized  by  agreement,  or  by  competent  authority,  to  hold  or 
take  such  possession,  custody  or  control,  a)iy  money,  property,  evidence  of  debt  or 


APPENDIX.  1107 

contract,  article  of  value  of  any  nature,  or  thing  in  action  or  possession,  appropriates 
the  same  to  his  own  use,  or  that  of  any  other  person  other  than  the  true  owner  or 
person  entitled  to  the  benefit  thereof ; 

Steals  such  property,  and  is  guilty  of  larceny. 

Mass.  R.  L.  ch.  208,  Sect.  26.  Whoever  steals,  or,  with  intent  to  defraud,  obtains 
by  a  false  pretence,  or  whoever  unlawfully  and,  with  intent  to  steal  or  embezzle,  con- 
verts or  secretes  with  intent  to  convert,  the  money  or  personal  chattel  of  another, 
whether  such  money  or  personal  chattel  is  or  is  not  in  his  possession  at  the  time  of 
such  conversion  or  secreting,  shall  be  guilty  of  larceny. 

Malicious  Mischief. 

4  Bl.  Com.  244.  Malicious  mischief,  or  damage,  is  the  next  species  of  injury  to 
private  property,  which  the  law  considers  as  a  public  crime.  This  is  such  as  is  done, 
not  animo  furandi  or  with  an  intent  of  gaining  by  another's  loss ;  which  is  some, 
though  a  weak  excuse :  but  either  out  of  a  spirit  of  wanton  cruelty,  or  black  and 
diabolical  revenge.  In  which  it  bears  a  near  relation  to  the  crime  of  arson ;  for  as 
that  affects  the  habitation,  so  this  does  the  other  property,  of  individuals. 

Forgery. 

4  Bl.  Com.  247.  Forgery  or  the  crimen  falsi  is  .  .  .  the  fraudulent  making  or 
alteration  of  a  writing  to  the  prejudice  of  another  man's  right. 

Oh.  Rev.  Stat.  sec.  7091.  Whoever  falsely  makes,  alters,  forges,  counterfeits,  prints 
or  photographs  any  (here  are  enumerated  such  instruments  as  may  be  forged)  with 
intent  to  defraud ;  or  utters  or  publishes  as  true  and  genuine  any  such  false,  altered, 
forged,  counterfeited,  falsely  printed  or  photographed  matter,  knowing  the  same  to 
be  false,  altered,  forged,  counterfeited,  falsely  printed  or  photographed,  with  intent  to 
defraud,  is  guilty  of  forgery. 

(This  is  substantially  the  form  of  statute  in  most  states.  For  degrees  of  forgery, 
see  N.  Y.  Pen.  Code,  sees.  509-519.) 

Piracy. 

4  Bl.  Com.  72.  The  offence  of  piracy  by  common  law  consists  in  committing  those 
acts  of  robbery  and  depredation  upon  the  high  seas  which,  if  committed  upon  land, 
would  have  amounted  to  felony  there. 

2  Bish.  Crim.  Law,  sec.  1058.  Piracy  is  any  forcible  depredation  on  the  high  sea? 
perpetrated  in  general  hostility  to  mankind  for  the  gain  or  other  private  ends  of 
the  doers. 


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